AMENDING PLEADINGS LATE 2: ANOTHER MATTER OF INTEREST? (AND ANOTHER LATE WITNESS STATEMENT)

An earlier post looked at an application where a bank successfully opposed an application to amend pleadings. In Monks -v- National Westminster Bank [2015] EWHC 1172 (Ch) the defendant bank made a late application to amend its defence. This was refused by HH Judge Simon Baker QC.

KEY POINT

“It is utterly inappropriate to come to a court a matter of days before the trial and seek to adduce substantial further primary evidence-in-chief and to amend a pleaded case without even one word of explanation as to why that amendment and why that further evidence is sought to be introduced at such a late stage and why – if such be the case – it could not have been put before the court much earlier.”

THE CASE

Proceedings were issued in March 2013. A number of case management hearings were made and the case was listed for trial three days after the date the application was heard.

  1. This is an application by National Westminster Bank Plc in proceedings begun in March 2013, that is more than two years ago. The application was issued by this court either on the eve of, or effectively shortly after, the Easter weekend this year, so either on 2 April or on 7 April 2015. The action is listed for trial next week, 21 to 24 April 2015. The application is for an order (1) permitting NatWest to amend its defence, which is said to be dated 20 March 2013 (but is in fact dated 20 May 2013) in the form of a draft amended defence attached to the application, and (2) permitting NatWest to serve and rely at trial on a witness statement of a Mr. Jonathan Logan, which statement is dated
    2 April 2015; and (3) if need be, granting for relief from sanctions. The evidence of Mr. Logan is a statement running to 27 pages to which there is an exhibit running to more than 220 pages; the exhibit comprises largely – if not entirely – undisclosed documents (including a 50 page schedule prepared by Mr Logan) which NatWest wishes to add to the trial documents. Mr Logan is not, at present, amongst the witnesses who have made statements for and are to be called by NatWest.
  2. In the evidence filed in support of the application there is not even one word to explain why the evidence of Mr. Logan is prepared late, could not have been prepared earlier, and ought now, at this very late stage, to be permitted to be adduced at trial; nor is there even one word to explain why the defence, which has stood for almost two years, and has been the subject of a detailed reply, should be amended only 3 working days before the trial begins.

AMENDING PLEADINGS: THE LAW

  1. In relation to the law, Miss Nesterchuk helpfully refers me to the well known and relatively recent Court of Appeal decision in Swain Mason v. Mills & Reeve LLP [2011] EWCA Civ 14, and in particular to the judgment of Lloyd LJ at paragraphs 70, 72 and 104.
  2. At paragraph 70, there is the citation by Lloyd LJ of an extract from
    the judgment of Waller LJ in Worldwide Corporation Ltd v. GPT Ltd, a 1998 case, so before the CPR but held by the Court of Appeal to be relevant to the modern procedural era. The passage cited from the judgment of Waller LJ is as follows :

Where a party has had many months to consider how he wants to put his case and where it is not by virtue of some new factor appearing from some disclosure only recently made, why, one asks rhetorically, should he be entitled to cause the trial to be delayed so far as his opponent is concerned and why should he be entitled to cause inconvenience to other litigants? The only answer which can be given and which, [counsel] for Worldwide has suggested, applies in the instant case is that without the amendment
a serious injustice may be done because the new case is the only way the case can be argued, and it raises the true issue between the parties which justice requires should be decided. We accept that at the end of the day a balance has to be struck. The court is concerned with doing justice, but justice to all litigants, and thus where a last minute amendment is sought with the consequences indicated, the onus will be a heavy one on the amending party to show the strength of the new case and why justice both to him, his opponent and other litigants requires him to be able to pursue it.”

At Paragraph 72, Lloyd LJ observes that :

” … I do accept that the court is and should be less ready to allow a very late amendment than it used to be in former times, and that a heavy onus lies on a party seeking to make a very late amendment to justify it, as regards his own position, that of the other parties to the litigation, and that of other litigants in other cases before the court.

Then at paragraph 104, four considerations are identified by Lloyd LJ :

“The matters which need to be considered for this purpose include the terms of the amendment, the previous history as regards amendment, including the sequence of events [at the time in that case] which led to the first amendments, the absence of any evidence explaining why the re-amendment was sought to be made so very late, and the various factors relevant to prejudice to each side.”

THE JUDGES CONCLUSION

The judge held that there was no explanation for the delay.

  1. Other elements of prejudice to Mr. Monks include, in his submission, the effect on him personally. He says that an adjournment will deprive him of the opportunity to try and keep his home because his home is to be sold or arrangements are to be made for sale or raising alternative finance within eleven months (ie before the term of his mortgages with NatWest expire), and what he really needs is a decision on these issues now in order that he may work out what his final position try and raise money in good time.
  2. Mr Monks submits that the new case is an ambush which has been worked on for months and he observes that he could have been but was not given any prior warning. He says that he would be disadvantaged if he is not given a reasonable opportunity to respond if NatWest is permitted to run a new or revised case, and he submits NatWest has no one but itself to blame for its failure either to do the work that Mr. Logan has now done at a much earlier stage, or, if it is the case that its disclosure was inadequate, to look through its own documents contemporaneously with the preparation of its original case.
  3. Miss Nesterchuk makes the submission that many of the documents ought to be on Mr. Monks’ disclosure list as well. That of course turns on the question of whether the documents that are disclosed now were discloseable under standard disclosure in relation to the issues that were joined on the pleaded case as it stood in the middle of 2013. I am simply not in a position to evaluate that one way or the other at this urgently convened pre-trial hearing.
  4. That summary of the procedural chronology, the scope of the proposed order, and the submissions that have been made to me lead me unhesitatingly to the conclusion that this very late application simply should not have been made. It is utterly inappropriate to come to a court a matter of days before the trial and seek to adduce substantial further primary evidence-in-chief and to amend a pleaded case without even one word of explanation as to why that amendment and why that further evidence is sought to be introduced at such a late stage and why – if such be the case – it could not have been put before the court much earlier.
  5. It is inconceivable that a litigant in person should be expected to deal with a 27 page witness statement, over 220 pages of additional documentation (even if much or even all of it is common to the parties from their historic dealings over the course of years ago), and a revised case without there being an inevitable adjournment in order that there can be a fair response to this material and equality of opportunity to prepare for trial.
  6. Further, I do not accept that necessitating an adjournment is the only measure of prejudice to the administration of justice or other litigants.
  7. The prejudice to both the opposing party, Mr Monks, and to the administration of justice and litigants generally is so overwhelming that for those reasons alone this application must fail and be dismissed.”

RELATED POSTS

STATEMENTS OF CASE

There are some posts from the “Mitchell era” which may still be of relevance.

ON THE LATE SERVICE OF WITNESS STATEMENTS

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