LETTER STATING THAT THE DEFENDANT CONSENTED TO SOME AMENDMENTS DID NOT OUST COURT’S JURISDICTION: TRY TO AMEND AT YOUR PERIL
In Scott & Ors v Singh  EWHC 1714 (Comm) HHJ Eyre QC rejected an argument that a letter stating that the defendants agreed to some proposed amendments by the claimant meant that the court had no jurisdiction to prevent proposed amendments.
The judge was considering an application by the claimant to amend the Particulars of Claim. After the draft judgment was handed down refusing permission to amend the claimant put in further submissions arguing that the defendant had agreed to the amendments and the court had no jurisdiction to prevent this.
THE JUDGMENT ON THIS ISSUE
The judge set out his decision refusing permission to amend and the subsequent written submissions received from the claimant.
66. In his submissions following receipt of the draft judgment Mr. Bergin said that the foregoing analysis was fatally flawed. He said that the approach taken to the Financial Representations overlooked the effect of the 14th February 2020 letter from the Defendant’s solicitors. As I have explained above in that letter those solicitors said that the Defendant was consenting pursuant to CPR Pt 17.1 (2)(a) to parts of the draft which had been sent to them but not to others. Mr. Bergin said that the letter was effective as consent under Pt 17.1(2)(a) with the consequence that the Claimants were entitled to amend the Particulars of Claim to the extent of that consent and that the court had no jurisdiction to prevent this. He said that there was a further and crucial consequence of this namely that for the Defendant to address the matters covered in the permitted amendments would require him to undertake precisely the exercise which I have described in  above. It follows, the Claimants say, that my conclusion that permitting the proposed amendments would jeopardise the trial date was untenable. This was either because the work in question would have to be done anyway (so that the further amendment would not be the matter putting the trial date at risk) or because it was not open to the Defendant to say that the trial date was at risk.
Mr. Bergin asserted that this argument had been raised at the hearing in April. It is correct that mention was made of the letter of 14th February 2020 and that the Claimants’ arguments were focussed on those parts of its proposed pleading which the Defendant had indicated were contentious. However, the argument in its current form did not in my recollection feature at the hearing. Nonetheless, it is to be addressed on its merits.
The argument depends on the effect of CPR Pt 17.1 (2). That provides that a statement of case made be amended either under (a) “with the written consent of all the other parties” or under (b) “with the permission of the court”. In my judgement those provisions must be read as having reference to a statement of case seen as a single document and not to distinct parts of a proposed statement of case of which other parts lack consent or permission. That follows from the facts that the provision is for amendment of a statement of case as a whole and that the operation of the Rules requires that at any given time there needs to be a particular document which can be identified as the relevant statement of case of a given party. If Mr. Bergin’s argument is right and a consent to some parts but not others of a proposed statement of case is binding on the parties and the court then the position would be that there would be a period of time when there was no single document which could be identified as the relevant statement of case.
The letter of 14th February 2020 did not approve an identified statement of case. The Defendant’s solicitors indicated that there was consent to parts of the proposed amended pleading but resistance to others. There was no consent to the draft which had been proposed nor was there a consent to any identifiable document. It would have been open to the Claimants to produce a revised draft amended pleading containing only those elements to which the Defendant’s consent had been indicated. It is possible that such a pleading could be said to have been amended with consent though there would be at least scope for an argument that the consent would need to be confirmed afresh with reference to the particular document. If that had been done it would have been open to the Claimants then to apply to the court seeking the court’s permission for a re-amendment containing the elements to which the Defendant objected. However, the Claimants did not take that course. Instead they applied more than a month after the 14th February 2020 letter for permission to amend in a more extensive format. It is of note that the application sought the court’s permission for amendment in a particular form. If and to the extent that permission is given as a result of that application the resulting statement of case will be recorded as having been amended with the permission of the court pursuant to Pt 17.1 (2)(b). It would not be said to be amended with that permission in some respects and with consent pursuant to Pt 17.1 (2)(a) in other respects.
It follows that the position here is that it has not been possible at any stage to identify a particular amended statement of case for which the Claimants have the Defendant’s written consent. Rather there is an application seeking the court’s permission for an amended pleading in a form going beyond that of an amended pleading containing solely those elements for which the Defendant had indicated consent was forthcoming. In those circumstances the court’s jurisdiction is not ousted and it is not open to the Claimants to contend that they are entitled regardless of any decision of the court to amend by creation at some future date of a statement of case containing those elements to which the Defendant indicated in February that there was no objection.