Shebelle Enterprises Ltd v The Hampstead Garden Suburb Trust Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henderson |
| Judgment Date | 05 June 2013 |
| Neutral Citation | [2013] EWHC 3097 (Ch) |
| Court | Chancery Division |
| Date | 05 June 2013 |
| Docket Number | Case No: HC12C04705 |
[2013] EWHC 3097 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
Mr Justice Henderson
Case No: HC12C04705
Mr Jonathan Seitler QC (instructed by Berwin Leighton Paisner) appeared on behalf of the Claimant
Mr Tom Weekes (instructed by Lee Bolton Monier-Williams) appeared on behalf of the Defendant
Approved Judgment
This is an application by the claimant, Shebelle Enterprises Limited, to amend its particulars of claim. The application was due to be heard on 13 th May, which was the date fixed for consequential matters following the earlier hand-down of my judgment, but there was no time to deal with it on that occasion.
The proposed application to amend was, I think, first raised in the form of an unissued application notice dated 7 th May, and the proposed amendments, put shortly, seek to add two further claims. First, a claim of threatened breach of statutory duty; and secondly, a claim of threatened commission of a public (or alternatively a private) nuisance, in addition to the existing claim based on the covenant for quiet enjoyment which was dealt with in my judgment. The amendments are commendably succinct, and are to be found in paragraphs 2.3 and 4.1 of the proposed amended particulars of claim.
It is important to put this application in its chronological framework. The original hearing of the claimant's application for an interim injunction, and of the Trust's cross-application for summary judgment, took place before me on 20 th February of this year, when I reserved judgment. My written judgment was handed down on Monday, 22 nd April, having been circulated in draft in the usual way to counsel and their instructing solicitors some days beforehand.
The two substantive matters which I dealt with in that judgment were the preliminary points taken by the Trust, which I described as the first and second preliminary points; I decided the first of those in favour of the claimant, but the second in favour of the Trust. In paragraph 64 of my judgment I pointed out, as I think I had done earlier, that the claimant's case for an injunction was based only on the covenant for quiet enjoyment in the lease. Despite various complaints of improper, or allegedly improper, decision-making in the correspondence, there was no pleaded case to that effect, and such arguments formed no part of the case presented on behalf of the claimant by Mr Seitler QC.
In paragraph 65 I stated my conclusion that the second preliminary point taken by the Trust was sound in law, and continued:
"…the claim must therefore be dismissed."
At that stage I had received no intimation of any wish to amend the particulars of claim, either in the course of the hearing or in the period between the circulation of my draft judgment and the hand-down. The reason why a further hearing was arranged to deal with consequential matters, if I remember rightly, was to suit the convenience of counsel, and was not because I had any reason to suppose that an application to amend would be among those consequential matters. Certainly I assumed that the hearing would be dealing with the usual matters, such as the form of the order, permission to appeal and costs.
It is against that background, then, that the application to amend first appeared in the draft application notice of 7 th May. As far as I am aware there had been no precursor correspondence, and at the date of the hearing on 13 th May I had before me simply that application notice with the draft amended particulars of claim annexed, and the brief explanation set out in box 3 on the front of the application notice, which averred that there were exceptional circumstances that would justify the grant of permission. Reliance was placed on the terms of my judgment about the nature of the duty owed by the Trust to the local residents, and it was said that in the light of my judgment the claim could now viably be put on the basis of breach of a statutory or public duty, and that the claimant should not be prevented from pursuing its case on the basis that has only just become apparent." (Quote unchecked)
It was also said that there would be no prejudice to the Trust which could not be compensated for in costs, and I interpose to note that the costs of the first hearing and of the action down to judgment have, as I understand it, now been paid in full. Secondly, it was said that there would, by contrast, be serious prejudice to the claimant if these new claims could not now be advanced, because otherwise it would have no effective remedy for the Trust's threatened breach of those duties. It was suggested that the most cost-effective and sensible way for those claims to proceed would be by way of amendment to the existing case rather than by the commencement of any fresh action. It was pointed out that the claim was still in its infancy, there had been no case management, and no steps had been taken beyond the service of statements of case. All of those points were made without prejudice to the stated intention of the claimant to seek permission to appeal. For the reasons which I gave on 13 th May, I refused permission to appeal. I am told today that the application has subsequently been renewed before the Court of Appeal and a decision on the application is awaited.
For the purposes of this morning I do not need to say very much about the merits of the proposed amendments. They are expanded on in Mr Seitler's skeleton argument, and I think it is realistically accepted by Mr Weekes, appearing today as before on behalf of the Trust, that I do not have sufficient material to express a concluded view about their merit or lack of merit. In due course he may wish to submit, if matters reach that stage, that the claims are indeed devoid of merit and he has made some points which do, on the face of it, present considerable difficulty to the claimant in advancing a case based either on breach of statutory duty or based on public or private nuisance. I acknowledge that there may well be force in some of those points, and my initial impression, for what it is worth, is that the claims are likely to be ones which face very considerable difficulties of law and/or fact. Nevertheless, I proceed today on the footing that they are at least arguable, and are not so obviously lacking in merit that permission to amend should be refused on that ground alone.
However, Mr Weekes has a much more powerful preliminary point, for which he relies upon the decision of the Court of Appeal in the case of Stewart v. Engel [2000] 1 WLR 2268. That was a case which, at least superficially, had some important similarities to the present case, because the claimant was seeking permission to amend after judgment had been given in favour of the defendant on an application for summary judgment, and one of the issues which the Court of Appeal had to consider was what principles should be applied where an application to amend was made at a stage after judgment had been handed down, but before the order of the court had been drawn up.
The nature of the claim is summarised in the headnote. The plaintiff issued proceedings in negligence and breach of contract against the liquidator of a management consultancy company and the liquidator's firm. The claim related to copies of certain documents belonging to the plaintiff, which had been taken from the company's premises by a competitor, to whom the liquidator had sold various other materials. The defendants applied for summary judgment, contending that there was no proper basis for alleging that the liquidator was either negligent or acting in breach of contract.
In the course of the hearing, the judge expressly asked whether the plaintiff's advisers had considered a claim based on the tort of conversion. Counsel disclaimed any intention to advance such a claim, and the judge therefore did not deal with the matter on that basis in his judgment. He did, however, expressly leave open...
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