LATE APPLICATIONS TO AMEND & WITNESS STATEMENTS DELIBERATELY NOT SERVED: THIS DOESN’T END WELL FOR THE DEFAULTING PARTY

In Birch -v- Beccanor Limited & Dixon [2016] EWHC 265 (Ch) Mr Justice Norris refused an application for late amendment. He also refused an application to adjourn in circumstances where the defendant had deliberately served witness evidence late.

KEY POINTS

The Court disallowed:

  • The defendants’ application to adjourn the trial date.
  • The defendant’s application to amend the defence and plead a counterclaim.
  • The defendant’s application to serve witness statements out of time.

PRACTICE POINTS

  • There is an important point here about having to instruct whoever is responsible for listing on the dates of availability of witnesses.
  • More importantly, however, this case emphasises the absolute folly of deliberately deciding not to serve witness statements when a court order has been made ordering service.

THE CASE

The claimant was suing for the unpaid sums due following the sale of a business. The defendants admitted breach of the obligation to pay but pleaded (vague) assertions of breach of warranty. The defence did not plead setoff nor did it make a counterclaim.

DIRECTIONS

Witness statements were to be simultaneously exchanged on the 6th November 2015. Two minutes before the time for exchanging the defendants stated that they would not be exchanging. No prospective, or retrospective, application for an extension of time was made.

Trial listing took place by liaison between counsel’s clerks. However the defendants did not give dates of witness unavailability to the clerk.  The trial was listed for three days starting 17th February 2016.

THE DEFENDANTS’ ACTIONS

  1. Accordingly, when the Defendants decided not to exchange witness statements on 6th November 2015 they did so knowing that the time before trial was extremely limited. It is explained in the witness statement of Mr. Dixon that what was going on was that they were trying to assemble evidence in order to allege deceit and fraud against Mr. Birch. This process continued even when it became apparent on 23rd October 2015 that a trial date had been fixed for a date for which the defendant or more accurately one of the Defendants’ witnesses was not available. Mr. Dixon says that he had decided (a) not to apply for an extension of time within which to serve his witness statements (as he had been required to do by paragraph 4 of District Judge Obodai’s order) (b) not to apply to vacate the trial which he knew had been fixed for a date that one of his witnesses could not manage because of the lateness of his own solicitor’s provision of dates and (c) not to apply to amend the Defence because he wanted to make a composite application.
  2. This “composite application” was eventually issued on 5th January 2016, although it was not served on the claimant’s solicitors until 4:30 pm on 14th January 2016, one month before the first day of the trial.”

THE DEFENDANTS’ APPLICATIONS

The defendants made three applications:

  • To vacate the trial date.
  • To amend the defence so as to bring a counterclaim.
  • To serve witness evidence late.

THE APPLICATION TO VACATE THE TRIAL DATE

  1. The application to vacate the trial date a month before the commencement of a trial is not one that I regard as meritorious. The present listing came about because of (a) the failure of the Defendants’ solicitors to attempt to comply with the order of the Court until nine minutes before the expiration of the deadline and (b) their failure to inform their own Counsel and his clerk of the dates of availability or to limit his authority to reach agreement with his opposite number until they had done so. They discovered the consequences of that failure on 23rd October but did not then apply to vacate the trial at a time when a new trial date could be fixed for the convenience of all the parties very near to the original date: they waited until 4th January 2016. On its own the application to vacate the trial lacks merit and should be dismissed.

THE APPLICATION TO AMEND

  1. The application to amend the Defence and Counterclaim is one which it is common ground is made “late” in the sense that its inevitable consequence will be to disrupt a fixed trial. I have been taken to the authoritative statement of principle by Lloyd LJ in Swain-Mason [2011] EWCA Civ 14 as to how the discretion to permit amendment under CPR 17.3 should be exercised in accordance with the overriding objective. It inevitably involves a balancing exercise. The approach to the balancing exercise was conveniently summarised by Carr J in paragraph 38(b) of her judgment in Qua Sue Ling v. Goldman Sachs [2015] EWHC 759 in these terms:
“Where a very late application to amend is made the correct approach is not that amendments ought in general to be allowed so that the real dispute between the parties can be adjudicated upon, rather a heavy burden lies on a party seeking a very late amendment to show the strength of the new case but by justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission”.
She went on to observe in paragraph 38(e) that gone are the days that it was sufficient for an amending party to argue that there was no prejudice that could not be compensated for in costs and that nowadays other prejudice is more readily given weight. She also pointed out (drawing on the “relief from sanction” provisions under CPR 3.9 and the cases decided under it) that a much stricter view is taken of non-compliance both with the rules and with orders of the Court. She said:
“The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately and that the courts enable them to do so”.
  1. In the instant case the amendments reflect the arguments that were advanced in correspondence as long ago as June 2014 on the basis of the material which by then had been garnered from as early as January 2013. Indeed, the language of the proposed amendments reflects the language of the letters then written. So what new has happened that would justify an amendment now being pleaded in respect of something that could have been incorporated in almost exactly the pleaded terms in the original pleading?
  2. The answer given is that in December 2014 Mr. Fletcher’s company went into administration and Mr. Dixon managed to get some documents from the administrators relating to the amount of waste that Mr. Fletcher had collected from BBE. This documentary material Mr. Dixon says supports to a significant degree the volume of waste disposed of for cash. In particular, he relies on some documents immediately preceding the completion date of the SPA, which suggest that between March and August 2011 some 57 drums of non-ferrous specialist waste were collected by Mr. Fletcher from BBE. This, says Mr. Dixon, dramatically illustrates how Mr. Birch cannot be right when he says the amount of waste dealt with for cash in this way was minimal in amount and trivial in value.
  3. This recent material is evidence which could have been deployed in support of a case that could itself have been pleaded on the basis of the material that Mr. Dixon already had deriving from (a) his dealings with Mr. Finkhill (b) his telephone conversation with Mr. Fletcher, (c) the results of his audit and (d) the advice he had received relating to what extrapolations might have been made from the period during which he himself kept records in relation to BBE’s operations. That is the nature of the amendment which it is now proposed to make.
  4. In Innovator 1 [2011] EWHC 3221 Hamblen J suggested that the balancing exercise to accord with the principles applicable might be considered under four headings: (a) to look at the history of the amendment; (b) to look at the prejudice to the Defendant if the amendment is refused; (c) to look at the prejudice to the innocent party if the amendment is allowed; and (d) to look at the clarity of the proposed amendment. Nothing arises under the last head. The proposed amendment is clear, indeed, it has been clear since about June 2014.
  5. So far as the history of the amendment is concerned, as I have indicated, this is a plea which could have been advanced in the original Defence and if the original Defence had been settled by counsel undoubtedly would have been. It is an amendment which could have been made prior to the September 2015 CMC but was not made. It was an amendment which could have been applied for shortly after the CMC when District Judge Obodai pointed out that the absence of a form of pleading made it impossible to consider the application. It was an amendment that could have been made at any stage well before 4th January 2016. This is a very late amendment and the application to make it is itself not prompt. That in short is the history of the amendment.
  6. So far as prejudice to the Defendants is concerned the matter lies thus. Mr. Vickers submits, though Mr. Pickering does not concede, that if this amendment is not allowed now then what Beccanor can do is commence proceedings to set aside the judgment on the basis of fraud or, alternatively, seek a judgment against Mr. Birch in new proceedings for breach of warranty and for fraud uninhibited by the doctrine in Henderson and Henderson (1843) 3 Hare 3 because the plea was not advanced in this case: and since that course is open I should spare the parties the expense and delay of further proceedings and reshape this action. If that is the submission made then the prejudice to Beccanor and Mr. Dixon, (principally Beccanor because it is Beccanor that has the direct right of action on the warranties) is that it has to commence its own proceedings rather than tag along with a counterclaim in the present proceedings. That is not an outcome which if Mr. Vickers is right bars Beccanor from bringing this claim at all.
  7. So far as prejudice to Mr. Birch if the amendment is allowed, this is the prejudice which Lloyd LJ referred to in the vernacular in his judgment in Swain as “being mucked about”. Why should his case (properly conducted in accordance with the orders of the Court) be delayed by parties who have had many months to consider how to put their case (including in response to requests to clarify their position) but now have changed their minds? More significantly any amendment requires Mr. Birch effectively to prepare to meet a new case (possibly including expert evidence) not hitherto advanced save in correspondence some while ago. Mr. Dixon has chosen the time at which to launch his counter-attack and has “all his ducks in a row”, to adopt another vernacular expression, Mr. Birch has to start assembling his material in answer to this claim. The inevitable consequence of allowing the amendment will be to lose the trial date. He will lose his expected judgment for payment of the sums outstanding, a claim to which there is no substantial defence at present advanced.
  8. In my judgment, undertaking the relevant balancing exercise in light of the principles to which I have adverted by reference to the judgment of Carr J, I am not satisfied that Beccanor and Mr. Dixon have discharged the heavy onus upon them of showing why it is just to postpone the trial of what is apparently a straightforward action in order to permit them to bring a claim in breach of warranty and deceit which could have been proceeded with shortly after it was advanced in correspondence in June 2014. In the circumstances I do not think it right to grant leave to amend. That conclusion aligns with the conclusion I had reached on the propriety of vacating the trial date.

LATE SERVICE OF WITNESS EVIDENCE

  1. This then leave the questions of witness statements which have been deliberately served out of time. The relevant principles are found in CPR 3.9 and the guidance given in Denton [2014] EWCA Civ 906. It is common ground that failure to serve any witness statement is a serious breach. No real explanation is proffered as to why the Court’s order was broken in the first place. Mr. Dixon’s original witness statement in this application indeed provided no explanation at all. His supplemental witness statement (only given on 28th January 2016) essentially advances the case that it was because he was minded to make a composite application that he decided not to comply with the Court’s order regarding evidence.
  2. Mr. Pickering made three submissions: First, he invited me to note that the decision to breach the Court order was deliberate and was deliberately not followed by an application for relief from sanctions. Second, he submitted that the breach of the Court order was pointless, because statements from Mr. Dixon and Mr. Hill could have been served even if they had to be supplemented later by further material, and would have obviated the need for one limb of the “composite application”. The witness statements could of course only address the pleaded issues and much of their content was not really germane to that; but the witness statements could nonetheless have been served. Thirdly, he submitted that if at the time when the witness statements were due for service it was known that Mr. Hill was not going to be available to give evidence orally then it was all the more important to serve the written material. So doing would lay the ground for any necessary steps for the admission of hearsay evidence from Mr Hillor and apprise the Claimant of the material with which he would have to deal if the Defence were amended or the trial vacated, giving him a fair trial chance to deal with those matters. Each of these seems to me to be a significant point to be weighed in the balance. This was a conscious and inexplicable breach of the order of the Court.
  3. If CPR 3.9 and the particular emphasis it now contains has any meaning, in my judgment this is the sort of case to which it must apply. Of course the rules must always yield to the circumstances of the case and the overall justice of the situation. But in my judgment refusing relief from sanction does not produce an unjust outcome. It simply means that the trial will be confined to such issues (though I cannot see any of substance), as arise on the Defendants’ pleaded case. It means that Beccanor and Mr. Dixon, if he is to join in a case in deceit, must start their action for fraud, breach of warranty or deceit as a freestanding claim (if Mr. Vickers is right that that course is still open). That is not an unjust outcome for them: and it is just towards the Claimant and other litigants.
  4. Before reaching this conclusion I had examined the possibility of bringing this case back into the lists within the original trial window (to deal with the claim and a truncated trial of some issues in the intended Amended Defence and Counterclaim): but the amount of work to be done and the availability of the Claimant’s legal team precludes this course.

RELATED POSTS

On late amendment

Late services of witness evidence

 

Trial date

 

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