Yves Patural v DG Services (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh |
| Judgment Date | 13 November 2015 |
| Neutral Citation | [2015] EWHC 3660 (QB) |
| Docket Number | Case No: HQ/13/0517 |
| Court | Queen's Bench Division |
| Date | 13 November 2015 |
[2015] EWHC 3660 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
The Strand
London, WC2A 2LL
Mr Justice Singh
Case No: HQ/13/0517
Mr Andrew Hochhauser QC & Ms Jane Russell (instructed by Edwin Coe LLC) appeared on behalf of the Claimant
Mr Christopher Jeans QC (instructed by Baker & Mackenzie LLC) appeared on behalf of the Defendant
After I had delivered my oral judgment this morning on the defendant's applications, an application was made on behalf of the claimant to amend his particulars of claim. As I understand it, no previous notice had been given of that, but in any event those representing the defendant have been given some time and have been able to deal with the application to amend after a short adjournment.
The application to amend would have the following effect. Paragraph 13 of the particulars of the claim would be amended to include a further sentence:
"Furthermore, by reason of the conduct specified in paragraphs 10 and 11 herein, Messrs Nicholls, Bittar and Curtler acted in bad faith and it is properly to be inferred that the process, which was the subject of the misleading and untrue statements was equally carried out in bad faith."
Paragraph 19 would be amended to include a similar passage in relation to the process which related to the 2009 bonus award. It is not necessary to spell out its terms for that reason. Paragraph 20(2) would be amended in subparagraph (b) to add the words at the end in "breach of the document of fair dealing". It would also be amended to include a new subparagraph, given the letter (d):
"It is properly to be inferred from the conduct as set out at paragraphs 10, 11, 16 and 17 above and the inferences properly to be drawn there from as set out in paragraphs 13 and 19 above that the exercise of discretion in awarding the claimant the bonuses set out at paragraphs 9 and 15 above was irrational and/or perverse and/or demonstrated a lack of fair dealing in breach of the implied term of trust and confidence."
The power to amend is contained in CPR 17.1. My attention has fairly been drawn to the provisions of CPR 17.4 also because it is properly recognised on behalf of the claimant that at least part of this claim, that relating to the 2008 award, might be said to be outside the normal six year limitation period. Nevertheless, the court is invited to allow the amendments even and to the extent that they may be outside the limitation period.
Although the application has been made late in the day, it is submitted on behalf of the claimant that the court has power to allow such an amendment even at this late stage, although it is fairly recognised that the matter is within the court's discretion.
An example of where the Court of Appeal was prepared to exercise such a discretion has been drawn to my attention, name its decision in Cook v MSHK Limited [2009] IRLR 838. At first instance in that case, Burton J had struck out paragraphs 32.2 to 32.5 of the claim on the basis that the claimants had affirmed alleged repudiatory breaches of the contract and could not now claim for relief in respect of them. He allowed paragraphs 32.1 to 32.5 and 32.6 to proceed to trial. The defendant appealed against that decision, arguing that the judge should have struck out the entire claim. The claimants applied for permission to cross-appeal in relation to the other matters. The principal judgment was delivered by Rimer LJ.
As I understand it, both from the terms of the judgment and also from what Mr Hochhauser QC has informed me, he having appeared also in that case, what happened was that the Court of Appeal reserved...
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