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In the case of Hague Plant Limited v Hague & ors  EWCA Civ 1609  All ER (D) 134 (Dec), the Court of Appeal has dismissed the claimant appellant's appeal against a decision refusing it permission to amend its particulars of claim. In doing so, it agreed with the first instance judge's determination that the proposed amendments did not comply with CPR 16.4(1)(a), would be disproportionate and were late. The Court of Appeal offered some helpful guidance to practitioners in drafting their pleadings, including where they include a claim of dishonesty. The Court also upheld the first instance judge's determination that a particular claim, which had been abandoned earlier, could not be re-introduced and that the authenticity of a party's diaries could not be challenged in these proceedings.
This judgment is a useful reminder to parties of the purpose of pleadings, namely to help the court and the parties by including a concise statement of the facts on which the relevant party relies (CPR 16.4(1)(a)). They should 'clarify rather than obscure the issues'.
The Court of Appeal criticised some practitioners who, in recent years, had lost sight of that aim. 'Documents are drafted of interminable length and diffuseness and conspicuous lack of precision, which are often destined never to be referred to at the trial, absent some dispute as to whether a claim or defence is open to a party, being overtaken by the opening submissions. It is time, in this field, to get back to basics.'
Here the court described the 'sense of bewilderment and confusion experienced by a reader of the pleading as a whole. So far from being a concise statement of the primary facts relied upon in support of the claim, it comes across as a rambling narrative of the supposed twists and turns of the defendants' case about the matters in issue, serving no apparent purpose, and obscuring, rather than clarifying, the claimant's own case.'
Practical tip: where your proposed amended pleadings are criticised for their form and style (as opposed to their content in terms of the actual matters pleaded), consider whether you could apply for permission to re-plead those parts in a different way.
The judgment also offers practical guidance to those pleading dishonesty and who are therefore obliged to plead the facts on which the dishonesty is sought to be inferred. Here the Court agreed 'there are much better case management alternatives for satisfying the requirement for particularity in relation to allegations of dishonesty' that setting them out at length in the proposed amended Particulars of Claim. It suggested it could have been pleaded in a way which clarified, rather than obscured, the issues between the parties through, for example, 'points of claim focussed upon the alleged inference of dishonesty ... followed by points of defence and reply if necessary, in documents outside the Particulars of Claim, sufficiently anchored to them by the essence of the inference being concisely stated in the Particulars of Claim'.
The Court of Appeal upheld the first instance judge's determination that the proposed amendments were disproportionate.
Particularly since the introduction of the April 2013 Jackson Reforms, there is a need to 'allocate to those parties no more than a fair share of the court's limited resources'. The appellant had sought to argue the first instance judge was wrong to apply this 'Mitchell' principle to this case, which did not involve non-compliance with a rule, practice direction or order. However, the Court of Appeal was clear the principle of fair allocation of, already thinly spread, judicial time was not limited to cases of breach of the rules, practice directions and orders. Further, 'a primary reason for the judge's rejection of the draft pleading was that it conspicuously failed to comply with the fundamental rules of pleading, in particular the rule that particulars of claim should contain a concise statement of the facts relied upon for the purposes of clarifying the issues between the parties'.
The first instance judge had also been concerned about 'the further, duplicative and otherwise unnecessary work to which [the proposed amendments, if permitted,] would expose the defendants, and the knock-on consequences in terms of increasing the weight, cost and duration of the trial, and of further case management ahead of it'. In this regard the Court of Appeal 'emphatically' rejected any submission that the first instance judge was not entitled to come to this decision without a full analysis of the extra work which would be required. Briggs LJ considered 'a judge is ... perfectly entitled to apply both his general and particular experience to these questions without spelling out, in analytical detail, the reasons for his conclusions about the increased cost and burden, both to the parties and the court, threatened by a substantial proposed re-amendment. Furthermore, it strikes me as obvious that a quintupling in the length of Particulars of Claim, all of which would need to be pleaded to in Re-Re-Amended Defences, would threaten just such increases in work, length and cost, even if significant parts of the re-pleaded material could be found within Part 18 exchanges, existing Defences, or statements and transcripts in earlier proceedings'.
The Court of Appeal also upheld the first instance decision that the proposed amendments should not be permitted given their lateness. The distinction was drawn between proposed amendments being:
The Court of Appeal considered lateness in the context of proposed amendments to pleadings to be a relative, rather than absolute, concept. 'It all depends upon a careful review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of its consequences in terms of work wasted and consequential work to be done ... Lateness, used in this way, is a factor of almost infinitely variable weight, when striking the necessary balance in determining whether or not to permit amendments. The weight to give to this consideration in any particular instance is quintessentially a matter for the case management judge, not lightly to be interfered with on appeal unless shown to have been seriously flawed either by taking into account irrelevant matters, omitting relevant matters, or perversity'.
The Court of Appeal upheld the lower court's decision not to allow a de facto director claim, which had previously been abandoned, to be re-introduced to the proceedings.
In doing so, it found the first instance judge was right to draw the analogy with CPR 38.7, namely making a fresh claim after discontinuance, as both should be closely controlled by the court to avoid undermining 'the public interest in finality in litigation'.
However, rather than applying an 'exceptional circumstances' test, 'the real question for the judge was whether, having abandoned the ... claim ... a sufficient explanation was offered for its re-introduction to overcome the court's natural disinclination to permit a party to re-introduce a claim which it had after careful consideration decided to abandon'.
Here Briggs LJ found, if the first instance judge's 'slight misstatement of the relevant test means that this court must re-exercise that discretion, I would do so in the same way as he did, and for reasons substantially the same as those which he gave'.
The Court of Appeal upheld the first instance judge's ruling against a challenge to the authenticity of a party's diaries. One of its reasons for doing so was the manner in which the challenge was framed which it considered to be of a party 'ready to wound but afraid to strike' and a 'clear abuse of process'.
Court: Court of Appeal (Civil Division)
Judges: Lord Justice Briggs gave the leading judgment. Lord Justice Christopher Clarke and Lady Justice Sharp were in agreement
Date of judgment: 11 December 2014
Subscribers to LexisPSL Dispute Resolution can find more information on issues raised in this judgment:
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Virginia specialises in general domestic and international commercial litigation, arbitration and alternative dispute resolution.
Virginia trained, qualified and practiced with Pinsent Masons before moving to Marriott Harrison where she continued in practice for a further seven years.
In practice, Virginia acted in a variety of general commercial disputes covering areas including intellectual property, fraud, defamation, misrepresentation, breach of contract, debt recovery, breach of restrictive covenants and company and shareholders’ disputes.
Virginia is Head of Dispute Resolution at Lexis®PSL and, when not focused on the strategic development and operational requirements of the Dispute Resolution module, her content work focuses on case management and evidence in civil litigation. She also regularly contributes to the LexisNexis Dispute Resolution Blog.
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