AMENDING PLEADINGS: WELL I'M JUST GOING TO ISSUE SEPARATE PROCEEDINGS – IS THAT RELEVANT?
The earlier post looked at the general principles in relation to late amendment of pleadings. There was one further point considered in CIP Properties -v- Galliford Try  EWHC 135 (TCC). The claimant argued that the amendments should be allowed because otherwise it would just issue separate proceedings. This argument was to no avail.
Mr Justice Coulson considered what the claimant contended was its “overarching point
- The fact that a party asserts that it will simply issue new actions if it is not given permission to amend is not a definitive factor when a court considers permission to amend.
- A party cannot “hold a gun” to their opponent’s head by threatening separate proceedings if permission to amend is not granted.
- A second action brought in these circumstances may be an abuse of process in any event.
- In his submissions in reply, Mr White QC said that, in effect, the outcome of all of these issues was immaterial because the decisive factor in the claimant’s favour was that it could commence fresh proceedings in respect of the smoke ventilation claim in any event. He argued that, since fresh proceedings were not in the interests of any of the parties to the case, the claimant ought to be allowed simply to make the amendments and raise the new claim in the existing proceedings. For the reasons noted below, I do not accept that submission.
- First, as in Bourke, the defendant and the third, fifth and sixth parties are aware of the risk of fresh proceedings, but continue to maintain their opposition to this amendment. That is because of what they would regard as the procedural catastrophe of an adjournment that would ensue if these amendments were allowed into these proceedings at this late stage. Accordingly, the claimant cannot simply put a gun to the head of the defendant and the additional parties (and indeed the court) and say that, regardless of all the relevant principles, the amendments should be allowed because otherwise there would be fresh proceedings. The defendant and the affected additional parties have chosen to object to the amendments in reliance on the authorities, and I have upheld those objections on that basis. To that extent, therefore, I consider that the risk of fresh proceedings is nothing to the point.
- However, just as in Bourke, there was some argument as to whether any fresh proceedings would be an abuse of process of the court, because of the rule in Henderson v Henderson  3 Hare 100. Mr Constable QC argued that, on the authorities, I should find that it was probable that the court would not permit the claimant to pursue separate proceedings in respect of the smoke ventilation amendments. By reference to Henderson v Henderson, he argued that the court would not permit “the same parties to open the same subject of litigation in respect of the matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case”. This rule has been restated in the modern context in Johnson v Gore Wood and Co (a firm)  2 AC 1; Aldi Stores v WSP Group PLC  EWCA Civ 1260 and Seele Austria GmbH Co v Tokyo Marine Europe Insurance Limited  EWHC 255 (TCC).
- To the extent that it is relevant to my consideration of the application to amend, I conclude that there is a strong prima facie case that it would not be open to the claimant to commence fresh proceedings in respect of the smoke ventilation claim. That is because, not only was that a claim which could have been brought forward in these proceedings, but it was also a claim which, on my findings, the claimant deliberately choose not to bring forward from the pre-action protocol phase, notwithstanding the fact that other aspects of the car park ventilation system, in respect of carbon monoxide, were maintained. If the claimant had wanted to pursue the smoke ventilation claim, it could and should have done so.
- Again, in respect of the Henderson v Henderson point, it is unnecessary for me to decide whether or not the smoke ventilation claim had been discontinued in 2013. It is sufficient for present purposes to conclude that there is a strong prima facie case that, if that is what the claimant wanted, this claim could and should have been pursued at the outset of proceedings in 2013.
- Accordingly, for these reasons, I do not consider that the fact that the claimant may choose to issue fresh proceedings is any sort of answer to the opposition from the defendant and the additional parties to the proposed amendment. What is more, in relation to that claim, I consider that there is a strong prima facie case that the new proceedings may be caught by the rule in Henderson v Henderson and therefore not open to the claimant in any event.”
The judge made similar findings in relation to proposed amendments in other matters.
On this action
- Taking a dim view of the costs budget.
- Costs budgets in high value cases
- Amending pleadings: what is meant by “late”?