Michael and Others v Phillips and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 09 February 2017 |
| Neutral Citation | [2017] EWHC 1084 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/16/1096 |
| Date | 09 February 2017 |
[2017] EWHC 1084 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London
WC2A 2LL
Mr Justice Soole
Case No: TLQ/16/1096
Mr S Hornett (instructed by Barker Gillette) appeared on behalf of the Claimant
Mr S Beresford (instructed by Geldards (Derby)) appeared on behalf of the First, Second and Third Defendants
(As Approved)
This is the pre-trial review of this action concerning the sale of a minicab business and related issues which is due for trial in a window commencing 27 February this year with a six day estimate. The pre-trial review was ordered by Green J by his order of 3 February. The order was in consequence of his decision in a judgment of the previous day whereby he struck out the defendant's defence and counterclaim and debarred the first and second defendants from defending the claim.
The essential issues which I have to determine are first whether the claimants should be permitted to re-amend their Particulars of Claim in a number of respects and secondly, whether in consequence of the order debarring the first and second defendants from defending the claim they should in any way be entitled to participate in the trial as the claimants contend.
I need not rehearse the substance of the dispute or the long and substantial procedural history because they are fully set out in Green's J judgment of 2 February. Sufficient to say that the judge found there had been a severe breach of an unless order made against the first defendant, breaches of previous orders for the disclosure and preservation of documents and that there had been the destruction of documents together with what the judge described as conduct forming part of a broader strategy of refusing to provide disclosure.
These were severe breaches requiring, as he held, the severe remedy of debarring the first and second defendants from defending the claim. There is no such disability against the third defendant, Mrs Phillips, who was not in breach of any order and who is fully entitled to participate in the claim against her. That claim against her and her husband concerns a freehold property at 142 South Street, Romford and a claim under the Pallant v. Morgan principle arising from the purchase of that property.
As to the amendments, they consist of a number of deletions of previous contentions, tidying up amendments and amendments to the claim on quantum. Those amendments essentially stem from a combination of the late disclosure of documents by the first and second defendants and from the consequential expert report obtained and served on time by the claimants. There is also an amendment in the claim concerning 142 South Street to add a constructive trust basis of claim in addition to the Pallant v. Morgan basis. That amendment is a further or alternative legal way of putting matters and involves no new facts.
Mr Stephen Beresford, counsel for all three defendants, opposes the application to amend. As to the new point of law against Mrs Phillips, he says it that is a matter that has not been affected by disclosure and could and should have been raised at an earlier stage.
As to the amendments concerning quantum, he does not dispute that those have arisen from the disclosure or from the expert report, but submits that the grant of permission for those amendments would itself raise questions which have to be determined on the separate matter of the consequences of the debarring order. If these amendments were made and the first and second defendants were in the usual way able to participate, then they would be able to deal with them. However, if there is to be no participation then these new matters will place his clients at a disadvantage. In short, he says that the question of these amendments is linked to the question of participation in the trial. If there is to be no participation then there should be no amendment.
In my judgment, it would be a curious consequence if a party who was in severe breach of court orders and had been debarred from defending was in a better position as against such proposed amendments than a party who had duly complied with court orders and was entitled to participate in the trial. I should therefore approach the matter simply by considering whether they would cause any difficulty to the first and second defendants in a normal trial. I should add that Mr Beresford does not submit that this is a case of very late amendments which face the additional obstacles emphasised by recent case law, notably the Mills & Reeve case.
There is a very good and clear explanation why the proposed amendments in respect of quantum have not been made before and that is because of the conduct of the defendants. I conclude that they ought to be allowed, as...
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