Late amendments and jeopardising the trial date
By Tom Deely
Potential delay to a trial is a key factor for the court when deciding applications to amend statements of case, says Tom Deely
At a time when the courts are seeking to accommodate hearings which have been adjourned because of the covid-19 pandemic, against the backdrop of administrative and technical difficulties, a confirmed listing for trial has rarely been more valuable.
Practitioners may have sympathy with a party on the receiving end of an application that would put a confirmed trial date in jeopardy.
This was a consideration before the High Court in the recent case of Scott & Ors v Singh  EWHC 1714 (Comm). This concerned an application by the claimants for permission to amend their particulars of claim. They sought to increase the number of particulars of alleged misrepresentations made by the defendant and to abandon various elements of the original particulars of claim.
The rules relating to amendments to a statement of case are set out in rule 17.1(2) of the Civil Procedure Rules (CPR). If a statement of case has been served, a party may amend it only:
• With the written consent of all the other parties or
• With the permission of the court.
This article identifies the core considerations before the court when determining an application for permission to amend a statement of case, with reference to HHJ Eyre QC’s judgment in Scott.
The application in Scott
The claimants applied for permission to amend their particulars of claim in a dispute arising from a share purchase agreement with the defendant. The claimants issued proceedings on 13 June 2019 seeking damages for alleged misrepresentations and breach of express and implied terms.
The defendant criticised the adequacy of the particulars of claim at the costs and case management conference (CCMC) in October 2019 and intimated that a strike out application was contemplated by the defendant. The trial was listed for 1 February 2021 for thirteen days.
On 23 December 2019, the claimants served draft amended particulars of claim on the defendant’s solicitors; and in a letter in February 2020, the defendant confirmed that he consented to parts of the proposed amendments, but not to others.
The amended particulars of claim were not agreed pursuant to CPR17.1(2)(a) and the claimants therefore issued an application for permission in March 2020. The application was heard in April 2020. The court set out practical guidance on applications to amend pleadings:
The amendment must be properly formulated – If a party is seeking to amend their statement of case, the proposed amendment must be properly formulated and should set out clearly the case which the other party is to meet. Put simply, the proposed amendment must satisfy the CPR in terms of proper particularisation and pleading of any cause of action.
It’s not open to a party seeking to make a late amendment to their pleadings, to say that any deficiencies in the proposed pleading can be remedied in due course by further particularisation.
A real prospect of success – To obtain permission, the new case set out in the amended pleading must have a real prospect of success. The court’s approach to an amended statement of case is similar to the treatment of a summary judgment application, namely whether there is a real (as opposed to fanciful) prospect of the claim/defence being raised succeeding.
The position was summarised by HHJ Eyre QC in Scott: “The court is not to engage in a mini-trial when considering a summary judgment application and even less is it do so when considering whether or not to permit an amendment.”
The test applied to a proposed amendment arguably imposes a lower burden than a summary judgment application. Clearly, it would serve no purpose to allow an amendment if the claim or defence being argued could be defeated by a summary judgment application.
The timing of the amendment and impact on proceedings – If the amendment is made late in the proceedings and will cause the vacation of an existing trial date, this imposes a higher burden on the party seeking the amendment to show that justice requires them to be allowed to do so. Particular regard is to be had to the strength of the new case.
In the present circumstances where there is a significant backlog of cases to be listed, the impact of a proposed amendment on the listing for trial is likely to be a central consideration for the court. In Scott, the claimants argued that the proposed amendments were in reality only fuller particularisation of their pleaded case, following a change of counsel.
The defendant characterised the amendments as the introduction of new claims entirely, which would significantly impact on the timetable, such that the trial date would be lost. The additional work occasioned by the amendments would also require the parties to file updating costs budgets.
The Scott judgment
HHJ Eyre QC was satisfied that the claimants’ proposed amendments were adequately particularised and had shown a real prospect of success. The key issue was therefore the impact of the amendments on the timetable to trial.
He accepted the defendant’s submissions that to allow all of the proposed amendments would impact significantly not only on the amended defence to be filed, but also on disclosure, witness evidence and the scope of expert evidence.
The court acknowledged that all the additional preparatory work will have to be undertaken against the background of the difficulties posed by remote working and the impact of covid-19.
HHJ Eyre QC agreed that permitting the amendments would result in the loss of the existing trial date and, while the case may be ready for trial relatively soon after the current listing, the difficulties in finding a new trial date must be acknowledged and given proper consideration.
The court found that justice did not require the claimants to be allowed to amend their pleading at the price of the loss of the trial date. Only those amendments that would not put the trial date in jeopardy were allowed.
Parties’ written consent
In Scott, the claimants argued that the parties had consented to certain of the proposed amendments in correspondence, such that the claimants were entitled to amend the particulars of claim to the extent of that consent; and the court had no jurisdiction to prevent this (CPR17.1.2(a)).
The court dismissed this argument, commenting that CPR17.1.2(a) must be read as referring to the amendment of a statement of case as a whole, not to distinct parts. As the correspondence between the parties did not approve an identified statement of case, the court’s jurisdiction is not ousted and no consent had been provided to satisfy 17.1.2(a).
The judgment makes clear that the impact of the amended pleadings on the court timetable and the preparatory work for trial is central to the court’s consideration when determining an application for permission to amend a statement of case.
Even if the new case set out in the amended pleading has a real prospect of success, if the trial date will be lost as a result of the amendment, a heavy burden is imposed on the party seeking to amend their pleading to demonstrate that justice requires this.
The difficulties in accommodating a new trial date during the pandemic arguably makes this higher burden more difficult than ever to satisfy. It is important that if parties are seeking to amend their pleadings, they do so as early as possible to minimise the impact on the timetable through to trial.
Practitioners should also seek to agree amendments in correspondence and embody any agreed amendments in an amended pleading, where possible.
In Scott, the defendant had agreed to certain of the proposed amendments, so it was open to the claimants to agree a draft of the amended pleading containing the elements to which consent had been obtained and to have limited the application to only those amendments in dispute.
This would have significantly narrowed the issues in dispute and reduced the amendments requiring permission of the court.
Tom Deely is a senior associate at Russell-Cooke