Impact of Amendments on Trial Dates: A Case Study of Scott & Ors v Singh, Lecture notes of Civil procedure

Download Impact of Amendments on Trial Dates: A Case Study of Scott & Ors v Singh and more Lecture notes Civil procedure in PDF only on Docsity! PRACTICE NOTES LITIGATION 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 adminis- trative and technical difficulties, a confirmed listing for trial has rarely been more valuable. Practitioners may have sympathy with a par- ty 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 [2020] EWHC 1714 (Comm). This concerned an application by the claimants for permis- sion 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 state- ment 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 applica- tion for permission to amend a statement of case, with reference to HHJ Eyre QC’s judg- ment 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 man- agement 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 de- fendant’s solicitors; and in a letter in February 2020, the defendant confirmed that he con- sented 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 for- mulated – 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 pros- pect 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 amend- ment 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 be- ing argued could be defeated by a sum- mary judgment application. ● The timing of the amendment and impact on proceedings – If the amend- ment is made late in the proceedings and Late amendments and jeopardising the trial date Tom Deely Tom Deely is a senior associate at Russell-Cooke Russell-cooke.co.uk Potential delay to a trial is a key factor for the court when deciding applications to amend statements of case, says Tom Deely Justice did not require the claimants to be allowed to amend their pleading at the price of the loss of the trial date 60 / February 2021 / solicitorsjournal.com 164/2