Late applications to amend come a cropper in High Court

Time running out: courts refuse late applications

Time running out: courts refuse late applications

The High Court has condemned as “utterly inappropriate” a bid by one of the big banks to amend its defence and serve a new witness statement on a litigant in person on the eve of trial.

HHJ Simon Baker QC, sitting as a High Court judge in Birmingham, was particularly unhappy that there had been “not even one word to explain why the evidence… [was] prepared late, could not have been prepared earlier, and ought now, at this very late stage, to be permitted to be adduced at trial”.

He added: “Nor is there even one word to explain why the defence, which has stood for almost two years, and has been the subject of a detailed reply, should be amended only three working days before the trial begins.”

Proceedings in Monks v National Westminster Bank Plc [2015] EWHC 1172 (Ch) began in March 2013. Having reviewed the procedural chronology, the scope of the proposed order and the submissions, the judge said he was led “unhesitatingly to the conclusion that this very late application simply should not have been made”.

He explained: “It is utterly inappropriate to come to a court a matter of days before the trial and seek to adduce substantial further primary evidence-in-chief and to amend a pleaded case without even one word of explanation as to why that amendment and why that further evidence is sought to be introduced at such a late stage and why – if such be the case – it could not have been put before the court much earlier.

“It is inconceivable that a litigant in person should be expected to deal with a 27-page witness statement, over 220 pages of additional documentation (even if much or even all of it is common to the parties from their historic dealings over the course of years ago), and a revised case without there being an inevitable adjournment in order that there can be a fair response to this material and equality of opportunity to prepare for trial.

“Further, I do not accept that necessitating an adjournment is the only measure of prejudice to the administration of justice or other litigants. The prejudice to both the opposing party, Mr Monks, and to the administration of justice and litigants generally is so overwhelming that for those reasons alone this application must fail and be dismissed.”

In another case published today, Wani LLP v The Royal Bank of Scotland Plc [2015] EWHC 1181 (Ch), Mr Justice Henderson was similarly strict on the claimant’s application to make extensive changes to its particulars of claim ahead of the trial in early June.

He found that the application should have been made last autumn, when it would have had reasonable prospects of success.

The judge ruled: “Litigants who leave a substantial application to amend until a late stage cannot reasonably complain, in my judgment, if the undoubted prejudice to them caused by refusal of the application is found to be outweighed by the other factors which the court has to take into account. The present case, in my view, is one of that kind.”

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