In a judgment today in Henderson -v- Dorset Healthcare University Foundation NHS Trust  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 outlines the robust attitude the courts now take to late amendment.
- The court refused the claimant’s application to amend her claim so as to include a claim under the Human Rights Act.
- The Human Rights Act claim was five years out of time.
- The proposed amended case did not arise out of the same facts.
- In any event the court would not exercise its discretion to amend where the claimant had known of the requirement to amend for some time, the application was made very late and the trial would have to be adjourned.
- Even if the trial would not need to be adjourned the court would not have exercised its discretion.
“It is no longer the case, as it was at one stage in the history of procedural law, that the court will grant amendments provided the opposite party can be compensated in costs. The court no longer approaches the exercise of this discretion on the basis that the court’s task is merely to adjudicate between the rival parties, without regard to other considerations. The overriding objective requires a host of additional considerations to be brought into play. Moreover, when considering fairness between the parties the court takes a more searching look than it once did at the prejudice that a party will suffer, and whether that can truly be compensated in costs.”
“… the potential value to the claimant of the amendments, whatever it is, must be assessed in the overall context of this litigation, its past and its future conduct, and the overriding objective. The potential benefits are considerably outweighed by other competing considerations. These considerations would lead me to refuse permission even if the grant of permission would not require an adjournment.”
The case is an unusual one. The claimant killed her mother and pleaded guilty to manslaughter due to diminished responsibility. She was a patient at the time and ascribed responsibility for this to the defendant’s negligence. The defendant has admitted negligence and judgment been entered. A three week trial is due to start on the 3rd December 2016 dealing with the extent to which the claimant’s damages are barred by the rule of law which prevents a person from recovering damages for their own illegality.
THE APPLICATION TO AMEND
On the 14th November 2016 the claimant made an application (i) to amend the Particulars of Claim to pleaded claims under the Human Rights Act; (ii) for an extension of time in bringing those claims.
THE DECISION: IN BRIEF
The judge rejected the claimant’s application on a number of grounds.
(1) The claims had not been adequately pleaded.
(2) It was not appropriate to adjourn the application to allow the claims to be better formulated.
(3) & (4) The claims did not arise from “the same or substantially the same” facts and CPR 17.4 applied.
(5) If permission were granted it would require the adjournment of the trial of the preliminary issue.
(6) The court should not grant permission to amend as a matter of discretion.
THE JUDGMENT ON THE CPR 17.4 ISSUE
CPR 17.4 restricts the court’s power to grant permission to make amendments which add a “new claim” after the expiry of a limitation period. The court may grant permission to make such an amendment if, but only if, (to quote r 17.4(2)) “the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.” It is accepted on the claimant’s behalf that the human rights claims would be “new claims” as defined by the rule. It is not disputed that the primary limitation period under HRA s 7(5)(a) expired more than five years before the present application was issued. Mr Bowen does not invite the court to address on this application the as-yet-unpleaded claim for an extension of time. But he submits that the restrictions imposed by CPR 17.4 do not apply to his application.
(1) This rule applies where –
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under –
(i) the Limitation Act 19801;
(ii) the Foreign Limitation Periods Act 19842; or
(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.”
The limitation period under consideration here is not one under the Acts of 1980 or 1984. The argument runs that the HRA is not an “enactment which allows such an amendment, or under which such an amendment is allowed”, within r 17.4(1)(b)(iii). This submission would appear to run counter to the Court of Appeal decision in Parsons v George  EWCA Civ 912, which held that a fairly wide view should be taken of sub-rule (iii). But Mr Bowen refers to Eco Energy v First Secretary of State  EWCA Civ 1566 and San Vicente v Secretary of State for Communities and Local Government  EWCA Civ 817,  1 WLR 966, in which the Court of Appeal held that the six-week time limit provided for in s 288(3) of the Town and Country Planning Act 1990 for applying to quash a planning inspector’s decision was not a “period of limitation” within CPR 17.4. Mr Bowen suggests that these cases cast doubt on the approach adopted in Parsons v George.
I note that in neither Eco Energy nor San Vicente did the court dissent from the approach of Dyson LJ in Parsons v George. For my part, I am attracted by Mr Mylonas’ submission that these cases are to be distinguished on the basis that the provisions in question were silent on the question of whether the time limit provided for could be extended, and hence did not “allow such an amendment.” But this is an issue of some potential general importance. In view of my other conclusions it is not necessary to reach a conclusion, and my decision does not rest on that point.
The fourth issue: do the HRA claims arise out of the same facts or substantially the same facts?
“… only if the new claim arises out of the same facts or substantially the same facts as are already in issue on a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.” (Emphasis added.)”
The approach to be taken in determining whether a new claim meets this test is well-established. The approach is sufficiently summarised by Hobhouse LJ in Lloyd’s Bank plc v. Rogers  TLR 154: “The policy … was that, if factual issues were in any event going to be litigated between the parties, the parties should be able to rely upon any cause of action which substantially arises from those facts.” (These words referred to s 35 of the Limitation Act 1980, but in my view they are equally applicable to CPR 17.4). The assessment of whether one factual basis is the same or substantially the same as another involves a value judgment, having regard to this overall policy: see Ballinger v Mercer Ltd  EWCA Civ 996,  1 WLR 3597. This must be to some extent a matter of impression.
Adopting that approach, the first observation to make is the obvious one: the claim in negligence is admitted; the proposed human rights claims are and would be contested. Of course, the basis for the challenge to the human rights claims could be no more than a matter of legal analysis. But that is not the way the defendant puts its case. Secondly, if the new claims are the same as the existing it is hard to understand the need for the additional wording inserted into paragraph 19. Mr Bowen strove without success to persuade me that this did no more than reflect facts asserted in the letter of claim and admitted in the letter of response, and hence was unnecessary. The Particulars of Claim as they stand represent the pleader’s distillation of the factual matters considered necessary to set out in formal terms the case in negligence. It remains the fact that when framing what is on its face an exiguous amendment Mr Bowen thought it necessary to go further in order to state a case of violation of the claimant’s human rights.
Turning to more substantive points, I would accept the submission for the defendant, that the new claims would inevitably involve consideration of important new facts. The alleged failure to assess the claimant in the community following her relapse, and failure to recall her within 36 hours of the 23 August call by Ms Loyne give rise to significantly different factual issues from those which would have arisen in the negligence claim. In particular, the question of whether the alleged ill-treatment attained the minimum level of severity required to engage Article 3 would call for consideration of a range of circumstances, including the duration of the treatment, and the mental and physical effects to which the claimant was thereby exposed. The Article 8 claim, as explained by Mr Bowen, represents a fall-back case, in case the treatment was not severe enough to engage Article 3. So the same points apply.
THE JUDGMENT ON DISCRETION AND AMENDMENT
It is no longer the case, as it was at one stage in the history of procedural law, that the court will grant amendments provided the opposite party can be compensated in costs. The court no longer approaches the exercise of this discretion on the basis that the court’s task is merely to adjudicate between the rival parties, without regard to other considerations. The overriding objective requires a host of additional considerations to be brought into play. Moreover, when considering fairness between the parties the court takes a more searching look than it once did at the prejudice that a party will suffer, and whether that can truly be compensated in costs.
In this case, the need for an adjournment is in my view conclusive on the issue of discretion. There has been unreasonable delay. On the claimant’s best case more than a year has passed since the event that triggers the need for the application. Some of that might be justified by the intervention in the claimant’s solicitors’ practice. But not more than say 3 months. The application is made when the preliminary issue trial is imminent. An adjournment would inevitably lead to prejudice in the form of a waste of time and costs devoted to preparation. To some extent that could in principle be compensated by money. But the claimant is publicly funded. It is uncertain whether the wasted costs could be recouped. Even if they could, the broader considerations that are relevant would point firmly to the refusal of permission as matter of discretion.
The modern approach dates back at least to Worldwide Corp v GPT (CA, unreported 2 December 1998). Although the case pre-dated the CPR, it “nevertheless reflects the tenor of the CPR” (Civil Procedure n 17.3.7) and was cited with approval in Swain-Mason v Mills & Reeve LLP  EWCA Civ 14,  1 WLR 2735. Waller LJ said this: “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 … 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.”
Accordingly if, contrary to my conclusions, the draft amendment disclosed a properly pleaded case with a real prospect of success, the question would arise of why the new claims ought to be allowed to proceed, and delay the trial. Mr Bowen submitted that it was unfair to blame his client for the timing of the application. He argued that it would be wrong to treat a “one-liner” in a letter as “some implied representation by silence”. But the issue is not one of estoppel, and this is to turn matters on their head. The parties have a duty to co-operate to achieve the overriding objective. A party which has floated the idea that it may seek to amend its pleadings is duty bound to make a decision and get on with it. The onus is all the greater when the party has said, through their lawyers, that this is exactly what is proposed.
In the light of the exchange I have quoted at  above, and against the background I have outlined, it is very surprising to find the claimant suggesting that the onus lay on the defendant to take the initiative over whether human rights claims were or were not to be advanced. It is also hard to reconcile the exchange at the 5 May hearing with the position now adopted on the claimant’s side, that the human rights claims would and should have no bearing on the preliminary issues. Mr Bowen had, understandably, suggested the opposite. The onus of demonstrating why the grant of permission would be fair to all concerned lies on the applicant: see Worldwide.
Mr Bowen emphasises that the amendments are not put forward for some arid technical reason, to obtain a bare declaration of infringement. They are intended, he submits, to result in real and effective remedies. At the end of the argument I remain unclear, however, quite how it is suggested that might happen.
The explanation given by the claimant’s solicitor for the delay in putting forward the claim is that there was thought to be “no point pleading the HRA claim as it was thought that any sum awarded under the HRA would merely duplicate any award at common law.” It is common ground before me that, subject to a contrary decision by the Supreme Court, illegality is no answer to a human rights claim. The Court of Appeal so held in Al Hassan Daniel v Revenue & Customs  EWCA Civ 1443. I deduced that the claimant’s team regarded the HRA claims as a fall-back, in case they lose the illegality arguments. But when I asked for an explanation of how the claimant’s team thought those claims would affect the outcome in that event I got no satisfactory answer. It has conspicuously not been said that the HRA claims represent, if successful, a simple means of circumventing the illegality points raised in answer to the quantum claims in negligence.
Assuming, again, that I am wrong about that, the potential benefit of the new claims still should not be given more than its proper weight. I have expressed some views on their apparent merits. I cannot attribute any great importance to the impact they might have on the illegality/public policy points that are taken by the defendant. I view any potential benefits to the claimant as highly uncertain. Moreover, the potential value to the claimant of the amendments, whatever it is, must be assessed in the overall context of this litigation, its past and its future conduct, and the overriding objective. The potential benefits are considerably outweighed by other competing considerations. These considerations would lead me to refuse permission even if the grant of permission would not require an adjournment.
This is a claim which was not brought until the very end of the limitation period for negligence. That initial delay meant that the human rights claims were already well out of time at the outset. Mr Bowen may be right to say that this initial delay was excusable, given the criminal trial and the administrative investigation. Mr Mylonas did not argue strongly to the contrary. But having delayed to that extent it was the claimant’s responsibility to proceed expeditiously from then on. So far as the common law claim is concerned, no blame can be attached to her. But her approach to the human rights claims has been unreasonable.
These claims never played more than a secondary role, and were deliberately abandoned when liability at common law was conceded. I do not accept Mr Bowen’s invitation to conclude that the admission of liability was an oversight by the defendant, forgetting or not spotting the potential for illegality arguments. The realisation that it might be desirable to revive the human rights claim came to the claimant’s legal team belatedly. Once it came it was not acted on with reasonable promptness. There is no good reason why the claims should not have been brought much earlier.
In the event, the new claims were put forward six years after the event; five years out of time; unconscionably late in the proceedings; at a time when a trial was imminent; and when the defendant, to the knowledge of the claimant’s advisers, had been proceeding for many months on the basis that no human rights claims were being pursued. Even if no adjournment was required, the introduction of new claims at a late stage, in respect of which liability was denied, would be prejudicial in at least two ways. One is that it would throw the case out of kilter. The preliminary issues would no longer be decisive. There would remain the lurking possibility that the human rights claims could come back in, to snatch some form of victory even if illegality was held to defeat the bulk of the common law claims. Secondly, the defendant would have to address evidential issues relating to the human rights claims for the first time more than six years after the event. Asssessment of precisely how that would prejudice the defendant is difficult, but I am confident there would be genuine prejudice. Fairness, and the need to ensure proportionality and efficiency, all favoured the refusal of permission.
The factors I have considered in reaching these conclusions overlap, no doubt, with those that would fall for consideration if the court was considering an application under s 7(5)(b). But nobody has suggested that this is any reason for not addressing the issue of discretion, or for addressing it differently.
- Late amendment to pleadings should not have been allowed: claimant comes to grief on appeal.
- Late amendment of pleadings: a relative concept
- Late amendment allowed: trial date moved: a clinical negligence case.