Background
This litigation forms part of one of the largest sets of group proceedings ever brought in England and Wales, arising from allegations that Ford Motor Company and related defendants sold diesel vehicles whose NOx emissions in normal use materially exceeded those recorded during regulatory testing. A Group Litigation Order was made in November 2023, and the proceedings have been managed in tranches: Tranche 2, a lengthy liability trial concerning prohibited defeat devices (PDDs), concluded in March 2026, with judgment pending.
In April 2026, the claimants applied to amend their pleadings to introduce an entirely new category of allegation — the “SOx Defect.” They contended that certain Ford vehicles contained Lean NOx Traps (LNTs) that, over time, adsorbed oxides of sulphur (SOx) to the point that they could no longer adequately limit NOx emissions, and that the vehicles’ on-board diagnostics failed to flag this malfunction. The claimants further alleged that Ford was aware of the defect by mid-June 2016, developed software updates (the “SOx Updates”) in response, but concealed both the defect and the updates from regulators and purchasers. The proposed amendments pleaded breach of statutory duty, breach of contract, breach of the Consumer Protection from Unfair Trading Regulations 2008, deceit, and unfair relationship under the Consumer Credit Act 1974.
Ford resisted the amendments principally on limitation grounds. The primary six-year limitation period under the Limitation Act 1980 had expired for the vast majority of claimants. The central procedural question was whether the court could — and should — permit the amendments on so-called “Mastercard” terms: allowing the new claims to date only from the application to amend (10 April 2026), rather than being deemed to have been commenced on the date of the original action under section 35(1)(b) of the Limitation Act 1980.
The Court’s Holding
Mr Justice Bright held, applying the four-stage test from Ballinger v Mercer [2014] EWCA Civ 996 and Mulalley v Martlet Homes [2022] EWCA Civ 32, that the new SOx allegations did not arise out of the same or substantially the same facts as the existing PDD claims. The SOx Defect — the progressive saturation of LNTs with sulphur over time — was wholly distinct from the prohibited defeat device allegations at the heart of Tranches 2 and 3, and had never previously been put in issue. Accordingly, CPR 17.4(2) could not be satisfied, and straightforward amendment after the limitation period was impermissible for the majority of claimants. The court accepted, however, that approximately 8,630 claimants had causes of action accruing after 16 June 2020 and were therefore not time-barred at all.
On the Mastercard point, the court agreed with Fancourt J in Duke of Sussex v News Group Newspapers Ltd [2024] EWHC 1208 (Ch) and with Mr Ter Haar QC in Advanced Control Systems v Efacec [2021] EWHC 914 (TCC) that the court has power to permit amendments on Mastercard terms — ordering that the new claims do not relate back to the date of the original action but only to the date of the amendment application — even without the consent of all parties. The court reasoned that section 35(3) of the Limitation Act 1980 only prohibits new claims that fall within section 35(1)(b), i.e., claims deemed to have been commenced on the same date as the original action; a Mastercard order removes the claim from that category, and thus does not offend the statute’s purpose of preserving defendants’ limitation defences.
Exercising its discretion, the court granted permission to amend on Mastercard terms. It found no real prejudice to Ford: the claimants’ deliberate-concealment case under section 32 of the Limitation Act 1980 meant the SOx claims would be pursued regardless, whether in these or fresh proceedings. The presence of approximately 8,630 claimants with unarguably timely claims made it impractical and unjust to refuse amendment. The court also considered the efficiency of folding the new allegations into existing proceedings at a natural transition point between tranches, and noted that Ford’s primary interest in demanding separate proceedings was the prospect that procedural attrition would deter individual claimants from pursuing potentially valid claims — a factor running squarely counter to the overriding objective.
Key Takeaways
- A new cause of action arising from a qualitatively different defect (SOx saturation of LNTs) does not arise out of the “same or substantially the same facts” as existing prohibited-defeat-device claims, even in overlapping litigation about NOx emissions from the same vehicles.
- The court confirmed, at first instance, that a “Mastercard order” — permitting amendment of new claims to take effect from the date of the application rather than the original claim — can be made without the consent of all parties, provided doing so preserves (rather than circumvents) defendants’ limitation defences and is just and convenient in the circumstances.
- Relevant factors favouring the Mastercard approach include: a significant subset of non-time-barred claimants; advanced stage of existing proceedings; efficiency gains from managing new allegations within an established GLO; and the absence of any prejudice to the defendant beyond that which would exist if fresh proceedings were issued.
- Where a defendant’s real interest in resisting amendment is to discourage claimants from pursuing claims through procedural burden rather than on the merits, courts will be alert to the tension with the overriding objective.
Why It Matters
This decision is a significant development in the law governing late amendments in complex group litigation. By confirming — and providing a principled statutory basis for — the court’s power to make Mastercard orders without party consent, Mr Justice Bright resolves a tension left open after DR Jones Yeovil and Duke of Sussex, and gives claimant firms a practical tool to introduce newly discovered defect allegations into live group proceedings without being forced into expensive, parallel litigation. The reasoning — that a Mastercard order takes the new claim outside section 35(1)(b) altogether, rather than carving an exception to section 35(3) — offers a cleaner doctrinal foundation than prior judgments.
For defendants in mass tort and product liability litigation, the decision underscores that limitation arguments alone will rarely defeat a well-timed amendment application where there is any significant cohort of non-time-barred claimants or a credible deliberate-concealment case. It also signals that courts managing large GLOs will prioritise the efficiency and expertise advantages of consolidated management over procedural orthodoxy when new strands of liability emerge from ongoing disclosure.