APPLICATIONS TO AMEND PLEADINGS SHOULD NORMALLY BE SUPPORTED BY A DRAFT AND WITNESS EVIDENCE AS TO THE MERITS: A RIGHT ROYAL ISSUE

December 8, 2022 · by · in Amendment, Appeals, Applications, Statements of Case, Statements of Truth

In  Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso Victor Maria de Borbon y Borbon (Rev1) [2022] EWCA Civ 1595 the Court of Appeal set out the importance of having a draft pleading to hand when seeking permission to amend a statement of case.  Normally a formal application, supported by evidence, should be made.

 

“The judge was wrong to proceed on the basis of a promised but unarticulated amendment to the pleaded case. Unless the particular circumstances make it obviously unnecessary, a formal application to amend is ordinarily required, with a written document setting out the proposed amendments; and, again in general, there is a merits test to overcome in obtaining permission to amend. The pleading must not only be coherent and properly particularised, it must plead allegations which if true would establish a claim that has a real prospect of success. This means that the claim must carry a degree of conviction; and the pleading must be supported by evidence which establishes a factual basis which meets the merits test”

THE CASE

The claimant is bringing an action against the former king of Spain.  The allegations being made relate, in part, to a period when the defendant was still king.  The defendant made an application that the court had no jurisdiction because of immunity under the State Immunity Act 1978.

THE JUDGMENT AT FIRST INSTANCE

At first instance the defendant’s application was dismissed. The claimant was given permission to amend her Particulars of Claim, although no draft of the amended pleading was before the court.

THE DEFENDANT’S SUCCESSFUL APPEAL

The defendant succeeded in its appeal.  Part of the success rested on a consideration of the state immunity argument. The other related to the first instance judge’s decision to give permission to amend the particulars of claim in circumstances where there was no draft pleading before the court, no formal application and no evidence to support any application.

 

THE AMENDED PARTICULARS

The Court of Appeal judgment set out the significant amendments.

    1. The Respondent served Amended Particulars of Claim on 12 April 2022, in accordance with the offer recorded at [75] of the judgment. Again, the pleading is supported by a statement of truth signed and dated by the respondent. Paragraph 4 was amended as follows:
“4. The Defendant used his agents [with the original words, and those of the Spanish state red-lined through] and/or their contractors to carry out some of the elements of the said course of conduct, as set out further below.”
Paragraph 13 as amended read:
“13. … General Sanz Roldán acted in his personal capacity on behalf of the Defendant and not in any official capacity in respect of this and every other allegation involving him made in these Amended Particulars of Claim. Thereafter General Sanz Roldán, and/or other of the Defendant’s agents [with the original words, and/or agents or contractors of the CNI red-lined through] acting on the Defendant’s instructions placed the Claimant, and others close to her, under physical surveillance …”
A similar amendment was made to paragraph 19 asserting that General Sanz Roldán acted in his personal capacity. Amendments deleting all references to the CNI were made at paragraphs 16, 42.4, 42.5, 43, 46.1, 46.5, 46.7, 47, 50, 52 and 56.2.
  1. As Mr Lewis accepted, the respondent has not provided any explanation for the deletion of material allegations from a pleading she had previously supported with a signed statement of truth. Despite the letter of 26 September 2022, he acknowledged that there is no statement from her that she no longer believes her original allegations to be true, or explaining the basis for her newly changed belief about the matters originally pleaded (including the positive allegations of the involvement of the CNI in her harassment) but now deleted in her amended pleading.
PERMISSION CANNOT NORMALLY BE GIVEN FOR UNARTICULATED AMENDMENTS

The Court of Appeal held that it was wrong for the judge to proceed on the basis that the claimant would amend their pleading, even though no draft pleading was to hand.  A formal application should have been made.

    1. The judge was wrong to proceed on the basis of a promised but unarticulated amendment to the pleaded case. Unless the particular circumstances make it obviously unnecessary, a formal application to amend is ordinarily required, with a written document setting out the proposed amendments; and, again in general, there is a merits test to overcome in obtaining permission to amend. The pleading must not only be coherent and properly particularised, it must plead allegations which if true would establish a claim that has a real prospect of success. This means that the claim must carry a degree of conviction; and the pleading must be supported by evidence which establishes a factual basis which meets the merits test: see ED & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 at [8]; Elite Property Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 204 at [41] and [42]; Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33 at [18].
    1. Here, there was no application to amend, still less a formal application supported by a proposed amended pleading and evidence of the kind just indicated. Instead, the approach adopted was strikingly informal. Despite knowing about the state immunity application issued in June 2021 for many months, it was not until shortly before the hearing that the respondent first highlighted an alleged personal relationship between General Sanz Roldán and the appellant in her skeleton argument for the hearing. No proposed amended pleading was produced in advance of or even during the hearing. On the second day of the hearing, Mr Lewis asserted that General Sanz Roldán was (at all times) on a private mission, but he also indicated a potential need to abandon the pre-abdication conduct and submitted that the respondent could live without those allegations and still maintain her claim.
    1. There are cases in which the court can dispense with formalities and treat a defect in a pleading as capable of being cured by amendment where it is obvious that to require an application and evidence would be mere formality. But this was not such a case. Given the stark timing of the suggested amendments, and their stark inconsistency with the existing pleading, it is not, and was not, obvious that the respondent could meet the merits test in this case: there was a real question whether the proposed amendments were simply a device to meet the state immunity arguments. Critically, what was required is an explanation for withdrawing the allegations of CNI involvement, which, even now, has not been provided despite the letter of 26 September 2022 in the Unagreed Bundle. The respondent herself accepts that in considering her amended pleadings the court is required to consider whether the amendments are contrived purely to avoid immunity but fail to do so or, as she contends, whether they simply plead a more developed understanding of her case. However, the judge did not consider this question.
    1. Moreover, the respondent’s approach, in the face of the immunity application, in seeking to disavow, or characterise as ambiguous, allegations made against the CNI was directly contradicted by her statement of truth on her original pleading and by her sworn affidavit evidence deployed in Spanish proceedings. Her amended case of conduct motivated by personal friendship also stands in marked contrast to claims she made to the Spanish media that General Sanz Roldán was acting on behalf of other elements within government, or within the Spanish Royal household, hostile to the appellant, in a bid to bring about the appellant’s abdication or destroy their relationship (as evidenced by a transcript of the respondent’s interview with Okdiario on 28 September 2020, exhibited in the witness statement of Guy Martin, dated 17 October 2022, and served in opposition to the Unagreed Bundle). These were all matters that required careful consideration before giving leave to amend in the first instance. Had the judge conducted the necessary analysis, he would either have refused to permit a last-minute amendment that did no more than aver that those involved were acting in a private capacity; or at best, adjourned the state immunity application to enable a formal application to amend to be made.
  1. This was not, as Mr Lewis suggested, a discretionary case management decision. It was a decision bearing directly on the disposition of the state immunity application. To direct the respondent to amend her pleading in the circumstances and in the informal manner which occurred, was wrong.

THE CONCLUSION

“The judge should not have permitted any of the amendments to the Particulars of Claim set out in the Amended Particulars of Claim. Any application to amend will require a formal application with a proposed draft and must be supported by evidence as to the merits of the proposed amendments.”