JUDGE ALLOWS CLAIMANT TO RELY ON MATTERS THAT TOOK PLACE AFTER TRIAL: VERY, VERY LATE AMENDMENT ALLOWED

There are several interesting procedural issues that arise in the judgment of HHJ Halliwell (sitting as a High Court Judge) in Currie v Thornley & Anor [2019] EWHC.  172 (Ch). One of which is the judge’s decision to allow the claimant to rely, and plead matters, relating to letters of demand that were served after the trial took place.

THE CASE

The claimant liquidator sought sums due from the defendants under a deed of indemnity.  One of the defendants’ arguments was that letters of demand made under the indemnity were invalid. After the trial, but before judgment,  the claimant served new letters of demand.   The question arose whether the claimant should be allowed to rely on those letters of demand.

THE JUDGMENT ON THIS ISSUE
  1. As part of the Respondents’ case at trial, Mr Schaw Miller submitted that the demands in the July 2017 and May 2018 Letters did not satisfy the formalities in the 2012 Deed. Following trial, the Applicant made further demands under the APNs by letters dated 7th December 2018 (“the 7thDecember 2018 Letter”) and (“the 13th December 2018 Letter”), first in the sum of £1,374,774.79 and then in the revised sum of £1,365,335.24. It follows that the Applicant has now made four sets of demands under the 2012 Deed, two of which were made after trial but before judgment.
  2. By his written submissions dated 14th December 2018, Mr Schaw Miller submitted that the Applicant should not be permitted to rely on the 7th and 13th December 2018 Letters since to do so would enable the Applicant to rely, after the closure of his case, on a cause of action not properly pleaded and for which there was no supportive evidence. Mr Schaw Miller accepts that, since the CPR came into force, it has been open to a party to rely on causes of action which accrue after commencement of proceedings and there is no procedural bar on amendment for that purpose, Maridive & Oil Services (SAE) v CNA Insurance Company (Europe) Limited [2002] EWCA Civ 369. His submissions were essentially based on the laws of evidence and procedural fairness.
  3. On these issues, Mr Schaw Miller’s objections were not without foundation. However, I have decided to admit the December 2018 Letters, as evidence.
  4. 1. Firstly, so far as possible, it is important for all the relevant issues to be disposed of now in the interests of finality so as to avoid the un-necessary uncertainty, time and expense that will be incurred if it becomes necessary to re-litigate unresolved aspects of the case in the future. I have taken into consideration Mr Moss’s death and the complications the claim will have in connection with the administration of Mr Moss’s estate. These lend a measure of support to Mr Schaw Miller’s objections. However, if the underlying claim is left unresolved, the uncertainty will remain.
  5. 2. Secondly, the December 2018 Letters raise discrete issues which arise separately from the evidential issues in relation to the rest of the case and there is no good reason to preclude me from admitting them in evidence if satisfied, as I am, that it is fair to do so. The Applicant has made a witness statement dated 19th December 2018 confirming that he sent the December 2018 Letters to the Respondents by pre-paid first class post at the addresses specified in the 2012 Deed. The Respondents, through counsel, have been given the opportunity to cross examine the Applicant in relation to the issue but have declined to do so. I have decided to admit, in evidence, the relevant witness statement on the basis that it will not be causative of material prejudice to the Respondents which cannot be compensated for in costs.
  6. 3. Thirdly, I am satisfied it is appropriate to permit the Applicant to amend the Points of Claim to enable him to rely on the December 2018 Letters as notices demanding payment under Clause 4.1 of the 2012 Deed.