THE CURRENT IMPORTANCE OF PLEADINGS 63: WHEN ARE AMENDMENTS TO PLEADINGS “CONSEQUENTIAL” – DOES A PARTY HAVE “GENERAL RIGHT” TO INTRODUCE NEW MATTERS?
Here we continue with our examination of attempts to amend pleadings. We are looking at the same case as the previous post but a different judgment from a different judge. Here the claimant amended its Particulars of Claim and the…
THE CURRENT IMPORTANCE OF PLEADINGS 62: REFERRING TO AN EXTERNAL REPORT IN A DEFENCE MAY NOT BE HELPFUL: “A PLEADING NEEDS TO BE UNAMBIGUOUS AND COHERENT”
Today we are going to look in detail at attempts to amend a defence. There is much to learn about pleadings, pleading defences and applications to amend. We start off with an application made last year. However as we shall…
THE CURRENT IMPORTANCE OF PLEADINGS 60: FAILING TO PLEAD A CLAIM FOR “LOSS OF CHANCE” LEADS TO TRIAL BEING RESTRICTED TO LIABILITY (AND THE CLAIMANT’S FACING RESPONSIBILITY FOR ADDITIONAL COSTS)
Here we are looking at a failure to plead the claimant’s case as to damages fully. The claimant wanted to advance a claim for “loss of chance” in addition to seeking damages on the balance of probability. The judge rejected…
THE CURRENT IMPORTANCE OF PLEADINGS 59: IT IS TOO LATE TO RAISE THIS NOW: CLAIMANT ALLOWED TO RELY ON AMENDED PLEADINGS EVEN THOUGH THEY DID NOT HAVE PERMISSION TO DO SO
Here we have a case where the claimant amended his pleading extensively, going beyond the limited permission that the court had granted. The defendants noted that and objected to it, however they did nothing about it for 10 months. At…
THE CURRENT IMPORTANCE OF PLEADINGS 51: TOO LATE TO AMEND A REPLY WHICH WAS INADEQUATELY PARTICULARISED IN ANY EVENT
There has been a recent flurry in cases about late amendment and also about Replies. Both issues are considered her. The claimant applied to amend its Reply five weeks before trial. The revised Reply attempted to put forward a “counterfactual”…
THE CURRENT IMPORTANCE OF PLEADINGS 50: A CHANGE OF COUNSEL IS NOT A GOOD REASON TO PERMIT AMENDED PLEADINGS(AKA WHY FAMILY LAWYERS NEED TO READ THIS SERIES…)
I cannot recall dealing with a case in this series which involved the Family Courts. However we have a detailed exposition and consideration of the relevant principles relating to late amendment here. One factor is the absence of a good…
WHEN A DAY LONG APPLICATION FOR PERMISSION TO AMEND INCURS COSTS OF OVER £1.3 MILLION (AND STILL THE BUNDLES AREN’T QUITE RIGHT…)
There are some interesting observations here about the strategy a party should adopt when facing an application to amend. Such an application is not a “mini trial”. It is clear from this case that substantial costs can be incurred in…
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…
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…
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…
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…
PERSONAL INJURY POINTS 2: CONTRIBUTORY NEGLIGENCE, CAUSATION, EVIDENCE AND FAILURE TO WEAR A CYCLE HELMET (SOMETHING ABOUT PLEADINGS TOO)
In the previous post in this series I mentioned that there was a backlog. I didn’t anticipate that I would be looking at a case that was decided in 2009. However the judgment has recently arrived on BAILLI and it…
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…
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…
STATEMENTS OF CASE AND AMENDMENTS: A ROLLERCOASTER OF A CASE: ISSUE OF AMENDMENT REMITTED TO COUNTY COURT
It is too easy, in fact far too easy, to describe the case of Idziak v Merlin Entertainments PLC [2024] EWHC 1351 (KB) as a “rollercoaster”. It involves the claimant being injured on a fairground ride. The claimant succeeded at…
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…
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…
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…
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…
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…
POINTS HAVE TO BE PLEADED: APPLICATION TO AMEND AT TRIAL CORRECTLY DISALLOWED: PLEADINGS ARE THERE TO ENSURE THAT THE ESSENTIAL ELEMENT OF EACH PARTY’S CASE ARE KNOWN
In Kensington Mortgage Company Ltd v Mallon & Ors [2019] EWHC 2512 (Ch) Sir Gerald Barling, sitting as a Judge of the High Court, dismissed an appeal against a judge’s refusal to consider a point that was not pleaded. The…
FRESH EYES NOT A GOOD REASON FOR PERMISSION TO AMEND: COURT REFUSED CLAIMANT’S LATE APPLICATION TO RE-CAST ITS CASE
In Donovan & Anor v Grainmarket Asset Management LLP [2019] EWHC 1023 (QB) Martin Griffiths QC, sitting as a High Court judge, disallowed a late application to amend. It is another example of an application being made shortly before trial,…
“PLEADINGS THAT ARE OF SUCH DISPROPORTIONATE LENGTH AND DENSITY”: “THE CLAIM BECAME IMPENETRABLE AND UNNECESSARILY EXPENSIVE TO DEAL WITH”
In Galazi& Anor v Christoforou & Ors [2019] EWHC 670 (Ch) Chief Master Marsh considered the costs consequences of amendment and the effective discontinuance of certain causes of action. There are two particular aspects of the judgment of general interest. Firstly…
PERMISSION TO AMEND GIVEN TO PLEAD COSTS PAID IN PREVIOUS ACTION AS DAMAGES: GAMBLING ON GETTING A SECOND CHANCE
In Playboy Club London Ltd v Banca Nazionale Del Lavora SPA [2019] EWHC 303 (Comm) the High Court granted the claimant permission to amend to include, as a claim for damages, the costs of a previous action. “I have come to…
JUDGE ALLOWS CLAIMANT TO RELY ON MATTERS THAT TOOK PLACE AFTER TRIAL: VERY, VERY LATE AMENDMENT ALLOWED
There are several interesting procedural issues that arise in the judgment of HHJ Halliwell (sitting as a High Court Judge) in Currie v Thornley & Anor [2019] EWHC. 172 (Ch). One of which is the judge’s decision to allow the claimant…
LATE APPLICATION TO AMEND DEFENCE RIGHTFULLY REFUSED: LATE APPLICATION TO AMEND NOTICE OF APPEAL ALSO GOT THE BARNSLEY CHOP
In First Tower Trustees Ltd & Anor v CDS (Superstores International) Ltd [2018] EWCA Civ 1396 the Court of Appeal upheld a decision by the trial judge to refuse a late amendment to the defence. An application to amend the Notice…
NO SPECIAL FORM OF “MEDIATION PRIVILEGE”: MEDIATION AGREEMENT DID NOT OVERRIDE GENERAL PRINCIPLES PREVENTING WITHOUT PREJUDICE COMMUNICATION BEING USED A A FORM OF BLACKMAIL
The decision of Mrs Justice Rose in Interactive Technology Corporation Ltd v Ferster & Ors [2015] EWHC 3895 (Ch) considers the issue of “mediation privilege”. This is not a new case (the judgment was dated 21st December 2015) however it has…
AMENDMENT, PLEADINGS, NEARLY OPPRESSIVE CONDUCT AND PROLIX WITNESS STATEMENTS: MASTER ISSUES AN EARLY WARNING
In Williers -v Joyce [2017] EWHC 1225 (Ch) Chief Master Marsh issued a number of warnings in relation to procedural issues. Amendment, conduct, pleadings, disclosure and witness statements are considered. (The judgment also contains a full copy of the re-amended…
A CLAIMANT CAN SUE AN UNNAMED DRIVER (AND THE INSURER HAS TO PAY): COURT OF APPEAL DECISION TODAY
NB THIS DECISION WAS OVERTURNED BY THE SUPREME COURT IN Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 t In Cameron -v- Hussain [2017] EWCA Civ 366 the Court of Appeal (by a majority) considered the question whether a claimant…
AMENDMENT TO ADD NEW ISSUES THAT HAVE ARISEN SINCE ISSUE: CONSIDER THE OVERRIDING OBJECTIVE AND NOT THE RSC
I said that there would be two posts about the judgment of Master Marsh in The Football Association Premier League Limited -v- O’Donovan [2017] EWHC 152 (Ch). The first looked at the lifting of the automatic stay. Here we look…
LATE AMENDMENT OF PARTICULARS OF CLAIM NOT PERMITTED: HIGH COURT DECISION TODAY
In a judgment today in Henderson -v- Dorset Healthcare University Foundation NHS Trust [2016] EWHC 3032 (QB) Mr Justice Warby refused a claimant’s application to amend the Particulars of Claim. The judgment covers a number of points. In particular it…
PAYING THE CORRECT COURT FEE AND LIMITATION: HIGH COURT DECISION CONSIDERING THE RELEVANT PRINCIPLES
One decision that has led to interlocutory skirmishing and opportunistic applications is Lewis v Ward Hadaway [2016] 4 WLR 6, [2015] EWHC 3503 (Ch) and the consequences of failing to pay the correct court fee on issue. This has left many…
PROVING THINGS 32: DAMAGES CLAIM STRUCK OUT AS UNSUSTAINABLE; APPLICATION TO AMEND REFUSED.
In Guney -v- Kingsley Napley [2016] EWHC 2349 (QB) Mrs Justice McGowan struck out part of the claimant’s claim for damages and refused the claimant permission to amend to plead new heads of damage. It could serve as an object…
PAYING THE "CORRECT" COURT FEE AND AMENDMENT: AN IMPORTANT CASE REVIEWING THE PRINCIPLES
This blog has looked several times* at the cases and principles that have followed the decision in Lewis -v- Ward Hadaway [2015] EWHC 3503 (Ch). Applications around allegations of failure to pay the correct court fee have become a new battleground…
FAILURES IN DISCLOSURE AND WITNESS EVIDENCE YET SUCCESSFUL ON APPEAL
The decision of the Court of Appeal in Sobrany -v- UAB Transtira [2016] EWCA Civ 28 gives rise to a few interesting procedural points. It is worth remarking, however, that many of the difficulties arose because of failures by the…
LATE AMENDMENT TO PLEADINGS SHOULD NOT HAVE BEEN ALLOWED: CLAIMANT COMES TO GRIEF ON APPEAL
In Ali -v- Siddique [2015] EWCA Civ 1258 the Court of Appeal overturned a decision granting permission to amend the Particulars of Claim. Consequently the defendant’s appeal was allowed and the claimant’s action failed. KEY POINTS There is a heavy…
LATE AMENDMENT OF PLEADINGS: A RELATIVE CONCEPT: HAGUE PLANT APPLIED
When is an application to amend pleadings made late, more particularly too late? This is something we have looked at several times before. It was considered by H.H. Judge Keyser Q.C. in Hamizay Limited -v- Robin Swailes [2015] EWHC B14(Ch)….
VERY, VERY LATE APPLICATION TO AMEND PARTICULARS OF CLAIM ALLOWED
In MacLeod -v- Mears [2014] EWHC 3140 QB Mr Justice Hamblen allowed the claimant to amend the particulars of claim very late, after a trial in fact. THE FACTS The claimant brought an action alleging a failure to pay a…
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