Issue 39 October 2021 - Journal - Page 138
If that is right, then it significantly opens up the likely
number of occasions when a “Mastercard” approach
might be suitable.
from, possibly, Advanced Control Systems, and that
this requirement should police the use of the
However, over the summer, HH Judge Russen QC,
sitting as a Judge of the High Court, handed down
the decision in DR Jones Yeovil Ltd v Drayton Beaumont
Services Ltd, which further considered the scope of the
“Mastercard” approach. While he agreed that this approach was not dependent upon the consent of the
defendant, in his view Advanced Control Systems was
wrong to say that there was no limit to the type of cases
where this approach might be appropriate.
For what it is worth, I welcome the wider use of the
“Mastercard” approach. It seems to me that there will
be situations where allowing an amendment, but
putting off arguments as to limitation until a later date,
will be more sensible and far more cost-effective than
requiring a claimant to issue fresh proceedings, or arguing over CPR 17.4, which might turn on facts or expert issues. No doubt there are also situations where
such an approach will make a claim needlessly cumbersome and the case would benefit from the matter
being resolved then and there; but the difference between those situations seems to me to be best resolved
by case management discretion rather than the rule
proffered in DR Jones.
In his view, the option was only permissible (subject to
discretion on the facts) where the defendant accepts,
or the court decides, that there cannot be a reasonably
arguable limitation defence to the entirety of the proposed amendment. Where there is a reasonably arguable limitation defence to the entirety of the new
cause of action introduced by the amendment which
cannot be overcome by CPR 17.4, a party would be
forced to adopt the conventional approach and issue
a fresh claim.
Either way, I think the White Book could helpfully expand its commentary at 17.4.2 to highlight these possibilities, and court users would benefit from
clarification from the courts as to how best to proceed.
The rationale for this potentially significant fetter on
the application of the “Mastercard” approach appears
to be that it is premised on the recognition that the
claimant had the alternative of issuing fresh proceedings without facing an obvious limitation claim in relation to the whole of the claim. In other words, that
the claimant could not have been prevented from
bringing a new claim for at least some of the matters
within the amendment. The judge took the view that
this was the case in all the previous decisions, apart
This article was written by David Pliener. First
published on Practical Law’s Construction Blog.
Dr Eugene McNally
MB (Hons) FRCR FRCPI
Consultant Musculoskeletal Radiologist
President of the European Society,
Past President of the British Society and
Inaugural RCR BSSR Professor of Musculoskeletal Radiology
MR SAMEER SINGH
CONSULTANT ORTHOPAEDIC SURGEON
MBBS, BSc, FRCS (Trauma and Orthopaedics)
All aspects of Trauma (soft tissue and bone injuries), Upper Limb Disorders,
Whiplash Injuries. Medical Reporting - Personal injury, Medical Negligence,
Work related disorders and Repetitive Strain Expert.
Mr Singh is a Consultant Orthopaedic Surgeon and deals with all aspects of trauma
Upper and Lower Limb Injuries. He is able to provide an efficient turnaround
for medical reports within 10 days.
Mr Singh is an expert in personal injury and medical negligence and performs over 200
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undertaken training for medical negligence and court room experience.
Mr Singh clinical practice involves all aspects of upper and lower limb trauma.
There is a specialist interest in upper limb disorders.
Expert in X rays, MRI, CT and ultrasound scans, and image guided treatment
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experience gained from over 30 years working at the highest level.
Mr Singh undertakes regular CPD to ensure his clinical and legal
practice is up to date.
Prepared numerous medicolegal reports for both negligence and personal
injury. Expertise includes second opinion reporting, medicolegal report
preparation, conferencing and expert witness court attendance.
Clinic locations in London, Milton Keynes and Bedford:
10 Harley Street, Marylebone, London, W1G 9QY
Contact information/ Address for documents:
The Manor Hospital
Church End, Biddenham, Bedford, MK40 4AW
Bridge House, Bedford Hospital NHS Trust, South Wing, Bedford, MK42 9DJ
Angie Cox, Manor Hospital Beech Road, Oxford OX3 7RP
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Chadwick Drive, Saxon Street, Milton Keynes, Buckinghamshire, MK6 5LR
Tel: 01908 305127 Mobile: 07968 013 803
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