Terrapin Ltd v Builders' Supply Company (Hayes) Ltd, Taylor Woodrow Ltd and Swiftplan Ltd

: This case has come to this Court in what must be said to have been rather unfortunate circumstances. I propose to deal with it quite briefly. The point was taken - quite fairly - by the second Defendants named in the action that the Statement of Claim which had been delivered in October did not contain allegations sufficient to establish - even if they were proved to the hilt - liability on the part of the second Defendants. The second Defendants, therefore, applied to have the Statement of Claim struck out as against them and the action stayed as against them. The matter came before Mr. Justice Vaisey, who thought (and, if I may say so, rightly thought) that, as pleaded, and in light of cases founded on that of ( Rainham Chemical Works Ltd. v. Belvedere Fish Guano Company 1921 2 Appeal Cases, page 465), the pleading did not support a cause of action against the second Defendants; but he gave to Mr. Lloyd, for the Plaintiffs, an opportunity by amendment to amend the Statement of Claim so as to make allegations which would, if proved, suffice to establish the cause of action, being the cause of action clearly intimated in the writ. When the matter came on again before Mr. Justice Vaisey, Mr. Lloyd presented to the learned Judge a new Statement of Claim: that is to say, he had re-drafted the whole document, incorporating amendments but ex facie making it appear like a new document, nowhere distinguishing what was new from what was original. Mr. Justice Vaisey took, quite plainly, strong exception to this and thought that he was not being properly treated: he declined to give Mr. Lloyd any further opportunity, and made the Order which the second Defendants sought.

I have said that I think it was unfortunate, because I feel little doubt that, if Mr. Lloyd had put the new allegations in red and added the word "Amended" at the beginning, the learned Judge would have dealt with it; and I should myself be disposed to think that he would have allowed the amendments, on terms. However, that is not what happened. The result is that the matter has now come, by our leave, before us. Sir Andrew Clark has objected to the amendments and said that we ought not to allow them, and that, in disallowing them, we should therefore strike out the Statement of Claim because it has not disclosed a cause of action against the second Defendants. He has criticised Mr. Lloyd's draftsmanship and said that it is vague and uncertain as to what it means. In order to make a cause of action against the second Defendants, it must be shown (I quote from Sir Andrew's summary, and do not dissent from it) that there must be actual instigation or its equivalent on the part of the second Defendants, or some agency agreement. There is no suggestion of the latter. What Sir Andrew says is that, though Mr. Lloyd has used a number of words, he has not used quite the right ones. I think it would not be at all useful if I went elaborately into it. It may well be, when all the facts are proved, that the allegations will not be found sufficient: it may be that further particulars will have to be given. But, fairly reading this document, I cannot now doubt that the intention is to allege such a degree of direction or instigation, or whatever word you like to use, as would make the second Defendants liable, assuming always, of course, that the facts alleged are proved. I think that the criticism is, if I may say so, more based on inelegance than substance. I therefore would not be disposed to say, with Sir Andrew, that even now these amendments fall short of a sufficiently clear allegation against the second Defendants.

Then Sir Andrew further suggested that the claim against the second Defendants had really been abandoned by the first Statement of Claim and should not now be revived. That the writ included such a claim is not in doubt, because it asked for relief on the basis of procuration. If the Statement of Claim as originally drawn, properly construed, amounted to an abandonment, then it might well be that the Court would say "You ought not now to be allowed to raise it again". It might or might not. But to my mind it appears quite clear that there was no abandonment. It may be that there was an insufficient pleading. Indeed, I think there was. But that was not abandonment. I therefore think that objection falls to the ground.

But there was a final point taken by Sir Andrew which, it seems to me, is a good one. In addition to the amendments which expanded the brief and insufficient paragraphs 2 and 10 of the original Statement of Claim and which are relevant only to the second Defendants, there have been added words at the end of paragraph 18 and at the end of the sixth prayer which bring in an allegation of improper use of lists of customers or of information relating to lists of customers. As Sir Andrew pointed out, that is an allegation, on any view of it, not confined to the second Defendants; and on this proceeding the other two Defendants are not here. I therefore would make an exception to what I have generally said about allowing the amendment of the document in my hand, to the extent that I would not allow the last three lines of paragraph 18, the red ink amendments there, or the last two lines of the prayer numbered "6". But that is without prejudice entirely to the Plaintiffs' right to make appropriate application to add those further amendments to their Statement of Claim - which application would be, of course, one heard in the presence of all the Defendants and dealt with upon its merits.

Subject to that one point, I propose to say no more by way of elaboration, because I think it would only trespass upon matters which will have to be dealt with hereafter. I think that the appeal which lies before us should be allowed: that is to say, that these amendments (save those I...