THE CURRENT IMPORTANCE OF PLEADINGS 29: THE DUTIES INVOLVED WHEN PLEADING FRAUD: CLAIMANT’S ALLEGATIONS THAT WERE “MORE CONSISTENT WITH HONESTY” ON THE PART OF THE DEFENDANT
Here we are looking at a case where the claimant applied for permission to amend its Particulars so it could plead fraud. The application was refused. It is a reminder of the onerous duties on a party when proposing to…
COST BITES 269: WHAT COSTS ORDERS SHOULD BE MADE WHEN THE CLAIMANTS AVOID STRIKING OUT BY AMENDING THEIR PLEADINGS, BUT THE DEFENDANT OPPOSED THE APPLICATION TO AMEND? LITIGATION ON A “PAY AS YOU GO” BASIS
If ever a judgment showed how difficult litigation can be it is the costs decision we are looking at here. A defendant made an application to strike out a case on the grounds of inadequate pleadings. That application would, without…
THE CURRENT IMPORTANCE OF PLEADINGS 28: WHY THE PROPOSED AMENDED PARTICULARS DID NOT SAVE THE CLAIMANT: “MERE ASSERTION IS NOT SUFFICIENT”
We are continuing to examine the case looked at in the previous post. The claimant, faced with an application that the amended Particulars of Claim did not comply with the requirements of a court order, or the rules, made an…
THE CURRENT IMPORTANCE OF PLEADINGS 26: VERY LATE APPLICATION TO AMEND REFUSED: APPLICANTS, TO SOME EXTENT, HOIST ON THEIR OWN PETARD OF COMPLAINTS ABOUT THE TRIAL DATE BEING AT RISK…
Here we look at a case where the court refused thee applicants’ application for permission to amend its particulars of claim. There are many points of interest to litigators. The application was made too late and, in any event, did…
PROFESSIONAL NEGLIGENCE NEWS 4: WHO SHOULD PAY THE COSTS WHEN THE CLAIMANT INITIALLY SUED THE WRONG DEFENDANT BUT THE ACTION WAS NOT STRUCK OUT?
Litigators and litigants are always particularly interested in knowing what the costs consequences of a hearing was. We get an opportunity to consider this here, looking at the costs order of a judgment we have already considered. What should the…
THE CURRENT IMPORTANCE OF PLEADINGS 25: COURT REFUSES PERMISSION TO AMEND PARTICULARS: “THE PLEADED AVERMENT IS NOT PLAUSIBLE”
We have looked recently at the principles relating to amendment when the application to amend is made late. Here we look at a case where refusal to amend was refused because, among other things, the proposed amended case was not…
A QUICK POINT ABOUT AMENDING PLEADINGS: MAKE A FORMAL APPLICATION TO AMEND AND HAVE THE PROPOSED AMENDED PLEADINGS TO HAND: THE COURT OF APPEAL DECISION CONSIDERED
The post earlier today on the striking out of pleadings contained observations about the need for a party, seeking relief from sanctions on the grounds that it should be able to amend its pleadings, having those amended pleadings to hand…
CLAIMANT COMES TO GRIEF BECAUSE OF A WHOLLY SELF-IMPOSED PROBLEM: SUBSTITUTING A DEFENDANT WHEN THE ACTION HAS BEEN DISCONTINUED – LEADS TO MAJOR PROBLEMS
There have been some interesting cases on this site recently relating to the substitution of parties. However none of them are as peculiar as the case we are looking at here – where the claimant’s problems were primarily self-inflicted. The…
THE CURRENT IMPORTANCE OF PLEADINGS 21: SHOULD A PARTY BE GIVEN PERMISION TO AMEND AT A LATE STAGE? THE ISSUES CONSIDERED AND APPLIED
There are so many judgments concerning late applications to amend pleadings that, often, I decide not to write about them. There are applications to amend that are late, very late, very, very late or “door of the court” late. The…
PROFESSIONAL NEGLIGENCE NEWS (1): I’VE SUED THE WRONG DEFENDANT: CAN THE COURT DO ANYTHING TO HELP? FIRST OF (WHAT MAY WELL BE) A LONG RUNNING SERIES
There is much to be said for starting a new (and what may well be a long running) series looking at professional negligence cases, in particular the procedural and practical issues that arise. Firstly, if (as here) it is a…
DOES AN ELECTRONICALLY ISSUED AND SUBSEQUENTLY AMENDED CLAIM FORM REQUIRED RE-SEALING AND FILING PRIOR TO SERVICE? AN IMPORTANT ISSUE CONSIDERED
If a claimant serves a “amended” claim form that has not been resealed does that amount to good service? That issue was considered in the case we are considering today. The result is of considerable practical significance. However it pays…
ADDING AN ADDITIONAL PARTY TO A PERSONAL INJURY ACTION AFTER THE EXPIRY OF THE LIMITATION PERIOD: THE TEST IS THAT OF DESIRABILITY RATHER THAN NECESSITY
In Doroudvash v Zurich Insurance PLC [2025] EWCC 10 HHJ Holmes identified a route whereby the claimant in a personal injury case could join an additional defendant into an action after the expiry of the initial limitation period. This construction…
COST BITES 206: THE COURT WOULD NOT MAKE A SUBSTANTIAL ORDER FOR COSTS WHEN AN AMENDMENT TO A REPLY ABANDONS AN ALLEGATION OF FRAUD: (ALSO THE DANGERS OF PLEADING FRAUD WITHOUT SUBSTANTIVE EVIDENCE TO SUPPORT THIS)
In Packer v Packer [2025] EWHC 27 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) considered issues of costs after a claimant had amended a Reply to withdraw an allegation of fraud. The judge did not accept the…
COURT OF APPEAL FIND THAT CLAIMANT’S ACTION AGAINST “WRONG” DEFENDANT SHOULD NOT HAVE BEEN STRUCK OUT: PERMISSION TO AMEND THE CLAIM SHOULD HAVE BEEN GIVEN
I am grateful to barrister James Patience for sending me a copy of the Court of Appeal judgment in ELYSA ALTON and – POWSZECHNY ZAKLAD UBEZPIECZEN [2024] EWCA Civ 1435. The Court of Appeal upheld the decision of a Circuit…
STRIKING OUT AMENDED PLEADINGS, EXTENSIONS OF TIME AND THE ISSUE OF THE “IMPLIED SANCTION”: COURT OF APPEAL DECISION
For some time now the courts have been grappling with the notion of the “implied sanction” in relation to rules and orders. Some rules are subject to “implied sanctions” so that a failure to comply means that a party has…
“WHAT I CANNOT DO IS HEAR AN APPEAL AGAINST A RECITAL”: WORDING OF ORDER MEANS SLIP RULE HAS TO BE APPLIED
It appears to be a well known fact that family lawyers love recitals. (Not the musical kind – but as the preamble to any and all court orders). This issue caused problems in MA v Roux [2024] EWHC 1917 (Fam)…
COST BITES 170: IF YOU MAKE AN APPLICATION, HAVE IT HEARD BUT WITHDRAW IT PRIOR TO JUDGMENT THEN YOU ARE PAYING ALL THE COSTS (ALTHOUGH NOT NECESSARILY ON THE INDEMNITY BASIS)
In Hill v Touchlight Genetics Ltd & Ors [2024] EWHC 1801 Mrs Justice Joanna Smith considered issues relating to costs where the claimant abandoned her application to amend after the hearing, but prior to judgment. The judge held that the…
SERVICE OF THE CLAIM FORM – ERRORS AND PROBLEMS 6: YOU’RE SUING THE WRONG PARTY: THE LAW OF AMENDMENT AND MISTAKE CONSIDERED
This is the sixth time we have looked at the judgment in Occupiers of Samuel Garside House v Bellway Homes Ltd & Anor [2024] EWHC 1579 (KB). Technically speaking we are not looking at issues relating to service of the…
PARTIES SHOULD BE AWARE OF CONGESTION FACING LITIGANTS IN THE COURTS
The judgment of HHJ Pelling KC in ABT Auto Investments Ltd v Aapico Investment Pte Ltd & Ors [2022] EWHC 1791 (Comm) has recently become available on BAILII. The judge refused an application to amend that was heard one month…
COST BITES 116: YOU CAN’T AVOID PAYING THE COSTS OF AN APPLICATION AND APPEAL JUST BECAUSE THEY WEREN’T IN THE COSTS BUDGET…
We have seen some “interesting” submissions in relation to costs on this blog. However one of the most novel is the point taken by the Third Party in South Tees Development Corporation & Anor v PD Teesport Ltd & Anor…
AMENDMENT, COMPLIANCE WITH PEREMPTORY ORDERS AND THE DENTON CRITERIA: THERE IS NO HALFWAY HOUSE: COURT OF APPEAL DECISION
There are so many judgments dealing with the issue of late amendment that, as I have stated before, I often do not write about them – each being fact specific. However the Court of Appeal judgment in CNM Estates (Tolworth…
MAKE UNJUSTIFIED ALLEGATIONS IN A LETTER OF CLAIM AT YOUR PERIL – YOU CAN PAY THE COSTS: ON AN INDEMNITY BASIS
The judgment of Deputy Master Nurse in Stubbins Marketing Ltd & Ors v Rayner Essex LLP & Anor [2023] EWHC 515 (Ch) contains an important lesson for anyone drafting a letter of claim. The judge ordered that the claimants pay…
COST BITES 56: IF YOU DISCONTINUE AGAINST A DEFENDANT YOU HAVE TO PAY THE COSTS
In Lendlease Construction (Europe) Ltd v AECOM Ltd & Anor [2022] EWHC 2855 (TCC) Mrs Justice Joanna Smith held that a claimant that was discontinuing against one of the defendants in an action should pay the costs. There was no…
CLAIMANT SOUGHT TO AMEND NAME OF THE DEFENDANT: CLAIM STRUCK OUT: ANOTHER PERIL OF TRAVEL LITIGATION
I am grateful to barrister Katherine Howells for sending me a copy of the decision of Deputy District Judge Causton in Gregory -v- TUI Airways Ltd, a copy of that decision is available here Approved Judgment Gregory v TUI. …
COST BITES 40: NO ONE GETS THE COSTS OF AN AMENDMENT (WHICH WERE FAR TOO HIGH ANYWAY)
In Walter Hugh Merricks CBE v Mastercard Incorporated and Others [2022] CAT 52 the Competition Appeal Tribunal considered the principles relating to the costs of amendments to statements of case after a contested hearing. On the facts of this case…
APPLICATIONS TO AMEND PLEADINGS SHOULD NORMALLY BE SUPPORTED BY A DRAFT AND WITNESS EVIDENCE AS TO THE MERITS: A RIGHT ROYAL ISSUE
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…
A PARTY CANNOT SIMPLY ADD A PENAL NOTICE TO A COURT ORDER: IF THE COURT DOESN’T ORDER IT THEN IT SHOULD NOT BE IN THE ORDER
In Taray Brokering Ltd, Re [2022] EWHC 2958 (Ch) HH Pearce held it was not open to a party to place a penal notice on a court order when the court itself had not placed such a notice on the…
WHY A SHORT WITNESS STATEMENT CAN BE MORE COSTLY THAN A LONG ONE? CONDUCT, COSTS, PAYMENTS ON ACCOUNT: AN (UNSUCCESSFUL) APPLICATION TO AMEND THAT COULD COST £1 MILLION
In PJSC National Bank Trust & Anor v Mints & Ors [2022] EWHC 1132 (Comm) Mr Justice Foxton considered issues relating to payment of costs after the claimants had been unsuccessful in an application to amend the Particulars of Claim. …
LITIGATION BY STEALTH WILL NOT DO: COURT OF APPEAL OVERTURNS ORDER GRANTING DEFENDANT PERMISSION TO AMEND: CARDS SHOULD BE ON THE TABLE AND FACE UP
The judgment of the Court of Appeal in ABP Technology Ltd v Voyetra Turtle Beach Inc & Anor [2022] EWCA Civ 594 concerns a technical issue in relation to trade marks. However it also demonstrates a very powerful principle in…
APPLICATIONS TO AMEND: TOWER BLOCKS, FIRE SAFETY AND “FACTS” PLEADED IN THE DEFENCE: COURT OF APPEAL DECISION
In Mulalley & Co. Ltd v Martlet Homes Ltd [2022] EWCA Civ 32 the Court of Appeal upheld a decision that a claimant, seeking to amend its Particulars of Claim by referring to matters pleaded in the defence, was pleading…
WHEN A CLAIMANT TRIES TO USE A REPLY TO INTRODUCE A NEW CAUSE OF ACTION: PERMISSION TO AMEND REPLY REFUSED
In Powis Street Estates (No 3) Ltd v Wallace LLP & Anor [2021] EWHC 3269 (Ch) Deputy Master McQuail considered that parts of a Reply was an attempt to introduce a new cause of action. The claimant was not given…
RELIEF FROM SANCTIONS NOT GRANTED AFTER A NINE YEAR DELAY
In Francis v F Berndes Ltd & Ors [2021] EWHC 2350 (Ch) Deputy Master Linwood dismissed the claimant’s application to resurrect an application to amend which had been made nine years previously. THE CASE The claimant brought an action…
NEVER MIND THE… AMENDMENTS…. HERE’S THE SEX PISTOLS: JOHNNY ROTTEN WAS TOO FAR BEHIND THE BEAT…
In Jones & Anor v Lydon & Ors [2021] EWHC 2322 (Ch) Sir Anthony Mann refused an application for late amendment of the pleadings. A Note explaining the nature of the case cannot be used as a substitute for a…
DEFENDANTS’ APPLICATION TO RESILE FROM ADMISSIONS REFUSED: NO EVIDENCE THAT DEFENCE WAS NOT CAREFULLY CONSIDERED BY THE LEGAL ADVISERS WITH THE DEFENDANTS
The judgment of Chief Master Marsh in Financial Conduct Authority v Skinner & Ors [2019] EWHC 392 has only recently arrived on BAILLI. It is an example of the court refusing to allow a party to withdraw from admissions. The…
DEFENDANT NOT PERMITTED TO PLEAD FUNDAMENTAL DISHONESTY ON A SPECULATIVE OR CONTINGENT BASIS
In Mustard v Flower & Ors [2021] EWHC 846 (QB) Master Davison refused a defendant’s application to amend its defence to plead fundamental dishonesty on a “contingent” basis. The judgment deals with important issues as to how a defendant must…
GENERAL RESPONSE IN A REPLY DOES NOT AMOUNT TO AN ADMISSION: HIGH COURT DECISION
In Berkeley Square Holdings Ltd & Ors v Lancer Property Assets Management Ltd & Ors (Claimant amendment application) (Rev 1) [2021] EWHC 750 (Ch) Mr Robin Vos (sitting as a judge of the Chancery Division) rejected an argument that a…
DEFENDANT REQUIRES RELIEF FROM SANCTIONS WHEN THERE WAS £92 MILLION AT STAKE: DENTON CONSIDERED AND APPLIED
When I wrote earlier about the decision in Various Claimants v G4S Plc [2021] EWHC 524 (Ch) I noted that it required more than one post. Here we look at the judge’s decision in relation to relief from sanctions. Relief was…
YOU CANNOT USE A REPLY TO PLEAD MATTERS THAT SHOULD HAVE BEEN IN THE PARTICULARS OF CLAIM
About ten minutes ago I sent off the material for a webinar I am giving tomorrow on drafting statements of case. Inevitably, therefore, a new and relevant case arrived on BAILLI* [the material was subsequently amended to include this] . …
RULE CHANGES COMING INTO FORCE IN APRIL 2021(1): VULNERABLE WITNESSES AND THE OVERRIDING OBJECTIVE
There are some rule changes coming into force in April this year, introduced by the Civil Procedure (Amendment) Rules 2021, these come into force on the 6th April 2021. AMENDMENT TO THE OVERRIDING OBJECTIVE The new rules are referred to,…
CLAIMANTS SUED THE WRONG (NON-EXISTENT) DEFENDANT – AND THE LIMITATION PERIOD HAD EXPIRED: DON’T START BREAKING THE CROCKERY JUST YET
In The 52 Occupiers of the Ceramic Works v Bowmer & Kirkland Ltd & Anor [2021] EWHC 17 (TCC) District Judge Baldwin considered an application to substitute a defendant after the primary limitation period had expired. The judge, if anything,…
AMENDING YOUR CASE AND PAYING THE COSTS: JUDGE ORDERS CLAIMANT TO PAY £100,000 ON ACCOUNT OF COSTS
The judgment of Mr Justice Pepperall in R.G. Carter Projects Ltd v CUA Property Ltd [2020] EWHC 3417 (TCC) is interesting for a number of reasons. Firstly it encapsulates the principle that a party amending their pleadings must normally pay…
CORONAVIRUS AND CIVIL PROCEDURE: THE PRACTICE DIRECTION ENDS TOMORROW: REVIEW OF THE CASES
Practice Direction 51ZA which allows parties to extend time limits for up to 56 days comes to an end on the 30th October 2020. Unless there is a further rule change then parties can only agree extensions of 28 days. …
CLAIM FOR DAMAGES STRUCK OUT: APPLICATION TO AMEND REFUSED: CLAIMANT FAILED TO USE THEIR LOAF AS CLAIM IS SLICED…
The judgment of Mrs Justice Jefford in The Leicester Bakery (Holdings) Ltd v Ridge And Partners LLP [2020] EWHC 2430 (TCC) shows the necessity of being able to particularise a claim for damages. What it demonstrates is that, in claims…
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 [2020] 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…
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…
CLAIMANT NOT ALLOWED TO AMEND CLAIM, OR INTRODUCE NEW EXPERT, WHERE APPLICATION TO ADJOURN BECAUSE OF COVID ALLOWED
In Ludlow -v- Buckinghamshire Healthcare NHS Trust & BMI Healthcare Ltd [2020] EWHC 1720 (QB) Mr Justice Jay allowed an application for an adjournment on the grounds that a trial could not take place remotely. However, he refused the claimant’s…
APPLYING TO SUBSTITUTE A PARTY AFTER THE EXPIRY OF THE LIMITATION PERIOD: THE STATUTE AND THE RULES CONSIDERED
The rules relating to substituting a defendant after expiry of the limitation period are always a little intimidating. Particularly when trying to persuade a court to apply them. They were considered in detail in the judgment of Master Shuman in…
CORONAVIRUS LAW: COVID IS NOT GOING TO BE USED AS A REASON TO ALLOW A LATE AMENDMENT TO A DEFENCE
In the judgment today in Pearce v East and North Hertfordshire NHS Trust [2020] EWHC 1504 (QB) Mrs Justice Lambert considered an argument that the Coronavirus epidemic could play a part in the defendant’s application to amend its defence. …
PLEADING A DEFENCE PROPERLY: THE DIFFERENCE BETWEEN A DENIAL AND A NON-ADMISSION: HIGH COURT GOES BACK TO BASIC PRINCIPLES
There are some interesting observations about statements of case in the judgment of Mr Justice Warby in Aven & Ors v Orbis Business Intelligence Ltd [2020] EWHC 523 (QB). This case emphasises the difference between a non-admission and a denial…
JOINDER OF NEW PARTIES IN EXISTING PROCEEDINGS 2: THE PRINCIPLES (AND THE COSTS!)
We are looking again at the decision of HHJ Kimbell QC (sitting as a High Court judge) in Molavi v Hibbert & Ors [2020] EWHC, this time relating to the principles to be considered in relation to joinder of additional parties….
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