AMENDING PLEADINGS? HAVE A DRAFT AT COURT: JUDGE CONSIDERS “CIRCULAR ARGUMENTS” AND A “PARTICULARLY UNFORTUNATE PROCEDURAL LITIGATION HISTORY”

The judgment of HHJ Gore QC (sitting as a High Court judge) in  Sivaji v Ministry of Defence [2020] EWHC 2006 (QB) makes interesting reading. It is an object lesson in the need to have an amended pleading to hand when seeking permission to amend.  Some £60,000 was spent on costs in the application (the defendant apparently being represented by three counsel). A lot of time was spent with the defendant arguing over the terms of an order that it had itself drafted.

“Those layers of complexity have been compounded by a particularly unfortunate procedural litigation history that I am afraid to say only serves to illustrate the perils of leaving litigation to the last minute and also of leaving it to the parties to regulate litigation rather than enabling the court to actively and robustly case manage the litigation.”

“The only thing that is disproportionate and has offended the requirement to save expense and avoid delay, has been the taking of this amendment point in this way at this time, that has caused an outlay of an estimated £60,000 in costs in relation to a claim the estimated value of which is in the region of £200,000”

THE CASE

The claimant is the executrix of the estate of Mr Sivaji who died as a result of exposure to asbestos.  He had worked in the naval dockyard in Singapore.  A claim is being brought for damages.  There are numerous issues, including whether Mr Sivaji was an employee or Crown servant, was he exposed to asbestos, causation and the applicable law.

The claim was issued just before the expiry of the primary limitation period.  The defence denied that the applicable law was English law and asserted that the relevant law was the law of Singapore.

THE COURT ORDER

Master Thornett made an order in March 2019.

3. The Claimant has permission to file and serve amended Particulars of Claim by 4pm on 31 May 2019.

4. The Defendant has permission to file an amended Defence by 4pm on 12 July 2019.

7. The Claimant has permission to file and serve a Reply by 4pm on 9 August 2019.

8. The parties each have permission to instruct an expert in Singaporean law, on the issues of:

a. Whether the claim is actionable under Singaporean law; and, if so,

b. Whether each head of damage sought by the Claimant is actionable under Singaporean law.

9. The Claimant’s expert report is to be served in support of and with her amended Particulars of Claim.

10. The Defendant’s expert report is to be served in support of and with its amended Defence.”

THE DISPUTE ABOUT THE TERMS OF THE ORDER

  1. An unseemly and serious dispute has arisen now about the order dated 27 March 2019. and an awful lot of time energy and research has been devoted to it. That again in my judgment does not flatter the legal representatives or the court. It arises in this way.
  2. The Claimant submits that Master Thornett granted permission to Amend the Particulars of Claim so as to advance an alternative case that the claimant retains a valid cause of action under the law of Singapore enforceable by proceedings in the English court. That is disputed by the Defendant despite the clear wording of paragraph 3 of the Order and the Defendant also submits that the Particulars of Claim cannot be amended to raise this new cause of action without also amending the Claim Form, and neither was there an application nor an Order so to permit. So it is that in response, the Claimant applies to amend the Claim Form, which application is for me to determine today, and also the parties expect me to determine whether the Claimant still requires permission to amend the Particulars of Claim.
  3. So much industry has been devoted to these procedural issues that I have before me a hearing bundle and various iterations of skeleton arguments and supplementary skeleton arguments and supporting evidence and authorities that extends to over 1200 pages, and tens of thousands of pounds have been expended in costs in bringing this matter to this hearing. The principal beneficiaries therefore are the lawyers and I regard that as unseemly. I have not seen any Schedule of Loss, but my experience of asbestos claims and their valuation now extending over more than 40 years entitles to me question whether the costs of this procedural wrangle bear any proportionate relationship to the value of this claim.
  4. With the greatest respect to the industry and learning of counsel, the product in this case is mostly irrelevant to the determination of the issue before me, which, simply stated, is whether the Claimant should be granted permission to amend her case. The principles in this regard are straightforward.

THE WORDING OF THE ORDER CAME FROM THE DEFENDANT

  1. The Claimant’s primary submission advanced by Mr Young, counsel who appears for the Claimant, is that this Order amends the Particulars of Claim pursuant to CPR Part 17.1 either because it is with the written consent of the Defendant (because it is verbatim the draft minute of order suggested by the Defendant and agreed by the Claimant after the hearing before the Master), or alternatively because it was with the permission of the court on the face of the Order itself.
  2. Mr Johnston, counsel who appears for the Defendant, to the contrary submits that this order was infelicitous (his word) in its wording and that all that the Defendant was agreeing to or suggesting was a timetable for the making of an application to amend based on a fully formulated draft, to which the Defendant was neither consenting (because no such draft had been seen) nor was the Defendant waiving rights to object to the formulation of the draft when it became available. So it is that the Defendant now says that because the Claimant’s claims are, or might arguably be statute barred under the law of Singapore, thereby offending the doctrine of double actionability, so these are amendments or proposed amendments outside relevant limitation periods so that any application to amend falls to be considered under CPR part 17.4. This provision severely limits the availability of amendment in such cases so as to avoid the potential injustice to defendants of the doctrine of relation back that has the effect of treating the amended case as taking effect as from the date of the original claim. That would have the effect of treating a claim as having been brought in time for limitation purposes even though as a matter of historical fact it had been commenced out of time.

YOU REALLY SHOULD HAVE A DRAFT AMENDED PLEADING BEFORE THE COURT WHEN SEEKING PERMISSION TO AMEND

    1. The editors of the White Book 2020 in the narrative in Volume 1 at paragraph 17.3.2 say this:
“On an application under r.17.3 a copy of the proposed amended statement of case should be filed with the application notice (as to which, see r.23.6 and PD 23A para.2.1 (para.23APD.2)). Applications for permission in respect of an amendment yet to be identified are unlikely to succeed unless the proposed amendment is agreed by the parties as self-evident and uncontroversial.”
True it is that the following observations can be made:
  • No authority or decided example is given to support the proposition;
  • It is made in relation to applications under CPR Part 17.3(1) but Part 17.3(2)(c) subordinates such applications to the provisions of CPR Part 17.4 to which I will come shortly;
  • However, it seems to me to be a point of general application as apposite to amendment under Part 17.1 and Part 17.4 as it would be to amendment under Part 17.3;
  • Moreover, CPR 17 PD paragraph 1.2 specifically provides that:

“When making an application to amend a statement of case, the applicant should file with the court:

(1) the application notice, and

(2) a copy of the statement of case with the proposed amendments.”
    1. The Master clearly had the thrust of this in mind at the hearing on 27th March 2019 as is evident from observations he made during the course of argument, which included saying:
“So I think there needs to be a proper draft with either agreement, in which case consequential direction for amendments and (inaudible) or in the event of disagreement, permission to restore on the issue of permission.” (internal page 5 letter B of the transcript of the hearing)
and
“I will deal with it on exactly the same basis as I was contemplating last time which is permission in principle but there is an issue, come back, so liberty to reply on that issue today and to come back to the court if there is an issue about the nature or the scope (inaudible) but otherwise permission to amend the claim, defence, through to reply.” (internal page 18 letter D of the transcript of the hearing).
  1. Unfortunately, neither did he carry that thrust through into his judgment nor did he reflect it in the terms of the order he made. Instead, he approved the form of order suggested by the Defendant and in the terms of the sealed Order which I have already recited. Neither party has sought either to correct that Order nor sought permission to appeal against it. Moreover, since it was drawn, neither has the Claimant applied to amend the Particulars of Claim in the form now drafted, which form was filed and served on 28th June 2019, nor has the Defendant applied to strike out that purported amended pleading. In fact, the Defendant has responded to it by filing and serving a purported amended Defence dated 10th September 2019 and the Claimant has responded to that by filing and serving a Reply dated 30th September 2019. Between those 2 dates, the experts in the laws of Singapore provided a joint statement dated 27th September 2019.

 

“WHEN IS AN AMENDMENT NOT AN AMENDMENT”: NOW THERE’S A QUESTION

 

  1. The first issue I have to decide therefore is when is an amendment not an amendment, an unenviable decision to require of a judge other than in an appellate capacity. What makes it particularly unenviable in this case is that this state of affairs was of the Defendant’s making because the Defendant suggested the form of order. What should have happened was, the point having either been taken positively by the Defendant, or at least the Defendant reserving his position in this regard, the application to amend should have been adjourned, pending the obtaining of expert evidence as to which directions were given.
  2. In fact, I venture to suggest that had the Defendant correctly advised the court of its intentions at this stage, even before expert evidence was obtained, the claimant would have realised the urgent need to draft an amendment and would have asked for a short adjournment to deal with that matter promptly, in which event it would have been determined by the Master, probably more than a year ago, and would not be left for determination by me at this hearing.
  3. What then makes the Defendant’s position even more unattractive is that on the one hand he submits that there was no permission to amend, and none should be granted now, yet he also stands and continues to stand on the terms of his amended Defence served in response to a pleading that he submits to have no formal or essential validity.

CIRCULAR ARGUMENTS

The judge considered the arguments put forward by the claimant and defendant.

  1. Both arguments are circular. The claimant’s argument is circular because I ask, not rhetorically, how can you validly and effectively amend a statement of case in a respect that is neither self-evident, nor on the face of it, uncontroversial, without having a draft document to consider. The issue was known to be controversial ever since the Defendant repudiated the claim by protocol response in a detailed fully argued email dated 8th January 2018, approaching a year before the Claim Form was issued. Moreover, it is not correct to say that the Defendant ‘required’ the Claimant to plead. He only pointed out that according to his view of the law, it was necessary for the Claimant to raise this issue. Whether and if so, what matters were in the mind of the Master are neither here nor there. It is the order made that is relevant.
  2. The defendant’s argument is circular, because if correct, then paragraphs 3, 4, 7, 9, and 10 of the Order as drawn were valueless, pointless and of no effect, and all that was necessary was the set of directions concerning the obtaining of expert evidence as to foreign law and discussion of it, yet the Defendant not only advocated the form of order, but then acted upon it in advancing his own pleading.
  3. And so, unassisted by that circularity, I simply have to decide. In my judgment, irrespective of the form of words adopted in the Order, it did not effect, and could not have effected amendment. I am fortified in my view by the comment of the editors of the White Book, which is consistent with CPR 17 PD paragraph 1.2 and my experience of civil litigation for over 4 decades. It is one thing to permit without a draft a proposed amendment that is self-evident and uncontroversial such as an erroneously pleaded date or reference to the wrong document or even sometimes as to a name. It is quite another thing to amend upon an issue known to be controversial and going to the very core question of whether a liability in law arises. The language of the order was not merely and permissibly infelicitous. It neither reflected practice nor rule and was impermissible in the way now relied upon by the claimant. What she needs therefore is permission to amend both the Claim Form and the Particulars of Claim and as I have already indicated, those applications seem to me to stand or fall together.

THE CONDUCT OF THE PARTIES

The judge had some observations about the conduct of the parties.
  1. Having described the parameters for the exercise of discretion, I must return to the history of this claim. The letter before action was dated 25th August 2015 before the deceased died. Despite 4 chaser letters and one complaint, the first substantive but incomplete response was dated 14th March 2017. Thereafter the Defendant sought further extensions of time to complete research and investigation. True it is that in the response dated 14th March 2017, the Defendant did raise as an issue the doctrine of double actionability, but it was not until 8th January 2018 that a full substantive response is forthcoming from the Defendant to the letter of claim and that is a reasoned repudiation of the claim. In that response, liability is denied for a whole raft of reasons including but not limited to asserting that the English duties relied upon by the Claimant had no extraterritorial effect, that in any event the doctrine of double actionability applied and the facts gave rise to no claim according to the law of Singapore, and even if they did, any cause of action was statute barred under the law of Singapore, and finally, even if all of that were wrong, sovereign immunity protected the Defendant. T That as I have indicated takes us very close to the expiry of the English limitation period. Service took place on 13th November 2018, and Acknowledgement of Service was filed on 26th November 2018. The original Particulars of Claim were served with the Claim Form. The Defence was due on 11th December 2018. The Defendant sought and obtained either by consent or pursuant to court order, 5 extensions of time and did not serve the original Defence until 19th February 2019. I have already detailed how the matter then came for first costs and case management hearing before Master Thornett on 27th March 2019, initially as a ‘show cause’ hearing under the Mesothelioma Practice Direction in CPR 3 PDD. Thereafter, everyone is overtaken by the Covid 19 health emergency, including, of particular relevance, the closing of the National Archive.
  2. This history does not reflect well on the parties but contrary to the submissions of Mr Johnston, it reflects particularly badly on the Defendant. I do not accept his submission that the Defendant has behaved like an exemplary opponent drawing to the attention of the Claimant her failings in failing to formulate the claim under the law of Singapore. It took the Defendant 17 months to even begin to raise the issue (preliminary response dated 14th March 2017), and in fact it took him 27 months to detail why the claim was repudiated in the formal response letter (8th January 2018).
  3. I also reject Mr Johnston’s submission that this is excusable because this is an important test case that requires detailed investigation and response because of potential impact on other cases. There can now be very few people alive who were exposed to asbestos in the naval dockyard in Singapore before independence or before 1968 when the deceased ceased working there.
  4. I also reject Mr Johnston’s submission that any delay there may have been on the part of the Defendant can be excused by the need to undertake further research as regards the constitutional position and the arrangements concerning the control and administration of the naval dockyard in Singapore that require access to the National Archive. The Defendant had 3½ years in which to undertake those researches before the health emergency closed the National Archive, and the whole structure of CPR 3 PDD required that it do so and produce the necessary evidence to show cause why judgment should not be entered before the hearing on 27th March 2019 which was a year before lockdown.

GRANTING PERMISSION TO AMEND

The judge granted the claimant permission to amend, applying established principles.

    1. In my judgment, the following conclusions are justified on the history that I have now set out in detail.
a) The amended claims if permitted, have a real as opposed to a fanciful prospect of success. If the applicable substantive law is as asserted in the Amended Particulars of Claim, and given that the Defendant has no evidence to refute the assertion made by the deceased in his witness statement from his own personal knowledge that he was exposed to substantial quantities of asbestos dust as described, liability would be established;
b) Given that save to cover the investigation of foreign law, no case management directions have even been given let alone complied with in this case, and that no trial date has ever been set, this is not a late, let alone a very late amendment;
c) While the effect of granting permission would be to deny the Defendant the benefit of the limitation defence under Singapore law due to the doctrine of relation back in relation to the dependency claims (and might even do so in relation also to the estate claims because in the Reply, the Claimant seeks a declaration pursuant to section 2 of the Foreign Limitation Periods Act 1984 that application of Singaporean limitation law would cause undue hardship), it would not necessitate the Defendant to investigate and deal with new matters. To the contrary, the Defendant would still have to investigate evidence and demonstrate its case on all of these matters in order to seek to defeat the Claimant’s case by virtue of the positive averments made in the original Defence;
d) The relevant facts in issue are those relating to the issues I identified in paragraph 3 of this judgment, and as was observed by Jackson J in Charles Church, it seems to me that a claimant who establishes those facts should be entitled to any appropriate remedy upon the basis of those facts, therefore whether that is because English law alone applies (the Claimant’s primary case) or because that would be true under the law of Singapore too, satisfying the double actionability doctrine (the Claimant’s alternative claim sought to be introduced by the proposed amendments);
e) The proposed amendments fall squarely within the scope of CPR Part 17.4 subject only to the question of discretion, which I am now considering, because the first 3 questions posed in Hyde are answered in the affirmative;
f) The Claimant has not delayed unreasonably. Delay until the full reasoned repudiation dated 8th January 2018 was justified because until that point, still within the English limitation period, the Claimant might have been criticised for prematurity if the Claim Form was issued before the Protocol response. If there is any proper criticism of the Claimant, it was for permitting that degree of indulgence to the Defendant in the first place. The delay that counts then is from January 2018 until the Amended Particulars of Claim are first purportedly served on 28th June 2019. In my judgment it ill-behoves a Defendant to criticise claimant delay during that period for failing to plead the alternative case that the Defendant has identified and introduced into the dispute. It is after all an alternative case that the Defendant has identified and is aware of;
g) The proposed amendments do not in my judgment offend the overriding objective. Quite the contrary. Were I to refuse the application, the Defendant who filibustered the response to this claim for 3½ years before taking this point would thereby secure the potential benefit of a limitation defence that would not have been available to him had he made a timely response to the letter of claim in the first place. That is deeply unattractive. It would not place the parties on an equal footing but would secure for the Defendant an unfair advantage. The only thing that is disproportionate and has offended the requirement to save expense and avoid delay, has been the taking of this amendment point in this way at this time, that has caused an outlay of an estimated £60,000 in costs in relation to a claim the estimated value of which is in the region of £200,000. The issues raised by the proposed amendment are in fact positively raised by the original Defence and therefore will be litigated whether the amendments are allowed or not, and therefore the amendments do not otherwise cause either expense, or delay, there having been no case management yet and no trial date having been set.
  1. For all of these reasons as a matter of discretion, I accede to the Claimant’s applications and grant permission to amend both the Particulars of Claim and the Claim Form in the form of the drafts that have been circulated.