Brown and Others v Innovatorone Plc and Others

JurisdictionEngland & Wales
JudgeMr Justice Hamblen
Judgment Date28 November 2011
Neutral Citation[2011] EWHC 3221 (Comm)
Date28 November 2011
Docket NumberCase No: 2008-1082/2009-897/2009-604
Year2011
CourtQueen's Bench Division (Commercial Court)

[2011] EWHC 3221 (Comm)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION COMMERCIAL COURT

Royal Courts of Justice

Rolls Building

Fetter Lane

London EC4A 1NL

Before:

Mr Justice Hamblen

Case No: 2008-1082/2009-897/2009-604

Between:
Andrew Brown & others
Claimants
and
Innovatorone Plc & others
Respondents

Mr J Powell QC, Mr G Chapman, Mr Shail Patel and Mr Can Yeginsu (instructed by Enyo Law LLP) for the Claimants

Mr P Carter in Person Mr B Steidl in Person Mr D Gates in Person Mr A George (instructed by Kingsley Napley LLP) appeared on behalf of the Sixth Defendant

Miss S Carr QC and Mr T Chelmick (instructed by Byrne & Partners) appeared on behalf of the Seventh Defendant

Mr J Fenwick QC, Mr B Hubble QC and Mr B McGurk (instructed by Beachcroft LLP) appeared on behalf of the Eighth Defendant

Mr N Meares (instructed by Blount Petre Kramer) appeared on behalf of Vermillion International Investments Limited

Hearing dates: 21 and 24 November 2011

JUDGMENT (Approved)

Mr Justice Hamblen

Introduction

1

This is an application by the claimants to re-re-amend the

Particulars of Claim.

2

The background to the present application is set out in my ruling of 2nd November 2011 in which I determined that certain averments made by the claimants in opening required to be pleaded.

3

Following that ruling, the present application was issued on 8th November 2011 and the main hearing of the application took place on 21st November 2011, Day 20 of the trial. This led to a further short hearing on 24th November, Day 23 of the trial. The trial is presently due to carry on until mid-February 2012 and the defendants are due to start giving evidence from 29th November 2011.

4

The amendments fall under three heads. Firstly, there is an amendment to the conspiracy claim in paragraph 331 of the Re-Amended Particulars of Claim (“RAPOC”). Secondly, there is an amendment to paragraph 244 of the RAPOC in relation to the claim made against Mr Roper in misrepresentation. Thirdly, and most controversially, there is an amendment to schedule GS13 to the RAPOC, adding 29 new allegations of backdated documents.

The relevant principles

5

I was referred to the often cited dictum of Lord Justice Peter Gibson in Cobbold v Greenwich Borough Council which has for some time been set out under the heading “General principles for grant of permission to amend” in the White Book at 17.3.5. It states as follows:

“The overriding objective of the CPR is that the court should deal with cases justly. That includes, so far as is practicable, ensuring that each case is dealt with not only expeditiously but justly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party [or parties] caused by the amendment can be compensated for in costs, and the public interest in the [efficient] administration of justice is not significantly harmed.”

6

In recent years the courts have been more willing to recognise that prejudice may be caused by amendments which cannot be compensated for by costs, particularly in the context of late amendments. As Lord Griffiths stated in Ketteman v Hansel [1987] AC 189 at page 220E “… justice cannot always be measured in costs …”

7

If, for example, an amendment requires an adjournment, that may well cause significant prejudice regardless of any award of the costs of the adjournment. Parties to litigation have a legitimate expectation that trials will be conducted on the dates fixed for trial by the court and that the trial will not be put back or delayed without good reason. The disruption caused thereby to other litigants is also now recognised as a relevant factor to take into account.

8

As stated by Lord Justice Waller in the case of Worldwide Corporation v GPT Limited [1998] EWCA Civil 189 at pages 12 to 13:

“… in previous eras it was more readily assumed that if the amending party paid his opponent the costs of an adjournment that was sufficient compensation to that opponent. In the modern era it is more readily recognised that in truth the payment of the costs of an adjournment may well not adequately compensate someone who is desirous of being rid of a piece of litigation which has been hanging over his head for some time, and may not adequately compensate him for being totally (and we are afraid there are no better words for it) ‘mucked around’ at the last moment. Furthermore, the courts are now much more conscious that in assessing the justice of a particular case, the disruption caused to other litigants by last minute adjournments and last minute applications have also to be brought into the scales.”

9

A party against whom an amendment is sought to be made may well be reluctant to request an adjournment precisely because of the disruption and prejudice it will cause. Prejudice may nevertheless be suffered if, for example, the party will be significantly hampered in the preparation for, and conduct of, the trial.

10

As Lord Justice Waller observed in the Worldwide case at pages 11 to 12:

“Equally when a case has been prepared with witness statements and experts' reports on one way of putting the case, it is harsh to criticise advisors of the defendants for asserting that they would need some period in which to examine the extent to which the amendments affected them and their witnesses. The periods laid down for production of witness statements and experts' reports are there so that they can be served on the other side in good time and so that the conduct of a trial can be as expeditious as possible. Forcing a party to look again at those statements and the experts' reports at the same time as conducting the trial is not fair or conducive to the efficient conduct of the trial.”

11

In the light of considerations of this kind, it has been stated that a heavy onus lies on a party making a very late amendment to justify it. Lord Justice Waller stated in the Worldwide case at page 21:

“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 both to him, his opponent and other litigants, requires him to be able to pursue it.”

12

That passage was cited in the later Court of Appeal case of Swain-Mason v Mills & Reeve [2011] 1 WLR 2735, in which Lord Justice Lloyd stated as follows at paragraph 72:

“As the court said, it is always a question of striking a balance. I would not accept that the court in that case sought to lay down an inflexible rule that a very late amendment to plead a new case, not resulting from some late disclosure or new evidence, can only be justified on the basis that the existing case cannot succeed and the new case is the only arguable way of putting forward the claim. That would be too dogmatic an approach to a question which is always one of balancing the relevant factors. However, 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.”

13

He also observed at paragraph 104:

“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 in April 2010 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….”

14

As the authorities make clear, it is a question of striking a fair balance. The factors relevant to doing so cannot be exhaustively listed since much will depend on the facts of each case. However, they are likely to include:

(1) the history as regards the amendment and the explanation as to why it is being made late;

(2) the prejudice which will be caused to the applicant if the amendment is refused;

(3) the prejudice which will be caused to the resisting party if the amendment is allowed;

(4) whether the text of the amendment is satisfactory in terms of clarity and particularity.

The conspiracy amendment

15

The amendment consists of clarifying that the claimants' conspiracy case does not relate to Mr Evans after his death and only relates to Mr Gates in relation to the GT1 and GT2 schemes. It does not involve a fundamentally new or different case.

16

The defendants, and in particular Ms Carr on behalf of Mr Bailey, object that the claimants' case is still unclear in that it remains obscure whether they are alleging a single conspiracy or a multiple conspiracy.

17

The claimants contend that that is an unsound distinction and that a single conspiracy may be said to have multiple overlapping agreements at various times, and that a multiple conspiracy might equally be said to have common victims and overlapping perpetrators. The question in every case, they submit, is whether a defendant is liable in the tort of conspiracy.

18

I agree with the claimants that their conspiracy case is sufficiently pleaded once one has regard not just to the RAPOC but also to the Reply and the Further Information which has been provided. The amendment adds to the clarity of that pleading and narrows the assertions made, at least as far as Mr Gates is concerned. The objections which are raised go more to the existing plea of conspiracy than to the amendment.

19

In my judgment no prejudice would be caused by the amendment. Indeed, the amendment helps the position of Mr Gates and, having regard to the various considerations...

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