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A Stitch in Time Saves Nine

Amendment

In the well-known case of Cobbold v London Borough of Greenwich (LTL 24/5/2001) Gibson LJ said:

'The overriding objective (of the CPR) is that the court should deal with cases justly. That includes, so far as is practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party or parties caused by the amendment can be compensated in costs, and the public interest in the efficient administration of justice is not significantly harmed…’.

Since Cobbold was decided, the Overriding Objective (CPR 1.1) has been amended such that cases not only have to be dealt with justly but also at proportionate cost. Dealing with cases in that way includes so far as is practicable the additional requirements of enforcing compliance with rules, practice directions and orders (new CPR 1.1(f)).

Late amendment

There have been a number of recent cases on ‘late’ amendments (where an amendment is sought close to a trial date) including Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 in which Mrs Justice Carr drew the authorities on ‘late’ amendments together and stated the relevant principles:

a) whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted;

b) where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission;

c) a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept;

d) lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done;

e) gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;

f) it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay;

g) a much stricter view is taken nowadays of non-compliance with the CPR and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so.

In Henderson v Dorset Healthcare University Foundation NHS Trust [2016] EWHC 3032 (QB) Mr Justice Warby approached an application for ‘late’ amendment in six steps (issues), the last step was the issue of discretion in which he said:

‘60 … The court no longer approaches the exercise of this discretion on the basis that the court's task is merely to adjudicate between the rival parties, without regard to other considerations. The overriding objective requires a host of additional considerations to be brought into play. Moreover, when considering fairness between the parties the court takes a more searching look than it once did at the prejudice that a party will suffer, and whether that can truly be compensated in costs.’

Recent decisions: Slips

In two recent cases in the County Court the failure to address a slip in good time resulted in Judges refusing to exercise their discretion under CPR 17.4 (amendment of statements of case) and CPR 40.12(1) (‘the slip rule’, amendment of a judgment or order). Both cases were appealed and in both instances the appeals were dismissed.

Erdogan & ORS v Firstgroup PLC [2017]

In a low value personal injury claim arising out of a RTA the Claimant sought damages from the Defendant and pleaded:

‘1… The Defendant’s employee was the driver of an out of service London red double decker bus number 67 registration number LK03 NNJ belonging to or operated by the Defendant.’

Two weeks after the Defence was drafted the Claimant emailed the Defendant stating ‘We note there that there is a typographical error in the particulars of claim and the vehicle registration number should read LK03 NJN. We will make the necessary application to amend the same…’.

Three months later the Defendant made a summary judgment application. Eleven days before the hearing of the summary judgment application the Claimant made an application to amend the Particulars of Claim. The sole amendment being the inversion of the last two letters of the Defendant’s vehicle number plate from LK03 NNJ to LK03NJN.

District Judge Lethem refused to exercise his discretion to amend the particulars of claim and was critical of the Claimants solicitor’s delay in making such an application more than three months after the Defendants application for summary judgment was made. He went on to enter summary judgment against the Claimants. Permission to appeal was granted on the papers by Her Honour Judge Thorp, however, the appeal was subsequently dismissed by Her Honour Judge Baucher who held that the District Judge had not acted outside the generous ambit of discretion. Permission for a second appeal to the Court of Appeal was refused.

Kagantekin v Nyagomo [2016]

In a low value RTA claim concerning credit hire charges the Claimant and Defendant proposed the fast track in their direction questionnaires. District Judge Backhouse considered the papers in box work and allocated the claim to the fast track and gave directions. Unfortunately, unbeknown to the parties at the time, the court officer who drew up the Order of the District Judge made a mistake in pressing the wrong button and caused a Notice of Allocation to be sent to the parties which stated case allocated to small claims track and provided typical small claims directions.

Prior to the trial neither party raised any issue with the court or each other about the allocation to the small claims track. Upon arriving at Woolwich County Court for the trial Counsel for the respective parties noted that the case was listed for a fast track trial. District Judge Beattie called ‘Counsel only’ into Court to inform them that District Judge Backhouse had allocated the case to the fast track in box work but that the court Order had been sent out to the parties with an erroneous allocation. Counsel them withdrew and a settlement was reached whereby damages were agreed in the sum of £1,995.60 and the only issue remaining was costs.

The value of the settlement represented a significant reduction from the Claimant’s claim at that stage (ca. £22,000). A key factor for the Claimant in its consideration of settlement was that the Claimant had a pending application regarding late service of its witness evidence at a time when Mitchell was good law and Denton was yet to be heard in the Court of Appeal.

District Judge Beattie adjourned the costs issue to be heard before a District Judge at Woolwich County Court. Given that was a small Court, it is perhaps unsurprising that the Judge hearing the adjourned cost dispute was District Judge Backhouse (who had allocated the case to the fast track in box work).

District Judge Backhouse refused to exercise her discretion to amend the track allocation to the fast track under the slip rule and held that in exercising the discretion the court should consider the overriding objective and look at the surrounding circumstances that included the Claimant having accepted £2K against a claim of £22K and the Claimant’s solicitors conduct of the proceedings in not having made an application to amend the track allocation at an early stage.

Mr Alan Steynor, sitting as a Recorder, granted permission to appeal but dismissed the appeal deciding that the District Judge was entitled in the circumstances to decide not to exercise her discretion and apply the slip rule.

Consequences

Considering the above cases, and the new Overriding objective, it is clear that Cobbold does not represent the current law for ‘late’ amendments and that Judges, when exercising their discretion, are giving considerable weight to the parties conduct of the proceedings when balancing the various factors in the scale, even when the application is not made at a late stage of the proceedings. When slips are identified solicitors need to be particular mindful of the well-known phrase A Stitch in Time Saves Nine.