England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/07/2016

MRS JUSTICE NICOLA DAVIES:

1. This is the defendant's appeal of the decision of Master McCloud dated 9 May 2016 whereby she rescinded her direction made on 18 March 2016 releasing to a judge the claimant's application dated 20 November 2015 to amend her Particulars of Claim to add three new causes of action and to plead a claim in aggravation of damage. All of the new causes of action are time barred, one of which is a claim for slander. Permission to appeal was granted by Laing J on 8 July 2016.

Background to the Proceedings.

2. The claimant in these libel proceedings is a former employee of Troika Dialog Group, a financial services group now merged with Sberbank CIB ("the Bank"). The claimant was employed in equity sales from 20 June 2011 until her resignation on 18 April 2012. She reported to the defendant who was the head of Equity Sales UK at the Bank. He was employed by the Bank in Moscow from 1 June 2004, thereafter from 3 May 2011 until his resignation on 12 April 2013. Following her resignation from the Bank the claimant brought Employment Tribunal proceedings against the Bank, the defendant and another senior colleague for sex discrimination, harassment, victimisation and unlawful unfair dismissal. The claimant was successful in the employment proceedings and was awarded £3.4 million gross in damages including £44,000 for damages for injury to her health and feelings arising from the derogatory statements made about her by the defendant and £15,000 in aggravated damages regarding a false allegation that she was a drug user.
3. On 14 June 2012 the claim form in these proceedings was issued; it was not served until October 2012. In these proceedings the claimant alleges libel in respect of 6 emails and Bloomberg "instant chat" messages to seven individuals and one slander. All of the publications initially complained of took place between June and December 2011. Following notification of the claim the defendant apologised, offered compensation, payments of costs and undertakings not to repeat. Such offers have been repeated on an open basis. He has made an Offer of Amends and has offered to join in the making of a Statement in Open Court. The last offer was made on 23 November 2015.
4. The claimant also issued libel proceedings against another employee of the bank, Mr Tymula. The claimant sought to have those proceedings consolidated with these. The Tymula proceedings were struck out by Dingemans J on 12 February 2016, Lokhova v. Tymula [2016] EWHC 225. The judge held that the claimant had been guilty of significant and unexplained delay in the period between early April 2015 and the issue of her application for a direction pursuant to section 32A of the Limitation Act 1980 ("the 1980 Act") which he refused. He also took account of what he regarded as the inherent weakness of the claim. Permission to the claimant to appeal that decision was refused on 18 April 2016 by Christopher Clarke LJ. The claimant seeks to renew that application at an oral hearing on 30 November 2016.

The substance of the claimant's application to amend.

5. This application was issued by the claimant on 20 November 2015, the same date as her application for a section 32A direction in the Tymula proceedings. The application consists of the following:

i) An application to amend/plead a new time barred claim arising from the publication dated 12 May 2011 to a Mr Mark Van Loon, a colleague based in the bank's Moscow office. It would appear that the claimant was aware of this email at the time she issued the proceedings on 14 June 2012;

ii) An application to amend/plead a new time barred libel claim arising from the publication of an email dated 22 May 2011 to a personal friend of the defendant. The claimant was provided with a copy of the email by, the latest, on 19 February 2013. The publishee is now deceased.

iii) An application to amend/plead a new time barred slander claim in respect of words alleged to have been spoken by the defendant on 5 February 2014 to a Mr Dayan of BCS Financial Group. The claimant's knowledge of the words is alleged to come from a third party who was not present in the room when the words were allegedly spoken. The claimant was not told of this for a year after it was alleged to have occurred and it was a further six months before the claimant notified the defendant of this allegation.

iv) An application to amend to plead for the first time a substantial case in aggravation of damages.

Procedural history of the application.

6. The application notice was served on 20 November 2015. In her application notice the claimant stated that the application should be heard by a "High Court Judge". At that stage the issue of consolidation with the Tymula proceedings was live. Following the strike out of those proceedings the claimant then sought to have the application heard by a Master. The defendant sought to have the matter heard by a judge. On 16 March 2016 Master McCloud listed a case management conference for 9 May 2016 with a one hour time estimate. On 18 March 2016 the Master considered paper submissions provided on behalf of the defendant (dated 15 March 2016) in support of his contention that the application should be released to be heard by a judge with a one day time estimate and made a direction to that effect. On 30 March 2016 Queen's Bench listing wrote to the parties stating that the hearing of the application had been placed in the warned list for the week commencing 18 April 2016. On 7 April 2016 the claimant issued an application seeking to set aside the Master's decision to release the matter to a judge.

Hearing before Master McCloud on 9 May 2016.

7. The hearing, listed for one hour, lasted an hour and a half. The parties were represented by junior counsel; Mr Sherborne for the claimant, Ms Skinner for the defendant. The defendant contended that although the Master had jurisdiction to hear the application she should release it to be heard by a judge pursuant to CPR PD 2B para 1.2 and para 6.3.12 of the Queen's Bench Guide (2016 edition) because the application raised issues of unusual difficulty or importance. The defendant relied upon the fact that an issue arose on the construction of section 35 (3) of the 1980 Act, namely whether the effect of the section, together with CPR 17.4 (2), is to preclude the court from exercising any discretion, pursuant to section 35 or separately pursuant to section 32A of the 1980 Act. In Komarek v. Ramco Energy Plc, an unreported decision of Eady J in 21 November 2002, [2002] EWHC B2 (QB), the judge found that no such discretion existed. However, conflicting views have been expressed by way of obiter dicta by the Court of Appeal in Otuo v. Brierley [2016] EMLR 6. The claimant's case was that the issue was a straightforward one. It was for the court to determine whether the new causes of action arose from the same or substantially the same facts (CPR 35(3)); consideration of the section 32A discretion was not relevant.
8. In her extemporary judgment the Master noted that this was an interim application to make amendments out of time to a statement of case. She stated that it is "the sort of thing that Masters deal with day in and day out when not hearing more weighty applications and it is not at all unusual for decisions of puisne judges to be cited and argued over." The Master made reference to the judgment of Eady J in Komarek as follows:

"4. As things stand there is of course no decision of relevance which I disagree with at all, rather the application is currently put on the basis that I would be bound by a particular decision of Eady J and hence that if submissions are to be made inviting departure from that decision then I should, or perhaps must, release it to a puisne judge since I cannot depart from his decision even if it is wrong. I disagree.

5. If it might be necessary, at the ultimate hearing of the underlying application, to consider the relevance of a decision of Mr. Justice Eady as part of the argument, and possibly for me to consider whether I think it is wrong, then that has to be a factor for me to take into account as to whether it is appropriate for me to hear it, but that does imply that I am bound to release it. It seems to me, looking at this case, that there are arguments to the effect that this application actually turns on its own merits and facts. There are arguments both ways, of course and I am not at this point hearing the application itself……

8.If it boils down to an argument over whether a decision of Mr. Justice Eady is one which I think is clearly wrong then I can hear that argument and it may then be for the Court of Appeal, or a puisne judge constituted as the appeal court to decide. It may very well not boil down to that, however. It may very well boil down to the application being decided on its own merits and facts as so many are. But it does not seem to me that this is an appropriate case for me to depart from the conventional approach which is that I should decide this application on its merits and, if I am wrong, I can be appealed to the relevant appeal court.

9. I have to remind myself also that, by and large – if you look at Wood and in particular, and indeed the Good case, the Lloyds case and so on all of those cases pre-date the changes to the overriding objective that does require me to manage cases proportionately as to cost and in a proportionate way in a wider sense as well. It does involve using appropriate levels of judiciary for appropriate decisions and increasingly gone or going are the days where one would expect to hear argument that something was "difficult" and, therefore, decline to decide it. Increasingly, in my judgment there is a principle to be applied that judicial decisions should be made at the appropriate judicial level and in the appropriate court (both as between High Court and County Court and in relation to geographical location and judicial availability). I think it is right to read that principle in to the concept of "proportionate case management" and proper use of court resources….."

9. The Master did not accept that by not releasing the case to a judge it would cause a material delay. She accepted that she would not be able to hear the case before October, but referred to the fact that the claimant's counsel would not be available to hear the case at an earlier date.

Grounds of Appeal

10. The Master's decision is said to be plainly wrong and/or outside the ambit of discretion reasonably available to her:

Ground 1

There was no good reason for the Master to rescind her earlier decision, which was plainly correct; further or alternatively the Master was wrong to determine that she should hear the application herself.

Ground 2

There were further discrete factors relevant to the furtherance of the overriding objective, relating to delay and cost which mandated that the application be heard by a judge.

Ground 3

To the extent that the Master did give reasons for her decision these reasons were inadequate and/or wrong. Further she failed to take into account, or give proper weight to, the factors addressing Grounds 1 and 2.

Ground 4

The decision raises an important point of practice and procedure, at least in defamation cases where CPR 17.4 (2) is engaged, and until such a time as to the uncertainty over the relationship between CPR 17. 4 (2) and section 32A has been judicially resolved.

The Law/ Guidance.

11. The Supreme Court and the Court of Appeal have emphasised the importance of judges in higher courts supporting first instance judges' case management decisions, which are always exercises of discretion entrusted to the judge managing the case.

Broughton v Kop Football (Cayman Limited) [2012] EWCA Civ 1473. Lewison LJ at [3] and [51]:

"3. I emphasise that the appeal is against the judge's orders and not an appeal against remarks which he made during the course of the hearings. In paragraph 7.2 of Jackson LJ's report on Costs in Civil Proceedings he put forward the view that he regarded it as vital that the Court of Appeal supports first instance judges who make robust but fair case management decisions. This principle has been affirmed on a number of occasions in this court save for example Deripaska v. Cherney [2012] EWCA Civ 1235 and Stokors SA v. IG Markets Limited [2012] ALL ER (d) 31 (NOB), [2012] EWCA Civ 1706……

51. Case management decisions are discretionary decisions. They often involve an attempt to find the least worse solution where parties have diametrically opposed interests. The discretion involves entrusted to the first instance damage. An appellate court does not exercise the discretion for itself. It can interfere with the exercise of the discretion by a first instance judge where he has misdirected himself in law, has failed to take relevant factors into account, has taken into account irrelevant factors or has come to a decision that is plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree. So the question is not whether we would have made the same decision as the judge. The question is whether the judge's decision was wrong in the sense that I have explained."

The decision in Broughton was affirmed by the Supreme Court in Global Torch Limited v Apex Global Management Limited & ors (2) [2014] 1 WLR 4495 where Lord Neuberger PSC stated "it would be inappropriate for an appellate court to reverse or otherwise interfere with [a case management decision] unless it was "plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree".

12. The Queen's Bench Guide (2016 edition)

"6.3.12. If the Master considers that an application should more properly be heard by a judge, he may either during the hearing or before it takes place refer the application to the Interim Applications Judge. See in particular PD2B para 1.2. Among the circumstances that may make this appropriate are:

That the time required for the hearing is longer than a Master could ordinarily make available;

That the application raises issues of unusual difficulty or importance etc;

That the outcome is likely to affect the trial date or window (in which case the referral will be to the Judge in Charge of the Lists).

However it is emphasised that no single factor or combination of factors is necessarily decisive, and the Master has a complete discretion".

13. The Limitation Act 1980

"4A" Time limit for actions for defamation or malicious falsehood

The time limit under section 2 of this Act shall not apply to an action for-

(a) libel or slander

(b) slander of title, slander of goods or other malicious falsehood.

but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued.

Section 32A of the Limitation Act 1980 gives the court a discretionary power to exclude the statutory time limit in actions for defamation or malicious falsehood.

"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –

(c) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and

(d) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

The court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates.

(1) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –

(a) the length of, and the reason for, the delay on the part of the plaintiff;

(b) where the reason, or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A-

(i) the date on which any such facts did become known to him, and

(ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and

c) the extent to which, having regard to the delay, relevant evidence is likely-

ii) to be unavailable, or

iii) to be less cogent than if the action had been brought within the period mentioned in section 4A.

Section 35 of the 1980 Act relevantly provides:

"35 New claims in pending actions: rules of the court.

(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced –

(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and

(b) in the case of any other new claim, on the same date as the original action……..

(2) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor [the county] court shall allow a new claim within subsection (1) (b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.

(3) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restriction the rules may impose.

(4) The conditions referred to in subsection (4) above are the following-

(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and

(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action".

14. CPR 17.4 applies where a party applies to amend the statement of case when a period of limitation has expired under the Limitation Act 1980.

Rule 17.4.2 provides:

"(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.

The defendant's case

15. The application raises difficult issues of law concerning the inter-relationship between CPR 17.4 (2) and section 32A of the 1980 Act. On the defendant's case probably all of the proposed new causes of action do not arise from the same or substantially the same facts within the meaning of either section 35(5) (a) of the 1980 Act or CPR 17.4(2). This reflects the view of Eady J at [62] in Komarek above. Further, when new claims do not arise from the same or substantially the same facts, the effect of section 35 (3) of the 1980 Act and CPR 17.4(2) is to preclude the addition of the new claims to the existing claims; Komarek at [65]. The defendant referred to the first point, relying on [62] of Komarek as 'limb one' and the second point at [65] of Komarek as 'limb two'.
16. The Master appears to have misdirected herself as to the effect of the Komarek decision. She understated the nature and difficulties of the legal issues which arise. There is a tension between the decision of Eady J in Komarek and the obiter views of Laws LJ in Otuo v. Brierley [2016] EMLR 6 and the obiter views of Kitchin LJ with whom Clarke LJ agreed in Otuo to the opposite effect. In Otuo one of the appellant's submissions was that, by reference to section 35 (3) it was clear that, except as provided by section 33 of the 1980 Act or by the rules of court, the court could not allow a new claim within section 35 (1) (b) to be made after the expiry of the time limit which would affect a new action to enforce that claim. The omission of reference to section 32A within section 35 was significant and its effect was that it was not permissible to consider it in exercising the discretion in the claimant's favour if he was outside the one year limitation at the time of the amendment. At [37] Kitchin LJ expressed the following (obiter).

" I accept that it is striking that there is no mention of s.32A in s.35(3) and that is particularly so in light of the inclusion in s.35(3) of s.33, a provision which performs a similar function to that of s.32A in actions in respect of personal injury or death. However, Mr Roseman has not shown us any authority which supports his submission and I entertain considerable doubt as to whether it is well founded, essentially for the reasons given by the deputy judge. In short, it seems to me to be strongly arguable that if, upon an application to amend to introduce a new cause of action in defamation after the expiry of the one year limitation period (but within the normal limitation period), the judge is able to conclude that, having regard to the provisions of s.32(A), it would be equitable to allow the action to proceed and is properly able to make a direction that s.4(A) shall not apply to the claim then, at the time of the amendment, the limitation period would not have expired. Moreover, as the deputy judge indicated, there is nothing in s.32(A) to indicate that its application can only be considered in the context of a new action and, for the reasons he gave, it would make little sense for this to be so. Indeed support for the deputy judge's conclusion can, I think, be derived from the decision of this court in Wood v Chief Constable of the West Midlands Police [2004] EWCA Civ 1638. It is not, however, necessary for me to express a final view on this issue in light of Mr Roseman's second contention, to which I now turn."

Whilst agreeing the appeal should be allowed Laws LJ expressly disagreed with Kitchin LJ's views on the operation of section 32A at paragraphs 44 to 46 as follows:

"44 I agree that this appeal should be allowed. I have some short observations on the issue discussed by my Lord Kitchin LJ at paragraphs 36 - 37 of his judgment.

45 I consider it extremely doubtful whether the court, by force of s.32A of the Limitation Act 1980, would be entitled to permit a new claim which is arguably out of time to be added by amendment. Such a course is on the face of it expressly excluded by the terms of s.35 (3). If (as has apparently been suggested) the legislature omitted from s.35 (3) an intended reference to s.32A by mistake, I find it very difficult to suppose that this court could properly correct the mistake.

46 However as Kitchin LJ observed at paragraph 37, it is unnecessary to decide the s.32A/s.35 issue: I agree that this appeal falls to be allowed for the reasons given by my Lord at paragraphs 39 - 40. I also agree with his observations at paragraph 41."

17. Since the decision of the Master, Warby J in Economou v. De Freitas [2016] EWHC 1218 (QB) considered the approach of the court to amendments to add new causes of action in defamation proceedings outside the limitation period. At [48] Warby J considered the case of Komarek and repeated the words of Eady J at [62] (limb one) as follows:

"In one sense, the facts ought to be relied upon in the proposed amendments are similar to those already pleaded; that is to say, the allegations about the claimants are similar. The essence of the claim in libel, however, is not the nature of the allegations but their publication. Each publication gives rise to a different cause of action. …"

Warby J at [49] stated that as Eady J had concluded :-

"….. since the new causes of action did not arise out of the same or substantially the same facts as were already an issue he had no power or discretion to admit the amendments. I have reached the same conclusion in this case. The meanings attributed to the draft Statement are very similar to those which are attributed to publications to which the claimant already complains, but that is not enough to satisfy section 35 (5) (b) or CPR 17.4 (2). The new claim "arises out of" communication of the draft statement to Ms Laville. There is no extant claim that arises out of that communication. The claimant's present case in respect of the first Guardian article is that it resulted from "an interview".

At [51] Warby J stated that the discretion available to him arising from section 35 (5) (b) is "defined" and "confined by the wording of the CPR". He concluded that he had no discretion. However, at [52] he stated:

"What I do have is power to disapply the primary limitation period pursuant to section 32A of the Limitation Act. If I were to do that, section 35 and CPR 17. 4 (2) would not apply, because the claim would no longer be one "made after the expiry of any time limit under this Act" or " where a period of limitation has expired" under the Limitation Act.

At [54] Warby J acknowledged that it is well established that the power under section 32A would only be exercised in exceptional circumstances.

18. The defendant's contention is that the decision in Komarek governed the application to amend and was considerably more than a contingent possibility as suggested by the Master. The Master failed to appreciate the importance of the decision in Komarek and having heard the submissions of counsel on this issue she should have held i) at least some of the causes of action were bound to fail the CPR 17.4(2) test and ii) thus the problem of the tension between the Komarek, Otuo (and now Economou) decisions was going to have to be faced. The Master did not appreciate the immediacy of the problem. If she did, she gave insufficient weight to it. Following the Komarek decision two different points arise specific to this case:

i. Do the proposed new amendments arise out of the same or substantially the same facts? Following the decisions of Eady J and Warby J at least two of the new claims would not surmount the CPR 17.4(2) hurdle.

ii. If the case does not get through the CPR 17.4 (2) gateway is that the end of the matter or can the claimant then seek the section 32A discretion?

Following Komarek that is the end of the matter. There are conflicting dicta in Otuo. Since the Master's decision, Warby J in Economou favours the court's consideration of section 32A. These issues are not dealt with in the Master's judgment, she does not differentiate between the first and second issues which arise. It is accepted that the Master referenced the authority of Komarek but she understated its relevance and immediacy, its importance in the context of this case and the inevitability of an appeal.

19. The defendant has made an Offer of Amends. If the amendments were to be allowed the defendant would lose the cost protection. How is the court to protect the defendant's offer? The Master did not address this further complicating issue of fact and law.
20. Delay has occurred. Had the claimant not made the subsequent application to the Master, the application to amend could have been heard by a judge in June or July 2016. The Master's decision has caused delay. Given the pressures of listing before the Masters it would be quicker and more cost effective to permit the case to be heard by a judge. In May 2016 the Master could not hear the case until October. A judge could have heard the case quicker. The reliance by the Master on the availability of counsel was wrong, counsel's convenience should not dictate the date of a future hearing.
21. Overriding all of these factors is the issue of proportionality. In the Tymula case Dingemans J noted that this litigation is hard fought. Reliance is placed upon the approach of the claimant to the decision of Dingemans J in that she refused to accept his refusal of permission, she has refused to accept the refusal of permission by Clarke LJ and is now taking the matter forward for an oral hearing in November. This litigation is hard fought. On an issue such as the one the Master was to grapple with, there are conflicting decisions or dicta as to the applicability of relevant provisions of the 1980 Act, the case was always going to go to an appeal. Had the Master released the case to a puisne judge, as she had first intended, it would have cut out one of the appellate levels and thus reduced costs. The Master's point as to the overriding objective is misplaced - release would have reduced delay and therefore cost. Her decision has had the opposite effect.

The claimant's case

22. It is not enough to assert that the Master's decision was wrong, even if this court considers that it would have exercised the discretion differently. Relying on the authority of Broughton above it should not interfere with the Master's decision unless it was plainly wrong. The Master was exercising a complete discretion. No single factor can mandate the Master to exercise her discretion in a particular way. The Master rightly considered that the application does not raise issues of unusual difficulty or importance. The application is a straight forward one, based on familiar principles applied by Masters on a regular basis. The Master rightly found that it is an application which will be determined largely on its own merits and facts. She is herself highly experienced in defamation law and capable of dealing with any questions of law which may arise.
23. The claimant takes issue with the defence submission that the matter is too complex for the Master to determine by suggesting that 1) the court ought to have regard to the matters under section 32A of the 1980 Act in addition to section 35 (5) (a) of the 1980 Act and CPR Part 17.4.(2) and 2) if the defendant's application under section 35 fails, whether the court has the power to allow the amendment under section 32A. It is the claimant's case that such complexity does not arise. The claimant's application is now formulated pursuant to CPR Part 17 in accordance with section 35 (5) (a) of the 1980 Act. The claimant is already seeking a remedy in respect of the defendant's alleged campaign of defamatory allegations against her. Thus the publications referred to at paragraphs 6 to 8 of the Amended Particulars of Claim arise out of the same facts or substantially the same facts as those which are said to be at the heart of this claim, namely the campaign by the defendant to ruin the claimant's reputation. The allegations are in the same terms and do no more than seek to set out as much of the extent of the campaign as is possible. Seven publications are already complained of. The proposed amendments add three further instances of the same behaviour by the defendant.
24. Insofar as the 1980 Act appears to draw a distinction between two scenario's namely a) bringing an entirely new claim (section 32A) b) adding causes of action to an existing claim (section 35), the policy justification for such distinction is that the underlying claim needs to be tried in any event.
25. The Court of Appeal has given guidance on the effect of section 35 and in particular determined that no further limitation should be imposed on the jurisdiction to admit further causes of action which arise out of substantially the same facts. Lloyds Bank PLC v Rogers (1) (Times March 24, 1997 per Simon Brown LJ:

"… Section 35 contemplates that the introduced cause of action will be time barred. The policy of the section is that, if factual issues are in any event going to be litigated between the parties, the parties should be able to rely upon any cause of action which substantially arises from those facts. There is no indication the drafting of the Act that there should be further limitation on section 35. If there is any prejudice to the party in the amendment it can and should be had regard to on the exercise of the Course discretion on whether or not to allow the amendment. …"

This approach was endorsed in the Court of Appeal in Goode v. Martin [2002] 1 WLR 1828. Brooke LJ at [34] in Chantrey Vellacott v. The Convergence Group Plc [2005] EWCA Civ 290 Jonathan Parker LJ at [104] and [107] stated:

" 104 we accept Mr Crane's submission that in order to answer this question it is necessary to make what is essentially a qualitative judgment ("a matter of impression" to use Millett LJ's expression in the Welsh Development Agency case: see paragraph 98 above)"…

107.During the new claim in that general context, it seems to us that although the proposed re-amendments inevitably alleged facts not already pleaded, nevertheless the allegations arise out of substantially the same facts as the existing claim."

26. The claimant acknowledges the conflicting dicta in the decisions of Komarek and Otuo v. Brierley above, notes that the approach adopted by Eady J in Komarek was not followed by the Court of Appeal in the case of Otuo above which endorsed the view of the Court of Appeal in Wood v. Chief Constable of the West Midlands Police [2005] EMLR 20 and the fact that the recent decision of Warby J in Economou at [52] appears to depart from the approach of Eady J in respect of 'limb two'. It is the claimant's case that there is no reason for the court to address these conflicts upon her application to amend as they do not arise upon the application as drafted.
27. During the course of this hearing Mr Browne QC, who did not appear before the Master, stated that if the claimant fails in her application pursuant to section 35 of the 1980 Act she would not seek the discretion of the court pursuant to section 32A. Mr Browne QC referred the court to a letter written by his solicitors dated 17 March 2016 responding to the defendants' dated 15 March 2016. The claimant's solicitors disputed the alleged legal complexity of the issue and stated that the application was 'governed by CPR Part 17 and section 35 (5) (a) of the Limitation Act'.
28. The claimant denies that she was responsible for any delay in the progress of this matter and seeks to attribute blame to the defendant for the same.
29. The claimant contends that the Master was correct to take account of the overriding objective to case manage proportionately and allocate the appropriate level of the judiciary for particular directions. The fact that an application can be heard sooner by a High Court Judge than a Master cannot and should not of itself determine the Master's discretion by her to release the application. The point was made that at the hearing before the Master junior counsel were instructed, contrast that with the instruction of Queen's Counsel for each party at this hearing.

The defendant's reply.

30. As to Mr Browne's statement to the court that the claimant would not seek to rely upon section 32A of the 1980 Act if she failed in her application pursuant to section 35, Mr Rushbrooke QC did not accept that this would provide a straightforward route for the court in considering the application. He said that the court had to grapple with CPR 17.4.2 which inevitably involved 'limb one' of the decision of Eady J in Komarek - namely could these publications arise out of the same facts? If the claimant failed upon that first application the court would then have to consider the second point - namely was there any jurisdiction to allow the claims, which would involve consideration of the conflicting decisions and dicta previously identified?

Conclusion

31. I have read the transcript of the hearing before Master McCloud. It reads as a hearing conducted under constraints of time. Shortly before the extemporary judgment was given Ms Skinner on behalf of the defendant stated:-

"…. it has taken over an hour, with us both cantering through at some speed, I have to say. I am sure if we had more time both of us would have wanted to say a bit more about what we say are the background circumstances to this claim and the likely effects the amendments are going to have on the conduct of it going forward."

32. In my view the claimant's application to amend the Particulars of Claim will involve, as a minimum, consideration of two issues:

1) Of the first three amendments, do they arise out of the same or substantially the same facts within the meaning of section 35 of the 1980 Act and CPR 17.4?

2) If the proposed amendments fail on the first question, is there a discretion available to the court within Section 35 or 32 of the 1980 Act?

In answering these questions the court will have to address the conflicting judicial dicta, opinions and decisions contained within the authorities of Komarek, Economou and Otuo.

33. In her judgment the Master does not separate the two issues, nor does she grapple with the implications of the conflicting judicial opinions or decisions. The Master expresses the opinion that this is a case on its facts. I do not believe it is as straightforward as that. I have sympathy with the Master who had to deal with a hard fought application within the space of what should have been one hour. I do not think she was wholly assisted in her task by the presentation of the claimant's case which could be said to be overly simplistic. Had more time been available then arguments could have been developed. Constraints of time may be the reason, but I do not think that the judgment, which is silent as to the two limbs of Komarek and the differing views as to whether discretion is available, fully addresses the legal difficulties of the application to amend. The fact that the judgment fails to grapple with these issues does not of itself mean it is not appropriate for a Master to hear such an application. In my view what it does reflect is the fact that as a matter of law the application to amend is not straightforward and, and given the conflicting decisions and dicta, raises issues of some importance.
34. Another matter which I do not believe was fully canvassed before the Master because of time constraints was the issue of the loss of costs protection to the defendant should the amendment be allowed. This is an issue which is not straightforward and does not appear in the judgement.
35. In his judgment in Lokhova v. Tymula above Dingemans J at [5] stated that "the applications have been particularly hard fought". This is my second hearing in these proceedings. The applications which were determined by Dingemans J were first listed before me on 26 November 2015. The applications were adjourned and I gave directions. My memory of that hearing is that they were hard fought. Having now listened to the parties at what was listed as a two hour hearing, which lasted three and a half hours, my view as to the hard fought conduct of this litigation by both parties is confirmed. I note the refusal of the claimant to accept the decision of Dingemans J and Clarke LJ refusing permission to appeal, now seeking an oral hearing of permission to appeal to be heard in November. Ms Skinner made the point to the Master that decisions are likely to be appealed, I agree. Given the litigious nature of these proceedings there is in my view sense and force in a puisne judge hearing these applications in that it will reduce, by one, a level of appellate judicial scrutiny.
36. It is of note that in the context of a time estimate of a day, which the Master believed the original application had been listed for, she commented when she made her original direction that it should go before a judge:

"I took one look at the estimates of the day, or whatever it was, and thought, "they will get on quicker" (in front of a judge)."

The view expressed by the Master was supported by the defendant and not challenged by the claimant. The point being made was as to the pressure upon the lists of Masters which was reflected in the words of Master McCloud when she accepted the difficulty of obtaining lengthier hearings in front of Masters as follows:

"I think it is increasingly becoming more unusual because our lists are too full. Yes, it is more about resources than principle, I think actually."

The history of this application indicates that a one day hearing can be achieved more swiftly before a puisne judge than a Master. This is an old case, delay has occurred. There is a real imperative in moving this case forward to a trial.

37. As to cost, the point was made on behalf of the claimant that before the Master junior counsel appeared on behalf of the parties whereas in front of a puisne judge Queen's Counsel were instructed. Given the hard fought nature of this litigation I have no confidence that even if this were to remain with the Master either or both parties would be content to instruct junior counsel, however able and eloquent.
38. I accept that the court will not easily interfere with the case management decision and the discretion of a Master. In considering the defendant's appeal I take account of the factors set out in 6.3.12 of the Queen's Bench Guide which are not exhaustive.
39. For the reasons given I am of the view that the legal issues raised upon the application to amend are of importance. They are not straightforward. The Master's decision did not fully grapple with the likely complexities. The issues fall within point 2 of 6.3.12 of the Guide. To those matters should be added in the defendant's issue of costs protection and the proposed new claim for aggravated damages which will only add to the complexity of the claim.
40. The outcome of the application is likely to affect the trial date or window (point 3 of 6.3.12) as it could lead to further delay. The overriding principle relating to costs and the appropriate level of judiciary will be better met by a hearing of the application in front of a puisne judge. It will be speedier and will cut out one level of appeal thus reducing costs. Put shortly, it will be a more proportionate manner of hearing this application.
41. I am satisfied that relevant factors within 6.3.12 of the Queen's Bench Guide are met, together with consideration of the overriding objective. It follows that I find that the application should more properly be heard by a puisne judge and thus allow the defendant's appeal.