CAN AN APPLICATION BE AMENDED? AN INTERESTING POINT TO START THE YEAR

There are some procedural issues where you would assume that there was clear pre-existing authority in existence.  However, on examination (usually just before the hearing) it transpires that the point is a “novel” one.   In Agents Mutual Limited-v- Moginnie James Ltd [2016] EWHC 3384 (Ch) Master Matthews considered one such point.  Can a party amend an application once they have made it?

KEY POINTS

  • The court does have power to allow a party to amend an application.
  • On the facts of this case it was not appropriate to permit such an amendment.

THE CASE

The claimant applied for summary judgment.  The defendant applied for a ruling on the scope of the application. Once the Master had given the ruling the claimant applied to amend the application to add further grounds.

THE DEFENDANT’S ARGUMENTS

The defendant argued that applications to the Court could not be amended. Any application to amend was, in fact, a free standing application.

Normally this would not matter. However there was a time limit in existence in relation to applications in the current case and if the amendments were, in fact “new” applications they were out of time.

THE MASTER’S DECISION: AMENDMENTS CAN BE MADE

The Master decided that the rules allowed applications to be amended.

  1. No authority was cited to me on the question whether an application notice under the CPR may be amended once issued, and I am not aware of any. Mr Grant QC says that CPR Parts 23 and 24, dealing with ordinary applications and summary judgment respectively, do not provide for amendment, and that Part 17, dealing with the amendment of statements of case does not apply and that therefore there is no power to amend such a notice.
  2. I agree with him about Parts 17, 23 and 24. In particular, an application notice is not a statement of case for the purposes of Part 17: CPR rule 2.3(1), and see also Towergate Underwriting Group Ltd v Albaco Insurance Brokers Ltd [2015] EWHC 2874 (Ch), [17]. But I do not agree that it follows that there must be no power for the court to permit and amendment of an application notice.
  3. I do not need to consider the question of whether and how far the inherent jurisdiction of the court extends to such a case. CPR Rule 3.1(2)(m) provides that:
“Except where these Rules provide otherwise, the court may –
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective…”
  1. It seems to me that amending an application before it is decided is well within the scope of this power. Deciding questions about summary judgment is part of the court’s management of the case. In my judgment it will often further the overriding objective if the court allows all issues between the parties about summary judgment to be decided at the same time, rather than require the applicant to issue a fresh application.

THE MASTER DID NOT, HOWEVER, EXERCISE HIS DISCRETION

Having decided that a discretion clearly existed the Master stated that it was not appropriate to exercise that discretion on the facts of this case.

  1. So I turn to the (fact-sensitive) question whether it is right to exercise this power in the present case. There is no doubt that the Claimant could issue a fresh application notice for summary judgment based on the extended grounds, which ex hypothesi will not have been adjudicated upon. But, given the terms of the order of Roth J, this could not be done until after the CAT proceedings have been dealt with. There is also no doubt that in general terms it is more efficient for a summary judgment application to be heard once only, on all possible grounds, rather than on two or more occasions, dividing the grounds up between them.
  2. But here it is also the case that before Roth J the exception of the summary judgment application out of the general stay on the chancery proceedings was put on the basis of the alleged effect of the disclaimer in issue in this case, and not at all on the basis of the other two points now raised. What the judge would have thought of the summary judgment argument based on those points as well cannot now be known. The Defendant appears to have agreed to the order of 27 July 2016 on that restricted basis. The other grounds now desired to be raised were not adverted to. There does not appear to have been any clear intimation by the Claimant to the Defendant of the intention to raise those other points until a few days before the hearing itself. Indeed, the evidence of Mr Springett for the Claimant in support of the application was to say that “the foundation of the present application” was reliance on the disclaimer.
  3. In these circumstances I do not think it is right to permit an amendment of the summary judgment application to raise the new points. The new points have been raised late, and what the judge and the defendant would have done had they been raised at the time cannot now be known. Were I to allow the amendment, the main application would probably have to be further delayed to enable the Defendant to put in further evidence, and the hearing of 9 January 2017 would not be effective. Lastly, although I have not yet finished hearing, let alone determined, the summary judgment application, nevertheless, if the Claimant should fail, it may be open to it to issue a fresh application once the stay has come to an end. The Defendant suggests as much in its written submission. (I say “may” because I have not heard any argument on whether there would be any objection to this course, and I am therefore not deciding anything on that point.)
  4. For these reasons I dismiss the application to amend the summary judgment application to add the further grounds.

POSTSCRIPT

The parties settled the action shortly after the Master made the ruling. The judgment was made public because it dealt with a point of practice that had not been dealt with elsewhere.

RELATED POSTS: AMENDMENT

The posts on this issue normally related to amendment of pleadings