Summary of Recent Cases – Civil Procedure

The court should not take too relaxed an approach when considering late amendments

(1) Claire Swain-Mason, David Jonathan Berry & Neil Gordon Kirby (Executors of C J Swain, Deceased) (2) Claire Swain-Mason (3) Abbey Swain (4) Gemma Swain (5) Christa Swain v Mills & Reeve (A Firm), CA, 20/01/11

The Court of Appeal held that when giving permission to a Claimant to re-amend its particulars of claim at the start of a trial the trial judge had misdirected himself as to the correct approach to a late amendment and the precision required of pleadings. He had failed to follow the guidance in Worldwide Corp Ltd v GPT Ltd [1998] EWCA Civ 1894, a pre-CPR case which is not referred to within the notes in the White Book. The judge should have ensured that the required re-amendment was supported by evidence before he considered whether to allow the re-amendment. There was a heavy onus on a party seeking to raise a new and significantly different case upon the start of a trial. If a very late amendment was to be made, it was a matter of obligation on the party to ensure it satisfied the full requirements of a proper pleading. Permission to amend was granted on a false basis because the case represented by the amendment, as understood by the judge, was different from the case which the Claimant’s sought to run.

A Master was correct in refusing to set aside judgment or an Order that £40,000 be paid on account in relation to unpaid fees

Carter-Ruck (A Firm) v Shahrokh Mireskandari (2011), QBD, 21/01/11

A Master had been correct in refusing to set aside orders granting (i) permission for summary judgment; and (ii) £40,000 to be paid on account. Were the appeal to have summary judgment set aside succeed it would in effect put the matter of liability in issue once again, more than a year after the Claimant and the court had regarded it as resolved. In addition, further court proceedings consequential on the granting of the summary judgment had taken place. The application for relief from sanction was not made promptly. Though there had been a problem with the Defendant’s legal representation at the hearing, it did not prevent him, an experienced solicitor, from using his own legal knowledge and expertise to make an earlier decision whether or not to appeal. The Defendant had failed to provide satisfactory evidence for his decision not to initially appeal, and to support his various contentions. There had been a complete failure to provide any evidence to explain the delay which occurred, a persistent and unattractive feature of the litigation. The Defendant was seeking the indulgence of the court in his application to extend the time in which to pay. The evidence he had filed was plainly inadequate for the purposes of establishing that he had made genuine attempts to obtain the money to enable him to comply with the Master’s order. The Master was entitled to conclude that the Claimant was attempting to avoid payment of the fees or at the least, to postpone payment for as long as possible.

February 25, 2011 · Editorial Team · Comments Closed
Posted in: Cases