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Amending particulars of claim - duty of care
16 December 2015
Lord Justice Moore-Bick, Lord Justice Lewison & Lords Justice Kitchin
The appeal concerned the first instance recorder’s decision to allow an amendment to the particulars of claim on the first day of the trial. The court of appeal held that the permission should not have been granted as there had been no explanation for the late application and the proposed amended pleadings had not been served.
The claimant’s claim concerned monies transferred to the defendant on the understanding that he could arrange for the funds to be transferred from his English bank account to a Pakistani bank account for a preferential rate. Cheques were provided to the defendant by the claimant but these were unsigned. The cheques were then given to a Mr Khan who then passed the cheques on to another party who dishonestly misappropriated the money. There was some dispute between the parties about who dealt with Mr Khan.
On the first day of the trial, the claimant was granted permission to amend his particulars of claim to allege that the defendant had acted in breach of a duty of care owed by passing the cheques to Mr Khan, causing him to suffer loss. This argument had first been referred to in the claimant’s skeleton argument filed just before trial. No application to amend was referred to or submitted with the skeleton argument. An application was only made when prompted by the recorder on the first day of the trial and the amended pleadings served on the second day. In addition the defendant’s application to call Mr Khan as a witness was refused on the grounds that it was too late.Article continues below...
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The judge found that the defendant had consented to the claimant's use of a third party, but judgment was granted in favour of the claimant. The damages award was reduced owing to contributory negligence on the part of the claimant.
On appeal the court concluded that with any application to amend, a court had to ensure that the case was dealt with justly, the principal issue could be adjudicated upon, and the party facing the amendment was not unfairly prejudiced. It was important to consider the prejudice to both parties of both outcomes. The judge concluded that the claimant's application was very late and was brought in a highly unsatisfactory way and that the recorder should not have given permission in principle to amend on the first day, but having done so he ought to have reconsidered the position at the conclusion of the evidence and, having proper regard to the prejudice caused to the defendant, that should have led to a refusal of the amendment.
This was a highly unusual case where the claimant was allowed to amend his particulars of claim very late in the day. It is not therefore surprising the court of appeal reached the conclusion it did, as to do otherwise would have been prejudicial to the defendant.
Kim Pryce & Amy Wedgwood, Anthony Gold Solicitors