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Legal principles: pleading and amendment
Legal principles: pleading and amendment
The purpose of a pleading is to give notice of the primary facts that a party intends to prove at trial. CPR 16.5 provides that a defence must identify which of the allegations in the particulars of claim are denied, and “their reasons for doing so”. Where a defendant intends to “put forward a different version of events from that given by the claimant, they must state their own version”. The Commercial Court Guide asks for statements of case to be “as concise as possible”, and that “evidence should not be included”: para C1.1.
Although it is simple enough in theory to gesture at the line between allegations of “primary fact”, “particulars” which are properly pleaded, and “evidence” which is not, drawing the line in any actual case is often a matter of pragmatic art. Moreover, there are some cases where the rules or practice directions require additional detail including (rarely) evidential matters (16 PD para 8.1) and, more commonly particulars of “any allegation of fraud” (16 PD para 8.2 (1)), “details of any misrepresentation” (16 PD para 8.2 (3)) and “notice or knowledge of any fact” (16 PD para 8.2 (5)).
To serve its purpose as a tool for the parties and the court to prepare for trial, a pleading needs to be unambiguous, and coherent: there should be no doubt what is being alleged, and the pleading should make sense. Lack of ambiguity, however, should not be turned into a demand for unreasonable precision, or excessive detail (which may, indeed, obscure the real issues); coherence does not prevent alternative pleas, provided the relationship between them is clear; and “making sense” does not mean that the pleading need state an overwhelmingly strong case. A pleading serves its purpose if it adequately defines a case worthy of consideration at trial.
When it comes to amendments, the overriding consideration is the overriding objective: where possible the court wishes to be put in a position to determine the real issues at trial, which in turn means that those issues should be squarely, fairly, and comprehensibly set out in the pleadings. As has rightly been said, “the circumstances in which amendments may be put forward are infinitely variable and … each contested application will require an exercise of the court’s discretion that takes into account the particular facts of the case at hand”: Vilca v Xstrata Ltd [2017] EWHC 2096 (Comm) [22].
Nevertheless, although circumstances vary, certain patterns repeat, so that in broad terms various common objections emerge in the cases. One possible taxonomy might suggest that there are three broad categories of objection:
Objections to the proposed pleading as a pleading. This category includes objections that the proposed amendment will not properly serve a pleading’s intended function, for example because the other parties and the court cannot understand it or work out what fact is being alleged, or because it impermissibly pleads evidence or narrative background rather than primary fact, or because it does not give sufficient detail for the other party to respond to it or prepare its case, or because it will be difficult or impossible for the party responding to it to “plead back”, or because it raises irrelevant points which will simply obscure relevant issues. These are all objections which could, if no amendment were required, be made under CPR 3.4 (b) which permits the court to strike out a statement of case which “is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of proceedings”.
Objections to the proposed pleading on the merits. The classic cases is one in which the amendments allege facts that, if proved, would not establish a claim, or not establish a defence, and which (if made in a statement of case) would be liable to be struck out under CPR 3.4 (a), which empowers the court to strike out a statement of case which “discloses no reasonable grounds for bringing or defending the claim”. But the point may go further than that, for the court may refuse to permit amendments even if the fact (if proved) would be important, but where the evidential basis for the allegation is so thin that the person seeking to make the amendment has no realistic prospect of getting that ball into the net: Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] 3 All ER 978 at [18].
Objections on case management grounds. Some amendments cause only modest expense, and do not pose any risk of disrupting an established timetable (for example, an amendment to plead a new legal theory based on already-pleaded facts made long before trial). Others are much more disruptive and costly, involving for instance the need to re-visit disclosure searches that have been completed, or obtain new evidence, or—in an extreme case—resulting in the adjournment of a trial. The more disruptive the amendment, the less likely it is to be allowed: see CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345 (TCC) at [19]. It is in this context that “late amendments” are sometimes dealt with as if they occupied a special category, though I would be inclined to think that this simply reflects points on a spectrum, rather than any sort of watershed.
The cases indicate that, in accordance with the overriding objective, the court must balance the prejudice to each party—to the amending party if the amendment is refused, and to the responding party if it is allowed. Although I am sure that balancing is always required, I do not think that every issue on an amendment application can be turned into a balancing act. For instance, where the court disallows—after argument—an amendment which discloses no reasonable claim it is not balancing anything, and since the claim is not one that could succeed there is no prejudice to the amending party to balance. The cost and disruption considerations, however, will always involve some element of balance.