Those who draft pleadings, particularly those alleging fraud and misconduct, have much to learn from the judgment of Mr Justice Johnson in AXA Insurance UK PLC v Kryeziu & Ors [2023] EWHC 3233 (KB). The fact that a party is alleging fraud does not absolve them from the duty to plead the facts upon which they rely. Further it does not allow a party to ignore the rules of court in relation to disclosure.

“… I unhesitatingly reject the appellant’s assertion that it was entitled deliberately to breach a court order and rules of court.”



The appellant insurer brought an action against a number of people alleging that it had made an insurance payment in what was, essentially, a fraudulent claim involving a hired white transit van.   When it pleaded it case it “held back” part of the allegations being made.  After exchange of witness statements it applied for permission to amend its case.  The application to amend was dismissed.  The insurer’s appeal against that refusal was allowed, in part.  However both judges were less than happy with the way in which the insurer had conducted the case to date.




  1. The appellant paid out on insurance claims made by the respondents for a road traffic accident. It subsequently decided there had been no genuine accident and the claims were fraudulent. It brought proceedings in deceit and conspiracy against the respondents. It initially held back part of its case until after the respondents had committed themselves to an account in their witness statements. Thereafter, it sought permission to amend its case. HHJ Lethem refused permission to amend, declared that the appellant was estopped from seeking adverse findings against the second to fifth respondents, and struck out the claim. The appellant appeals against each of these three orders, with the permission of Soole J.


    1. The appeals raise these (among other) issues:
(1) What is required to plead an allegation of fraud?
(2) Was the appellant entitled to hold back details of its case until after the respondents had committed themselves to an account in their witness statements?
(3) Did the settlement agreement restrict the findings that the appellant could seek in its action against the respondent?



There was an issue as to the extent to which the insurer had to plead allegations of fraud.  The insurer asserted that it was not necessary to plead the facts upon which fraud was being alleged.  This argument was rejected at first instance and on appeal.

    1. Like HHJ Lethem, I reject the appellant’s submission. Where a party alleges fraud, that party must plead the facts on which reliance is placed:
(1) CPR 16.4(1) requires that particulars of claim include a concise statement of the facts on which the claimant relies. This, in itself, provides a sufficient basis to reject the appellant’s submission.
(2) Where a party makes an allegation of dishonesty, he must set out the facts on which he relies to substantiate the allegation. Otherwise, the allegation will be struck out: Three Rivers District Council and others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 per Lord Hobhouse at [161] and Lord Millett at [183] – [190]. No more than a concise statement of the facts relied on is required: Sofer v Swissindependent Trustees SA [2020] EWCA Civ 699 per Arnold LJ at [23] – [24].
(3) The King’s Bench Guide (2023) states at paragraph 5.32 that allegations of fraud will require to be particularised, meaning that the relevant allegations are set out (which may include listing the facts from which the court is asked to infer dishonesty). Similar statements appear in the Commercial Court Guide (at paragraph C1.3(c)) and the Chancery Guide (at paragraphs 4.8-4.9).
    1. I also reject Mr Taylor’s submission. It is permissible for a party to allege fraud if that party has a proper evidential basis for establishing each of the ingredients of the tort. The party must set out the facts on which it relies, including the facts which show that the representation was false. It does not, however, have to go further and set out the true underlying facts (which is what would be required to plead why the accident was not genuine). A party is not prevented from alleging fraud if it does not know the true underlying factual position (other than that the representation was false). Take three examples that were discussed during argument:
(1) A claimant who has been fraudulently induced to purchase a watch on the basis that it was manufactured by Rolex is not required to establish who in fact manufactured the watch. It is sufficient to establish that the defendant knew that it was not manufactured by Rolex.
(2) A claimant who has been fraudulently induced to purchase a painting on the basis that it was painted by Picasso is not required to establish the identity of the true artist. It is sufficient to establish that it was not (to the defendant’s knowledge), Picasso.
(3) In the present type of case, an insurer that has been fraudulently induced to pay out on a claim for a road traffic accident may be able to show that the claim is not genuine, without being able to set out precisely what had happened. For example, the defendant may have made many identical previous claims, and may have been overheard boasting about making fraudulent claims, to the extent that the court is able to find that the claim is fraudulent. It does not matter that the insurer is unable to show precisely what in fact had happened (for example, whether no collision at all had occurred, or whether there was a staged collision and, if so, which vehicles were involved, where and when the staged collision occurred and who was in each vehicle at the time).
    1. In each of these examples, if the claimant can establish the ingredients of a legally recognised wrong it is, in principle, entitled to judgment even though it does not know the details of the underlying facts.
    1. The two first instance judgments on which Mr Taylor relies do not support the suggestion that it is necessary to explain why (or the respect in which) a claimed accident was not “genuine”.
    1. In Kasem Saini J said at [42]:
“…the Trust’s Particulars of Claim should in my judgment have contained at least the following:
i) The precise representations made by Mr Kasem in the course of his civil claim (and whether they were express or implied);
ii) The precise respects in which representations made by Mr Kasem were factually false;
iii) The state of knowledge of the Trust at the point of making the Part 36 offer and how the Trust relied upon the representations;
iv) The material received by the Trust subsequent to the acceptance of the Part 36 offer which showed that Mr Kasem had provided false information, identifying when such information was received and the precise respects in which the information subsequently received showed the falsity of the representations; and
v) The facts relied upon to the effect that Mr Kasem made the representations knowing the same to be false and/or reckless as to the truth of the same.”
    1. In Michael Wilson HHJ Pelling said, at [71]:
“…if a claim in deceit is to be made against the 2nd to 5th defendants, it is necessary to identify each costs order under challenge and then in relation to each plead (a) who it is alleged made the implied representation relied on, by what means and to whom it was made, (b) the terms of the implied representation allegedly made, (c) the facts and matters relied on from which it is alleged the implied representation is to be implied, (d) that it is alleged the representation was false, (e) any facts or matters relied on to support the contention that the representation relied on was false, (f) assuming it is so alleged, that the representation was made knowing it to be untrue or recklessly as to whether it was true or false, (g) all the facts and matters relied on from which it is alleged that deceit in this sense is to be inferred, (h) what if any reliance was placed on the representation, by whom and with what result and (i) what loss is claimed to have been caused. No attempt has been made to grapple with these requirements in the VFI. It is simply not good enough to make generalised allegations of wrong doing against the defendants without descending to this level of detail …”
    1. In Kasem, the critical element (for present purposes) is (ii) – the need “to set out the precise respects in which representations made by Mr Kasem were factually false.” That does not mean that in every case it is necessary to set out precisely the true underlying factual position. Instead, it is sufficient to set out the facts relied on to show that the representation was false. In Michael Wilson, the critical elements are (e) and (g) – the need to plead any facts and matters relied on to show the representation was false and was dishonestly made. Again, that does not mean that it is necessary precisely to establish the true underlying facts. It is sufficient if the pleaded facts are capable of establishing that the defendant knew that the watch was not a Rolex, or that the painter was not Picasso, or that there had been no genuine accident.
  1. Mr Taylor also relied on precedents from Atkin’s Encyclopaedia of Court Forms in Civil Proceedings, Vol 27(2) Misrepresentation (2017) at §611, and Bullen, Leake and Jacob’s Precedents of Pleadings (19th edition, 2020) at 58-P2. In each case, the true underlying position is pleaded. That does not, however, mean that it is necessary to plead the true underlying position where that is not known by the party, and where the party is able to establish falsity and dishonesty by other means. Nothing in the narrative commentary in Bullen, Leake and Jacob suggests that is necessary.


Johnson J was categorical in his view that it was not proper for the insurer to hold back documents upon which it was going to rely.  The situation here was not analogous to holding back surveillance evidence.


Was the appellant entitled to hold back details of its case until after the respondent had committed himself to an account in his witness statement?
    1. The appellant has always intended to rely on the Facebook point as part of its case to establish fraud. The underlying fact is that the appellant and Mr Fraser knew each other. If they had not known each other then it is not so easy to see how the claim could have been fraudulent in the sense of there having been no genuine accident at all. But if they had known each other then (1) there is the scope for them to have conspired to commit fraud, and (2) if there was no conspiracy there is an apparent coincidence that the two people who were involved in a collision (and who were both several miles away from their homes) were known to each other.
    1. Arguably, this is the primary fact on which the appellant seeks to rely. Because this was a fact on which it relied to support its claim, it was required to plead this fact (albeit not, necessarily, the underlying evidence): CPR 16.4(1). It failed to do so.
    1. The appellant was in possession of a document which shows that the appellant and Mr Fraser were Facebook friends. The appellant relies on this document. The appellant says it adversely affects the respondent’s case. It is therefore a document that falls within the ambit of standard disclosure: CPR 31.6(a), CPR 31.6(b)(ii). There was no question of the appellant seeking to claim privilege in respect of this document. It was always the appellant’s intention to rely on the document.
    1. DJ Bishop’s order required the appellant to give standard disclosure. The appellant was therefore required to include the document in its list: CPR 31.6, CPR 31.10. The appellant was also required to provide a disclosure statement, unless the parties agreed to dispense with this requirement: CPR 31.10(5), 31.10(8). That is a statement certifying that the person signing the statement understood the duty to disclose documents, and certifying that he had carried out that duty to the best of his knowledge: CPR 31.10(6). Proceedings for contempt of court may be brought against a person who knowingly makes a false disclosure statement: CPR 31.23(1). A party may not rely on any document which it fails to disclose unless the court gives permission: CPR 31.21.
    1. The appellant accepts that the document fell within the ambit of standard disclosure, and that it knowingly and deliberately breached the court’s order.
    1. It advances three claimed justifications.
    1. The first justification is that the document was “the respondent’s document”. This is incorrect. The document was a printout that the appellant obtained of information that was (then) publicly available. The document belonged to the appellant. In any event, ownership of the document is irrelevant. The appellant was in physical possession of the document. That is sufficient to give rise to a duty to disclose: CPR 31.8(1), 31.8(2)(a). The appellant’s real point was that the documents recorded information which was known by the appellant. Again, however, that does not provide any exemption from the duty to disclose. Nor does it provide any justification for non-disclosure in breach of a court order and rules of court.
    1. The second justification is that the courts permit late disclosure of surveillance evidence, and this is analogous. This was put forward more on the basis of assertion than reasoned argument. I was not taken to any of the applicable authorities. The principles are summarised in Muyepa v Ministry of Defence [2021] EWHC 2236 (QB), Douglas v O’Neill [2011] EWHC 601 (QB) and Rall v Hume [2001] EWCA Civ 146[2001] 3 All ER 248. At the point that surveillance evidence is obtained, it is, generally, privileged. The defendant may not have decided, at the point at which the evidence is obtained, whether or not to rely on it. That may depend on the medical evidence and/or what the claimant says in their witness statement. If and when the defendant decides to rely on the evidence it must be provided to the claimant. If it is provided timeously, so that it “does not amount to trial by ambush” then it may well be in the interests of justice to permit the evidence to be deployed at trial. There is nothing in the authorities that suggests that a party is entitled to breach a court order or rules of court.
    1. The position here is that the appellant intended from the outset to rely on the Facebook point. Its intention to rely on the evidence was not dependent on what the respondent said in his statement. Its only reason for withholding the evidence until after the exchange of witness statements was in the hope that the respondent would be caught out in a lie in his statement. The appellant accepts that it should have been disclosed and does not suggest it was covered by privilege. It made a deliberate decision to act in breach of a court order and the rules. Muyepa itself concerned both surveillance evidence and Facebook evidence. HHJ Auerbach held (at [22]) that the Facebook evidence was “subject to the ordinary, ongoing duty of disclosure.” It was not disclosed immediately, with the result that HHJ Auerbach decided whether it should be admitted by reference to the test for relief from sanctions.
    1. I do not therefore accept that the so-called “surveillance analogy” provides any justification for a breach of the court’s order or the court rules. The appellant thereby required relief from sanctions to rely on the Facebook point.
    1. The third justification is that this is said to be “asymmetric litigation” where there is a strong public interest in enabling insurers fully to investigate allegations of fraud. Mr Higgins relies on judicial observations as to the prevalence of bogus damages claims, and the public interest that is thereby engaged: Kearsley v Klarfeld [2005] EWCA Civ 1510[2006] 2 All ER 303 per Brooke LJ at [32], Singh v Habib [2011] EWCA Civ 599 per Sir Anthony May PQBD at [15], Hussain v Sarkar [2010] EWCA Civ 301 per Toulson LJ (quoting observations of Smith LJ when she granted permission to appeal in that case) at [27]. He says that this justifies “a purposive approach to the rules”, which I take as a euphemism for “permitting a deliberate breach of the rules”. Again, I disagree. There is no doubt that there are fraudulent insurance claims, and that these are difficult for insurers to investigate. Where a claim is indeed fraudulent, then the subsequent litigation may be asymmetric in that the insurer is left having to prove a negative in circumstances where it may only be the fraudster that knows the true position. None of that remotely justifies a deliberate breach of rules of court or a court order simply because the appellant decides for itself that it has been defrauded and that the public interest requires it to keep its cards close to its chest.
    1. That does not necessarily mean that the appellant was obliged to disclose its evidence before the respondent committed himself to an account. The appellant could have sought to press the points it had raised in pre-action correspondence by asking the respondent to provide further information as to whether he had previously known or had any dealings with Mr Fraser (and the appellant came close to doing just this). The appellant could have pleaded reliance on there having been some form of relationship between the respondent and Mr Fraser without necessarily setting out, at that point, the evidence on which it relied. The respondent would have been required to respond to that plea in his defence. The appellant could have sought to persuade the court to order sequential disclosure, or a form of disclosure other than standard disclosure, so as to require the defendant to show his hand first. Even if the appellant could not have avoided disclosure of the Facebook document before the respondent made a witness statement, the risk that the respondent would thereby dishonestly tailor his account to the evidence in a way that could not be detected is overstated. For example, it is likely that Facebook hold electronic records which provide further detail of the extent of the relationship between the respondent and Mr Fraser, such that anything said by the respondent may have been capable of being checked.
  1. Accordingly, I unhesitatingly reject the appellant’s assertion that it was entitled deliberately to breach a court order and rules of court.


The appeal was allowed in part.   Part of the proposed amendment was, in effect, an attempt to plead evidence and it was held that this had to be clarified.  The insurer was granted relief from sanctions to enable it to rely on the Facebook documents it should have disclosed.   The insurer was not allowed to plead exemplary damages because of its conduct to date.

    1. The highly experienced judge had case managed the claim throughout. He was faced with parties that had, in certain respects, singularly failed to comply with their obligations to comply with court orders and assist the court to further the overriding objective. The appellant had deliberately breached the court’s order in respect of disclosure. The respondent had waited until the pre-trial review to ventilate complaints about the way in which the claim had been pleaded. He had failed to provide any instructions as to the Facebook point. He had also (as it later turned out) failed to comply with his own disclosure obligations. The judge was left to do what he could to further the overriding objective. He gave a clearly reasoned, detailed and thorough ex tempore judgment following submissions from the parties that had lasted for almost the entire court day.
    1. An appeal court will allow an appeal where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity: CPR 52.21(3). Here, there is no suggestion of any irregularity. The appellant says that the judge’s decision was wrong. Part of the judge’s judgment involved the exercise of a case management discretion. The fact that an appeal court would have exercised the discretion in a different way does not mean that the judge was wrong. It must be shown that the judge’s decision erred in fact or law or reached a conclusion which falls outside the generous ambit within which reasonable disagreement is possible: Commissioner of Police of the Metropolis v Abdulle [2015] EWCA Civ 1260[2016] 1 WLR 898 per Lewison LJ at [28].
    1. I do not consider that there is any merit (on the evidence that is presently available) in the complaint that the respondent should have disclosed the Facebook document. It is possible that the Facebook friendship post-dated the accident. If so, it is not clear that it fell within the respondent’s obligation of standard disclosure (even if the respondent is properly regarded as being in possession of the document).
    1. As to the balance of the issues, the judge’s critical conclusions are that:
(1) The appellant’s pleaded case in deceit was defective.
(2) The appellant was entitled to withhold the Facebook material until the exchange of witness statements, but should then have disclosed it without further delay.
(3) Even after exchange of witness statements, the appellant had delayed in providing the material on which it relied for a further 7 weeks without any justification.
(4) It would take the respondent a great deal of time and effort to respond to the new material. The case had effectively been set back to square one. There was not sufficient time to respond before the trial date, so if the amendments were allowed the trial would have to be vacated.
    1. In principle, if these premises had been well-founded, the judge’s decision to refuse permission to amend could not have been faulted. However, I do not think that these premises were well founded. As to the four critical points:
(1) Adequacy of the pleaded case: For the reasons I have given at paragraphs 34 – 41 above, it was sufficient for the appellant to allege that it was not (to the respondent’s knowledge) a genuine accident and to set out the facts on which the appellant relied. Those facts were (in principle) capable of supporting the allegation that there had not been a genuine accident: if the physical evidence is incompatible with the account given then that is capable of supporting an allegation that the account was dishonest and untrue. The same applies to the proposed amendments. To take the Facebook point, if it were the case that the respondent and Mr Fraser knew each other before the accident then there is, on the respondent’s case, potentially a remarkable (the appellant would say incredible) coincidence. That is also capable of supporting an allegation of fraud. It was not necessary for the appellant, which did not and could not know what in fact had happened to cause the damage to the vehicles, to set out its case as to the true underlying facts. The elements of the tort had been pleaded and (aside from the proposed amendments) the facts on which the appellant relied had been pleaded. Those facts were capable of supporting the claim in deceit.
(2) Facebook point: for the reasons at paragraphs 42 – 54 above, the appellant was not entitled to hold its case back until exchange of witness statements. It should have pleaded the facts on which it relied, and it should have disclosed the documents on which it relied.
(3) Delay in provision of material: The appellant had not delayed in the provision of the Facebook material for 7 weeks after the exchange of witness statements. The material had been exhibited to one of the statements exchanged by the appellant, so there was no delay at all. It is regrettable that this clear (but entirely understandable) factual error was not picked up by the advocates at the time.
(4) Whether sufficient time to respond: It has not been shown that it would have taken the respondent a great deal of time to respond to each and every one of the amendments, such that each amendment would, in itself, put the trial date in jeopardy. The plea of exemplary damages would not have required any further work at all. The plea as to the route taken may not necessarily have required any further work: it may simply have been a matter of cross-examination of the respondent. I deal with the Facebook point separately at paragraphs 85 – 89 below.
    1. For each of these reasons, I consider that there were flaws in the underlying assumptions on which the judge exercised his discretion to refuse the amendments. I recognise that the judge made reference to the separate amendments that were sought, but there is force in the point that the proposed amendments were considered compendiously rather than each being considered on its own merits.
    1. It is therefore necessary to decide afresh whether permission to amend should be granted. I do so by reference to what the parties appeared to agree were the five most significant amendments (see paragraph 62 above).
    1. The route: The appellant could not have known before exchange of witness statements what route the respondent was going to have claimed to have taken to have reached the scene of the accident. The respondent’s explanation in his statement is that he was travelling from Croydon (where he lived) to Barking (where his partner’s parents lived). The alleged accident scene was in Wanstead. That is not between Croydon and Barking. It is several miles away from any obvious route between Croydon and Barking. The appellant is clearly entitled to rely on these matters, which derive from the respondent’s own evidence. It is understandable that it took a little time to analyse the exchanged evidence and, in particular, the respondent’s account of the route. The application to amend the particulars of claim was made within a relatively short period of time of the exchange of witness statements (which had been delayed at the respondent’s request). I do not consider it is reasonably likely that this amendment would have put the trial date in jeopardy, or that it will now cause substantial delay or additional cost. It has not been suggested that this amendment would cause any further disclosure or even, necessarily, any supplementary statement. The respondent has already set out, in some detail, his rationale for the route that he took.
    1. The form of the proposed amendment is undesirable and unwieldy. It amounts to 5 pages of pleading which has been lifted from a witness statement. It includes maps, argument and evidence. The amendment is introduced with the words “the route taken by the Defendant to the location of the alleged collision is so illogical and improbable as to be incapable of belief.” That is all that is required concisely to identify the facts on which the appellant relies (which is all that is required). I will grant permission to amend to that extent, whilst refusing permission to amend to include all of the detail that has been lifted from a witness statement.
    1. Facebook point: The respondent, by way of a Respondent’s Notice, contends that the appellant should have pleaded the Facebook point, and that the document should have been disclosed. I agree. The appellant breached the court’s disclosure order, and the rules relating to disclosure. He is not entitled to permission to amend unless he first secures relief from sanctions. The test for granting relief from sanctions is set out in Denton v White [2014] EWCA Civ 906[2014] 1 WLR 3926 per Sir Terence Etherton MR and Vos LJ at [25] – [38]: the judge must identify and assess (1) the seriousness or significance of the breach of the rule or court order, (2) why it occurred, and (3) what is required to deal with the case justly.
    1. Here, the breach was serious and significant. It amounted to a deliberate breach of a court order and rule of court on a matter that lay at the heart of the appellant’s case. The breach was deliberate, and was to seek to catch the respondent out in circumstances where the appellant considered that it was facing asymmetric litigation which required it to adopt what it terms a “purposive” approach to the rules to ensure fairness. The nature of the breach, and the reasons for it, militate significantly against the grant of relief from sanctions, but that does not necessarily mean that relief must be refused. It is necessary to consider how to deal with the case justly to both parties.
    1. Refusing relief would deprive the appellant of a (possibly the) key part of its case in a claim for fraud. Granting relief would not mean that the respondent is facing any additional headline allegation. Either way, he will face a simple binary case as to whether the accident had genuinely occurred as he described, or not. If relief is granted he will have to deal with an additional piece of evidence. It is difficult to see why that will cause any significant evidential prejudice or why he would not have been able to deal with the point in the time that was available before trial. He would first need to give his lawyers instructions as to the true position. Inexplicably, even this basic step had not been taken, despite the fact that he had been aware of the point for 3½ months before the first instance hearing. Mr Taylor told the judge that he had the “luxury” of not having instructions.
    1. One possibility is that the Facebook friendship only arose after the accident. If that were the case, then it is difficult to see why that basic fact could not have been communicated to the court and the respondent, with perhaps a document from the respondent’s private Facebook account to establish when they had become Facebook friends. That may then have been a complete answer to the point. Alternatively, if the Facebook friendship pre-dated the accident then the respondent would be left to give any explanation he could as to the apparent coincidence that the person who had collided with him when they were both several miles away from their homes happened to be a Facebook friend. Again, it is difficult to see why it would take a long time to produce such an explanation, or why it would need extensive enquiries of Facebook.
    1. Part of the overriding objective of dealing with a case justly involves enforcing compliance with rules, practice directions and orders: CPR 1.1(2)(f). Here, the appellant’s breach of the rules can be marked by way of the imposition of an appropriate sanction. In particular, significant costs sanctions can be applied. The precise ambit of these can be the subject of further submissions but, in principle, they are likely to include at the very least the payment of the costs of the application and any cost consequences of the late disclosure. I also consider, for the reasons given further below, that the appellant’s breach of the rules can be marked by refusing to entertain an exemplary damages claim.
    1. Having regard to the sanctions that can be imposed for the appellant’s conduct, and to the respondent’s ability to deal with the amended case, I do not consider that the ultimate sanction of refusing to permit the appellant to advance the central strand of its case would be justified. I will therefore grant permission to amend on this point, which also includes an amendment (which was at least partly implicit in the original pleading) to the effect that Mr Fraser was a co-conspirator who had failed to co-operate with the appellant’s investigation.
    1. Anomalies in the medical evidence: This proposed amendment effectively alerts the respondent to points that are likely to be taken in cross-examination (such as the fact that in his claim notification form he said that he had no time off work and did not mention any eye injury, yet later he said he had 3 days off work, had reduced his working hours for 4 weeks, and that he had injured his left eye). It is difficult to see that this necessitates any further significant work on the respondent’s part other than, perhaps, responding to questions in cross-examination.
    1. Positioning of the vehicles: The respondent told his medical expert that at the time of the collision he was “stationary and about to turn right” whereas the account he now gives is that he was stationary and waiting for oncoming traffic to pass before carrying on up the road and taking the next right hand turn. The judge did not consider this apparent discrepancy was particularly significant. I agree that it is unlikely that this discrepancy would, in isolation, be capable of sustaining an allegation of fraud. It does not, however, stand alone. It falls to be considered in the context of the other matters on which the appellant relies. In that context, without overstating its significance, there is some prospect of it having a material impact. It is not something that will require any further work to be done in advance of trial – again it will be a matter for the respondent to address in the course of cross-examination. If this issue stood alone then, like the judge, I would have refused permission to amend. As it is, as part of the constellation of other facts which will go forward, I grant permission to amend to deal with this issue as well.
    1. Exemplary damages: The basis for the claim in exemplary damages is said to be that the respondent’s conduct in intimating dishonest claims was calculated to make a profit that would exceed the compensation payable to the appellant. That does not depend on anything that was discovered after the claim was started. The claim for exemplary damages should have been made, if it was to be made at all, when the claim was initially pleaded: CPR 16.4(1)(c). No reason has been given for the failure to make the claim at the outset. On the other hand, no prejudice would be caused to the respondent. The claim for exemplary damages would not require any further factual investigation, and would not have put any trial date in jeopardy, and would not now cause any delay or substantial additional cost. Were it not for the appellant’s conduct in deliberately breaching the court’s order, it may have been appropriate to grant permission to amend.
    1. That said, for a claimant, exemplary damages are a windfall: Thompson v Commissioner of Police of the Metropolis [1998] QB 498 per Lord Woolf MR at 517B. Where a claimant is guilty of improper conduct then that can reduce or eliminate an award of exemplary damages where that contributed to the tortious behaviour: Thompson at 517D. That is not the case here, but the appellant can, nonetheless, justly be deprived of any prospect of an exemplary damages windfall in order to mark its conduct. I therefore refuse permission to amend to claim exemplary damages.
Conclusion on the appeal against the order of 28 November 2022
    1. I allow the appeal. I grant the appellant relief from sanctions (on terms that will be determined following any further submissions). I grant the appellant permission to amend the Particulars of Claim save that (a) permission to claim exemplary damages is refused, and (b) the reliance on the respondent’s claimed route is to be recast in the form I have directed.