PI Brief Update

Testing the Limit-ation: High Court Extends Power to Permit Amendments under Mastercard Inc v Deutsche Bahn AG - Georgina Pressdee, Temple Garden Chambers

27/07/26. On 19 June 2026 Mr Justice Bright handed down his judgment in Davies v Ford Motor Co [2026] EWHC 1531 (KB), which determined the Claimants’ application to amend their case in order to add new claims. In a significant ruling, Mr Justice Bright granted the Claimants permission despite the Defendant’s contention that the claims would be time-barred.

Background

The matter arose out of group litigation against Ford and other manufacturers for the levels of oxides of nitrogen emitted by their vehicles. The main complaint was that their vehicles incorporated design elements which had the effect that the levels in normal vehicle operation and use were materially higher than in regulatory testing.

The issues were to be tried in three tranches. The second tranche had been completed with judgment awaited. However, it was always understood that there were other claims and issues which may need to be tried later.

The proposed amendments related to excessive emissions arising from a different cause (the “SOx Defect”), and the installation of updates which resulted in non-compliance with the vehicle’s Type Approval and Certificates of Conformity. Ford objected on the basis that these claims were time-barred by the 6-year limitation period. The Claimants’ response was twofold: (1) a minority of the claims (an estimated 8,630) arose less than six years ago; and (2) the Claimants can rely on Section 32 of the Limitation Act 1980 because some facts were deliberately concealed by Ford.

Ruling

Subject to the approximate 8,630 Claimants, Mr Justice Bright considered that the amendments could not be permitted under CPR 17.3 and 17.4 on the basis that the Claimants failed to satisfy the third limb of the 4-stage test in Ballinger v Mercer Limited [2014] EWCA Civ 996: the new cause of action did not arise out of the same or substantially the same facts as are already in issue in the existing claim. The amendments largely (if not entirely) arose out of the alleged SOx Defect. The fact that some vehicles were affected by this defect was not previously in issue.

The Claimant’s fall-back position was that permission to amend could and should be granted on terms that the new Claims were brought on the date of their application (10 April 2026) per Mastercard Inc v Deutsche Bahn AG [2017] EWCA Civ 272. Ford submitted that this power only applies where the parties agree. This was rejected on the basis that the parties’ agreement could not validate a manner of proceeding that is prohibited by statute. However, it would bear on the exercise of the Court’s discretion. Similarly, Mr Justice Bright ruled that, where it is reasonably arguable that all the new causes of action are entirely time-barred, this will be relevant to the exercise of discretion but will not preclude resort to the power altogether.

Mr Justice Bright then returned to the language of Section 35(3) of the Limitation Act 1980 (which prohibits new claims by amendment after expiry of the limitation period) and pointed out that it applies to new claims which (per Subsection (1)(b)) will be deemed to have been commenced on the same date as the original action. Amendments made pursuant to Mastercard Inc v Deutsche Bahn AG do not fall within this provision because the new claim will not be deemed to have been commenced on the same date.

Having ruled that the Court could (in principle) permit the amendments, Mr Justice Bright went on to consider whether it should do so as a matter of discretion. The Defendants argued that the amendments should not be permitted because they would require fresh investigations. This was rejected on the basis that further investigation would be inevitable whether the Claims were brought as amendments or as new proceedings. Three further factors weighed in favour of allowing the amendments:

1. It was obvious that Ford was arguing for additional procedural delay, complexity and expense in order to deter some Claimants. That ran counter to the overriding objective.

2. A significant number of Claims were not time-barred.

3. This point in the proceedings was a good juncture for the addition of new allegations.

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