Summary

A judge had been right to refuse to allow a claimant to re-amend its particulars of claim. The proposed re-amendments fundamentally recast the particulars of claim, made it five times longer than the original, and did not contain a concise statement of the facts relied upon in support of the claim.

Facts

The appellant (H) appealed against a judge's refusal ([2014] EWHC 568 (Ch)) to permit it to re-amend its particulars of claim in proceedings alleging dishonest breach of fiduciary duty and dishonest assistance against the three defendants.

The case was the fifth set of proceedings in a lengthy family dispute. The draft re-amended particulars of claim was, at 65 pages, five times longer than the original. It was a completely new pleading and would require the re-pleading of the defences. It detailed what was alleged to be the defendants' case, referring to the submissions, evidence and pleadings in the earlier litigation. The judge held that the re-amendments were disproportionate in that they would not result in the litigation being conducted at proportionate cost and would cause extensive judicial time to be expended at the expense of other litigants. He relied on a passage in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 W.L.R. 795 which indicated that the Jackson reforms required strict compliance with rules and orders and a fair allocation of time to all litigants. He found that although no trial date had been fixed, the application was late given the time that had passed and the work that had been done. He found that the re-amended particulars did not include a concise statement of the facts on which H relied so as to clarify the issues, and included matters that could have been dealt with in a reply. Finally, he disallowed specific re-amended claims on the basis that they were bound to fail.

H submitted that the judge had erred in (1) relying on the passage from Mitchell, since that case concerned non-compliance; (2) concluding that the re-amendments were late; (3) concluding that the re-amendments would lead to further work without analysing what work was required; (4) concluding that certain of the re-amended claims were bound to fail.

Held

(1) Far from being a concise statement of the primary facts relied upon in support of the claim, the draft re-amended particulars was a rambling narrative of the supposed twists and turns of the defendants' case, serving no apparent purpose and obscuring the claim. Given the burden already placed on the court by the family's litigation, the judge's reference to Mitchell was understandable. The passage he quoted contained a general description of the effect of the Jackson reforms in tempering the court's desire to achieve perfect justice between the parties and it emphasised the need to allocate to each party no more than a fair share of the court's limited resources. That principle had appeared in the CPR from the outset and was not limited to cases involving a breach of the CPR, Practice Directions or court orders, PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288, [2014] 1 W.L.R. 1386 and Swain Mason v Mills & Reeve [2011] EWCA Civ 14, [2011] 1 W.L.R. 2735 considered. In any event, the judge had primarily rejected the application because the re-amended particulars did not contain a concise statement of the facts relied upon (see paras 3, 23, 25-28 of judgment). (2) The judge had been entitled to approach the question of the lateness in the way he did. Lateness was a relative concept and its relevance depended on the explanation given for it, the nature of the proposed amendments, and the consequences in terms of work wasted and necessitated. The weight to be given to the lateness of an application was a matter for the judge. While claimants had to plead the facts from which they sought to infer dishonesty, H had not attempted any brevity or focus. There were better case management alternatives for satisfying the requirement for particularity in relation to allegations of dishonesty. Focused points of claim followed by points of defence and reply could be filed outside the particulars of claim (paras 33-41). (3) The judge had been entitled to find that the re-amendments would lead to further work. He was very experienced, had tried the earlier litigation, and had been heavily involved in the case management of the instant proceedings. A judge was entitled to apply his general and particular experience to the question of increased cost and burden of work without spelling out his reasoning in analytical detail (paras 42-43). (4) The judge had been entitled to reach the conclusions he did about the substance of the re-amended claims. The most significant re-amendment was the attempted resurrection of an abandoned allegation, without explanation. The judge drew an analogy with the making of a fresh claim after discontinuance under CPR r.38.7, indicating that it was only in exceptional circumstances that the court should allow an abandoned claim to be re-instated. He had been right to draw that analogy, but had arguably erred in his reference to exceptional circumstances. Pt 38.7 stipulated that an abandoned claim could only be reinstated with the court's permission. While the court might look for exceptional circumstances, that was not a requirement imposed by the CPR. The question was whether the claimant had given sufficient explanation for seeking reinstatement, and H's explanation had not been sufficient. Insofar as the judge had erred in his reference to exceptional circumstances, that had not led him into error in his ultimate decision (paras 48-55).

Appeal dismissed