AMENDING PLEADINGS LATE AND MITCHELL: NOT A SMOOTH JOURNEY

What relevance do the Mitchell principles have in relation to applications to amend pleadings. Particularly when those applications are made late?  This was considered by  Mrs Justice Andrews in Dany Lions Ltd -v- Bristol Cars Ltd [2014] EWHC (QB) 928.

THE APPLICATION

An application to amend the pleadings was made to amend several days before trial and was considered on the first day of the trial. The amendment, the defendant argued, showed that it had a strong case and that the claimant’s action was an abuse of process. The claimant objected to the amendment.

CONSIDERATION OF PRINCIPLES RELATING TO LATE AMENDMENT
“4 There is no real dispute between counsel as to the legal principles that apply
when one party seeks to make a late amendment. It is accepted that it is no
longer good enough for such a party to argue that no prejudice has been
suffered by his opponent save as to costs. One of the leading cases on late
amendments is the decision of Swain-Mason and others v Mills & Reeve
[2011] EWCA Civ 14, [2011] 1 WLR 2735, a decision of the Court of Appeal.
There are a number of guiding principles set out in Swain-Mason which are of
assistance to the court in the present case.

5 First of all, the Court of Appeal endorsed the approach of Moore-Bick J., as he

then was, upheld on appeal, in a pre-CPR Commercial Court case called

Worldwide Corporation Ltd v GPT Ltd, of refusing late amendments which
had been prompted not by discovery of some unsuspected evidence or fact but
by a reappraisal by newly-instructed counsel of the merits of the case.
Secondly, the Court of Appeal endorsed what it had said in Worldwide
Corporation Ltd v GPT Ltd about the fact that the payment of the costs of an
adjournment may not be adequate compensation for somebody who is keen
(and I paraphrase) to have finality in the litigation which has been hanging
over his head for some time, and which will not really compensate him totally
for being, as the court then put it, “mucked around at the last moment”.

6 Thirdly, the Court of Appeal said that the onus will be a heavy one on the
amending party to show the strength of the new case and why justice both to
him, his opponent and other court users requires him to be able to pursue it. It
is clear that the approach of the courts towards late amendments has been far
less lenient than it was in the past, and that the obligation is upon the party
seeking to make that amendment to satisfy the court that it is truly in the
interests of justice that he should be allowed to raise the late case. In that
context, the court in the case of Swain-Mason made it clear that it is a matter
of obligation on the party amending to put forward an amended text which
itself satisfies to the full the requirements of proper pleading. It should not be
acceptable for the party to say that deficiencies in the pleading can be made
good from the evidence to be adduced in due course or by way of further
information if requested, or as volunteered without any request. The opponent
must know from the moment at which the amendment is made what the
amended case is that he has to meet.

7 One also has to look at questions of late amendment in the light of the
approach by the Court of Appeal in the more recent case of Mitchell v News
Group [2013] EWCA Civ 1537 to defaults in compliance with the Rules.
Again, I paraphrase: nowadays, a much stricter view is taken of non-
compliance. It was said in that case that if departures are to be tolerated, then
the relaxed approach to civil litigation which the Jackson reforms were
intended to change will continue. ”

MITCHELL IS TAKEN INTO ACCOUNT IN RELATION TO LATE AMENDMENT

It is clear that a “much stricter” view is taken in relation to late applications to amend. The “Mitchell” principles have some relevance.

TAKING THESE FACTORS INTO ACCOUNT PERMISSION TO APPEAL WAS REFUSED

The final judgment in the case is available on Bailli. The judgment relating to permission to amend is available on Lawtel.