CA-2025-000379 - [2025] EWCA Civ 1357

Was permission to amend wrong in principle?

Once it is concluded that the purpose of section 18A is limited to requiring an opportunity for conciliation prior to the institution of proceedings (in the sense that I have held) I do not see how it can be wrong in principle to permit the introduction of a fresh claim or party by amendment. I respectfully agree with the reasoning of Judge Eady at paras. 29-31 of her judgment in Science Warehouse (endorsed in Drake). As she says at para. 30, the fact that the amendment avoids the requirement to invoke the early conciliation process may be a relevant factor in the exercise of the tribunal’s discretion but it cannot be determinative.

Mr Baker’s essential response was that if the Claimant’s argument were correct any claimant whose complaint included more than one claim, and who had had one of those claims rejected for non-compliance with section 18A, could avoid the need to go back and invoke the early conciliation process by instead applying for permission to amend: he referred to the facts of Webster by way of illustration. But that concern is convincingly addressed by Judge Eady in para. 29 of her judgment in Science Warehouse: the tribunal would not be obliged to grant permission to amend and would only do so if it believed that it was a proper exercise of its discretion to do so.