ATTEMPTING TO RELY ON MATTERS WHERE PERMISSION TO AMEND HAD BEEN REFUSED: A BRIDGE TOO FAR
In Cleveland Bridge UK Ltd v Sarens (UK) Ltd  EWHC 751 (TCC) the court rejected an attempt by a party to argue a case which had not been pleaded. The defendant had been refused permission to amend its defence and counterclaim and sought a “backdoor” method to introduce similar issues. The attempt failed.
“Where the court has precluded a proposed amendment which seeks to introduce a new factual case, it seems to me that it is not open to the party who has been refused permission to amend to seek to rely on the very same facts as the basis for a slightly different legal argument.”
The parties were in dispute over the terms of a contract. Shortly before the trial the defendant sought permission to amend its defence and counterclaim. That application was refused. Undeterred the defendant served “Further information” and attempted to rely on similar arguments a trial.
Miss Joanna Smith (sitting as a High Court Judge) rejected the defendant’s strategy.
I have set out the nature of Sarens’ defence with some care in circumstances where, shortly before trial, it sought permission substantially to amend its Amended Defence and Counterclaim, to rely on a plea that the Subcontract was formed at a meeting on 30 September 2014 (“the September Meeting“) and that it was evidenced by documents not previously relied upon, including internal notes of the September Meeting. This was an entirely new case, never previously intimated and inconsistent with the case advanced by Sarens before the Adjudicator.
The application to amend was refused by O’Farrell J on 22 February 2018  EWHC 460 (TCC), essentially on the grounds that the proposed amendment was “a material change in case” because “it had always been the parties’ position that there was no oral agreement” and that this new case would require a new approach from CBUK to witnesses, that CBUK would be prejudiced in producing witness statements for a trial starting two and a half weeks later, that its preparation for trial would be disrupted, the trial date would have to be vacated and the trial length increased [24-25]. O’Farrell J also took the view that there was no adequate explanation given for the lateness of the proposed amendment: “…it must have been obvious to everyone that Mr Mitchell’s evidence as to what happened at the meeting was relevant and it must have been obvious that this matter could be of significance to the formation of the subcontract. Mr Mitchell signed a statement of truth in relation to the earlier pleadings submitted by Sarens. Those pleadings did not make any reference to the 30th September meeting let alone plead any form of agreement being reached at that meeting” . In paragraph 28 of her Judgment, O’Farrell J refused permission to amend “so as to change the pleaded case on the formation of the subcontract and/or the terms of the subcontract“.
Notwithstanding its failure to persuade the court to permit it to amend its statement of case to rely upon the September Meeting, Sarens provided Further Information dated 2 March 2018 in which it sought, effectively, to resurrect its arguments in relation to the September Meeting. In Response 4, Sarens pleads its position in relation to its primary case, relying on statements made at the September Meeting on behalf of both Sarens and CBUK which it now says “constituted an offer by CBUK to cap Sarens’ total liability for delay damages at 10% of Sarens’ Subcontract value” and (that offer having been accepted by Sarens starting work on 10 November 2014) “on that basis, it was a term of the Subcontract that Sarens’ total liability for any delay damages would be capped at 10% of Sarens’ Subcontract value“. In Response 7, Sarens relies on additional documents which it asserts evidence the agreement on which it relies as its primary case, which include internal notes of the September Meeting. In Response 11, Sarens again relies on statements made at the September Meeting in support of its secondary case.
In her skeleton for trial, Ms Bodnar, acting on behalf of Sarens, seeks to advance the case set forth in the Further Information by reference to the September Meeting, a case she also sought to maintain (albeit with rather less force) in her oral submissions. In so doing, Ms Bodnar relied upon a witness statement from Mr Mitchell dated 2 February 2018 (which was before O’Farrell J on the application to amend) in which he gives detailed evidence about the September Meeting and says (in paragraph 39) that he is clear that agreement was reached at the September Meeting.
Mr Lixenberg, on behalf of CBUK, strongly objects to Sarens’ reliance on the September Meeting, which he maintains is “nothing short of shocking in its contempt for the Court’s Judgment of 22.2.18”. Whilst I would not use quite the same terms, I am inclined to agree with Mr Lixenberg. Where the court has precluded a proposed amendment which seeks to introduce a new factual case, it seems to me that it is not open to the party who has been refused permission to amend to seek to rely on the very same facts as the basis for a slightly different legal argument. Ingenious as Sarens’ attempt to bring the discussions at the September Meeting back into play may be, it suffers from the very same problems that bedevilled the application to amend. Had an application been made to amend the defence to rely on these re-worked arguments I have no doubt that it would have been refused for the very same reasons identified by O’Farrell J in her judgment.
If I were to permit these arguments, CBUK would have no evidence with which to respond to them and would, in my judgment, be obviously prejudiced. In this regard I note in Ms Bodnar’s skeleton for this hearing at paragraph 27.2 the reference to Mr Mitchell’s evidence as to the September Meeting which she points out is “not contradicted by CBUK“. In my judgment this is simply not a point that is open to her in relation to the September Meeting and illustrates neatly the problems that would be created if I permitted this line of argument. In the circumstances, I decline to have regard to any evidence as to what took place at the September Meeting (including notes made of that meeting and the evidence in Mr Mitchell’s statement) on the basis that it does not form part of the pleaded case advanced by the parties in the Amended Particulars of Claim and the Amended Defence and is therefore inadmissible. I should add, that my decision on this also goes to the use of the September Meeting as part of the factual matrix, which was a yet further argument advanced on behalf of Sarens. Matters which form part of the factual matrix must be pleaded so as to ensure that the other party has an opportunity properly to address them (see Hallman Holding Ltd v Webster  UKPC 3 per Lord Hodge at para 11).
Insofar as Mr Mitchell’s statement deals with matters other than the September Meeting, Sarens relies on it for the purposes of this hearing. CBUK chose not to cross-examine Mr Mitchell and submits that much of his evidence is inadmissible for the purposes of any interpretation exercise that I must undertake.