Al Nehayan v Kent [2015] EWHC 1176 (QB)

Case No QB-2014-0621Case No HQ13X03549[2015] EWHC 1176 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/05/2015
Before
THE HONOURABLE MR JUSTICE CRANSTON
Between
SHEIKH TAHNOON BIN SAEED BIN SHAKHBOOT AL NEHAYANClaimant/IOANNIS KENTDefendant/
Paul Burton (instructed by Davis-Law Associates) for ClaimantJames Laddie QC and Nicholas Gibson (instructed by Simons Muirhead & Burton) for DefendantHearing Hearing dates: 21/04/2015
Judgment

Introduction

[1]This is an appeal brought by the claimant, Sheikh Tahnoon Bin Saeed, against the orders of Master McCloud dated 23 January 2014 and of Deputy Master Eyre (“Master Eyre”) dated 24 November 2014. The issue is whether the orders properly give permission to the defendant to amend his defence and counterclaim in the significant manner he purports to do and to withdraw admissions made in the original. The claimant contends that neither Master complied with the Civil Procedure Rules (“the CPR”) in making these orders.

Background

[2]The facts in this litigation are at present hotly disputed. At base the claimant is an Emirati national who invests, inter alia, in real estate. The defendant carries on various hotel businesses in Greece and Cyprus. The claimant invested money with the defendant for the purposes of the hotel businesses.[3]The claim issued on 8 July 2013 alleged that the defendant owed a sum of some €2.4 million, nearly £2 million, under a Framework Agreement which obliged him to discharge certain obligations defined as the “operational debts” and to indemnify the claimant against certain costs. It was said that the Framework Agreement was entered between the parties on 23 April 2012. It is governed by English law.[4]The defence and counterclaim of 29 August 2013 admitted the Framework Agreement and alleged that the defendants had paid many of the operational debts but not all of them. The counterclaim alleged that the claimant had broken the Framework Agreement to procure the release of certain personal guarantees given by the defendant to banks in respect of loans made in connection with the project. It referred to how the Framework Agreement should be properly construed.[5]A defence to the counterclaim was served on 7 October 2013.[6]The defendant filed a notice of change of solicitors on 21 November 2013.[7]Draft amended particulars of claim were sent to the defendant sometime in December 2013. The amendments were underlined in the ordinary way. Under them the amount claimed was increased to a sterling equivalent of some £18 million, importantly by reference to sums owing under a Promissory Note, introduced in the amendments, and governed by English law.[8]On 10 January 2014, the defendant’s solicitor wrote, enclosing by way of service a costs budget, although stating that they understood that the value of the claim was outside the costs budget regime. The letter stated that the case management conference, which was scheduled for 23 January 2014 was, in their view, premature in light of the substantial amendments to the defence and counterclaim they had advised the defendant to make. Information was still being collected regarding the proposed amendment and it would therefore be a little while before the draft amended pleading would be ready for service. “We are currently of the view that our client will require 35 days after the amended claim is formally served to serve his amended defence.”[9]The costs budget in the form of Precedent H stated:
“Following a review of the claim by [his new solicitors] and preliminary Counsel’s advice the Defendant will be applying for permission to amend his Defence beyond those amendments caused or occasioned by the Claimant’s propossed [sic] amendment to the [particulars of claim] to allege that the relationship between the Claimant and the Defendant was that of a joint venture which gave rise to fiducary [sic] duties. In breach of the duty the Claimant owed to the Defendant the Claimant threatened not to provide any or any sufficient funding to the joint venture and to terminate it without any or any sufficient notice and without any other justification. Such threats were intended to and did induce the Defendant to enter into a number of agreements including the Framework Agreement and the Promissory Note alied [sic] to it. As such, the Framework Agreement and the Promissory Note were procurred [sic] by economic duress or undue influence and as such are voidable by the defendant. Additionally, or alternatively the Defendant is entitled to damages for breach of the joint venture and compensation in lieu of recission [sic].”
[10]The claimant's solicitor replied on 13 January 2014. Although pleadings are not set in stone, the email read, there was no intention for the moment to amend the particulars of claim further. There was no reason to adjourn the case management conference, since the draft amendments to the particulars of claim had been available for some time. “Will you please therefore indicate whether you are agreeable to the amendments.”[11]The defendant’s solicitors served a slightly amended version of the costs budget the same day.[12]The defendant’s response of the 14 January 2014 noted the rejection of the proposal to adjourn the case management conference. The letter acknowledged the power of the court to permit amendments at any stage, but noted that the discretion must be exercised “judiciously”. The letter added:
“[O]ur client will require 42 days from the date of the [case management conference] and re-service to plead to the new claim and to amend his defence and counterclaim in the manner foreshadowed in our client’s costs budget. On the basis set out above our client will consent to the amendment on the usual terms as to costs…”
[13]On 15 January 2014 the defendant’s solicitor wrote again in anticipation of the case management conference. Among other things, the letter said:
“As you are aware, our client now intends to amend his Defence and Counterclaim to allege that there was a joint venture between him and your client which gave rise to fiduciary duties and of which your client has been in breach. In those circumstances, we believe that the litigation arising from the dispute should be conducted in the Chancery Division rather than the Queen’s Bench Division. Accordingly, at the [case management conference] we will be seeking that the proceedings be transferred to the Chancery Division.”
The request to adjourn the case management conference was repeated, on the basis that the time requested to amend the defence was short.[14]On 17 January 2014 the defendant’s solicitor filed a directions questionnaire indicating an intention to call the defendant and at least three other persons as witnesses to the material facts, including the circumstances giving rise to undue influence and duress.

The Masters’ orders

[15]On 23 January 2014, Master McCloud conducted a case management conference. The claimant was represented by Mr Davis, his solicitor, the defendant by Mr Gibson of counsel. The Master began with the proposed transfer to the Chancery Division, which Mr Davis said he opposed. Mr Gibson explained that it was because the proposed amendments to the defence related to fiduciary duties and told the Master that the basis of the amendments was set out in the costs budget. There would be amendments as well consequent on the claimant’s amendments to the particulars of claim. Mr Gibson added that once the claimant had seen the defendant’s amendments he would have an opportunity to reply and in that event the case management conference should be relisted. There followed this exchange:
“MR GIBSON: I understand we are in agreement ---- MASTER McCLOUD: Save on the transfer point then, you are agreed on the basis put forward. MR DAVIS: Yes. MASTER McCLOUD: I am happy to order that. As I say, the pleadings I did not see in the terms of the case but ---- MR GIBSON: No, of course. MASTER McCLOUD: ---- but I can still do it.”
There was then a discussion about transfer to the Chancery Division, with the claimant being asked to reconsider once he saw the amended defence and counterclaim, and about the defendant bearing the costs associated with it. MASTER McCLOUD: ---- but I can still do it.”[16]The Master’s order following the hearing, dated 23 January 2014 but sealed on 14 March 2014, provided that by 24 January 2014 the claimant should file and serve his amended particulars of claim in the form set out in the case management conference bundle. In addition, by 7 March 2014 the defendant should file and serve an amended defence and counterclaim. Other parts of the order provided for relisting of the case management conference, possible transfer to the Chancery Division (automatically should the claimant agree) and an obligation on the defendant to pay the claimant’s costs occasioned by his amended pleading.[17]The amended defence and counterclaim was served on 7 March 2014. It responded to the amendments of the particulars of claim but also introduced, in detail, allegations of breach of fiduciary duty, undue influence and duress, giving “chapters and verse” (as Mr Laddie QC put it) of events leading up to the signing of the Framework Agreement on 23 April 2012. There was no highlighting of the amendments by underlining, since essentially it was a substituted defence and counterclaim, advancing the defendant’s case in a different and more elaborate way.[18]On 12 March 2014 the claimant’s solicitor wrote accepting and acknowledging the amended defence and counterclaim and refusing consent to transfer to the Chancery Division. A fortnight later, on 27 March 2014, he wrote that in light of the amended defence and counterclaim the defendant would need permission to retract the admissions in relation to the Framework Agreement made in the original defence and counterclaim.[19]The claimant’s amended defence to the counterclaim dated 15 April 2014 replaced the original defence to the counterclaim in its entirety. Two points were taken at the outset about the amended defence and counterclaim(1) it amounted to a withdrawal of admissions previously made without the court’s permission and it contained assertions which, if true, should have been pleaded in the original; and(2) it disclosed no counterclaim or cause of action with any or any real prospect of success.[20]The defendant filed an application notice on 22 May 2014, sealed on 26 June 2014, for permission to withdraw admissions, should any permission be necessary; for the claim to be transferred to the Chancery Division; and if no transfer took place, for the adjourned case management conference to be scheduled. There was a time estimate of six hours.[21]Served with the application of 22 May 2014 was a witness statement of Mr PJ Gould, the defendant’s solicitor. After setting out some background, the statement asserted that the defendant’s change of stance could not fairly be characterised as a withdrawal of an admission as normally understood but as a qualification of a position previously accepted. The statement then worked through the factors a court should take into account when considering whether to give permission to withdraw admissions. In terms of the overriding objective, it said, if the defendant were to be prevented from proceeding with his case as amended that may result in a grave injustice to him. The costs of litigating the issues paled into insignificance to the general importance in achieving a fair outcome and there was reference to the sums at stake in the litigation.[22]Mr Gould’s statement then turned to the factors set out in CPR 14PD, 7.2, which deals with withdrawing admissions. As regards the first factor, the grounds upon which the applicant seeks to withdraw the admission, the statement explained that this was at a relatively early stage of the proceedings as a result of instructing a new legal team. An explanation in the statement with respect to the next factor, the conduct of the parties, was deleted. With respect to prejudice, the witness statement asserted that the defendant would otherwise suffer serious prejudice since he would have to proceed on the basis of the case as originally pleaded. The statement added that no prejudice would be caused to the claimant if permission was given, the application was made at an early stage in the proceedings and no date had been set for trial.[23]On 21 May 2014 the defendant’s solicitor wrote that given the nature of the allegations made by his client in his amended pleading he had considered it appropriate that the defendant countersign the statement of truth. The claimant was twice invited to do likewise but Mr Davis, on his behalf, said that he did not think it necessary.[24]There was a hearing on 1 September 2014 before Master Eyre, Master McCloud being indisposed. The claimant’s solicitor, Mr Davis, indicated that the claimant proposed to argue that as well as the defendant being required permission to withdraw admissions, Master McCloud’s order of 23 January 2014 had only granted him permission to make amendments consequential to the claimant’s amended particulars of claim. The claimant was ordered to serve evidence in reply to the defendant’s evidence, but because that evidence was late he applied on 2 October 2014 for an extension of time and relief from sanctions.[25]There was further correspondence between the parties and also with Master McCloud. In an email to Master McCloud on 17 September 2014, the claimant’s solicitor stated:
“My note of what occurred when the matter came before you on 23rd January 2014 was that I met the Defendant’s Counsel Nicholas Gibson and that it was agreed in the corridor that they would consent to our having leave to amend our Particulars of Claim in return I agreeing [sic] to allowing them to amend their Defence and Counterclaim. … No consideration was given by either of us or yourself to the Precedent H Forms in view of the fact the CMC was going to be adjourned for further consideration once the amended pleadings had been exchanged. … It was assumed by myself and Paul Burton of Counsel that the amended pleading of which there was no draft presented to either you or ourselves, would simply be in response to these additional claims by way of quantum, the Claimant’s position having not changed essentially from his original pleading.”
[26]The parties came before Master Eyre on 12 November 2014. Mr Burton was away at the time and the claimant was represented by Mr Tunkel. Near the outset of the hearing the Master commented that the defence and counterclaim appeared to be a substitution, and Mr Laddie QC leading Mr Gibson for the defendant agreed. Mr Laddie QC then developed three arguments: there had not been any admissions, so no permission was required; if there had been an admission, Master McCloud had given permission for its withdrawal on 23 January 2014; and if there had been an admission and no permission had been given, and this was clearly a case where it should be given. Representing the claimant, Mr Tunkel submitted that all Master McCloud was doing was agreeing to an amended defence and counterclaim in principle. Mr Tunkel then submitted that, under Council Regulation (EC) No. 44/2001, the English court did not have jurisdiction to hear the claim regarding the dissolution of the joint venture.[27]During the hearing, Master Eyre remarked:
“I ought to say I am quite satisfied that the [M]aster gave leave and, if she gave leave without seeing the prospective amendments, so be it. But I am quite satisfied that is what happened and that the statements of case in this action ought to be approached in that way.”
The Master saw the jurisdiction point as a submission for a strikeout. To Mr Tunkel’s objection that there had been no satisfactory explanation of the amended defence and counterclaim, the Master said:
“[Y]our side had two, and I think even possibly three, warnings before the hearing in late January that there was going to be a challenge to the validity of the framework agreement and the promissory note based on unfair pressure, and that hearing would have been a perfect opportunity to say “We know about this and may we have a direction that any application for leave to amend the defence and counterclaim be supported by a witness statement explaining how this delay in revealing this important component of the defence comes about?”
But that did not happen, so I am afraid that door is locked now, Mr Tunkel.”[28]Prior to finalising his order, Master Eyre circulated a draft for the parties’ comments. Paragraph 8 provided, “So far as the claimant seeks to object to the amended defence and counterclaim on the ground that the amendments render this court without jurisdiction or on any other ground, he must make those objections by application to be issued and served forthwith for consideration on 22 December 2014”. On 24 November 2014 the claimant’s counsel submitted comments on the draft order, which included a request that the words “or on any other ground” be deleted.[29]Master Eyre’s order, dated 24 November 2014, sealed on 27 November 2014:
“1. The court declares that by her Order of 23 January 2014, Master McCloud must be regarded as having given the Defendant leave to amend in the terms set out in the Amended Defence and Counterclaim filed and served on 7 March 2014. 2. The Defendant accordingly does not require any leave to withdraw any admissions made in his original Defence.”
[30]Paragraph 8 of the order required that the claimant should apply for summary judgment or a strikeout on the ground of article 22 of Council Regulation (EC) No. 44/2001 at the adjourned hearing on 22 December 2014.[31]Subsequently Master Eyre gave as his reasons for making the order the following: “7. At the hearing of the application, the evidence adduced by the Defendant made it obvious that, in the absence of evidence to the contrary from the Claimant, the Master must be regarded as having given the Defendant leave to make the amendments in question. 8. However, that mattered little if at all, because Counsel for the Claimant opposed the Defendant’s application without reference to any evidence, and solely on the basis that: a) The Master must be regarded as having given leave “in principle;” but b) For reasons of European Law, the Defendant’s amendment entailed that this court was now without jurisdiction. 9. The consequence of that approach was that: a) There was no dispute that the Master had given leave; and b) The Claimant was in reality seeking an order either for striking-out or that this court decline jurisdiction. 10. For those reasons, the Defendant’s application is granted to the extent necessary, and the Claimant is ordered to issue and serve an application for striking-out, &c., [sic] to be considered at an adjourned hearing.” a) The Master must be regarded as having given leave “in principle;” but b) For reasons of European Law, the Defendant’s amendment entailed that this court was now without jurisdiction. a) There was no dispute that the Master had given leave; and b) The Claimant was in reality seeking an order either for striking-out or that this court decline jurisdiction.[32]Jay J refused the claimant’s application to this court for permission to appeal, but Warby J granted permission at a renewed oral hearing.[33]In recent correspondence the defendant’s solicitor has confirmed that should the claimant issue an application for summary judgment or strikeout, based upon, or arising from, the amended defence and counterclaim, no assertion would be made that the claimant was precluded from making it.

The claimant’s case

[34]For the claimant Mr Burton submitted that the orders of Master McCloud of 23 January 2014 and of Master Eyre of 12 November 2014 were flawed as there had never been a decision about, or proper exercise of discretion in relation to, the withdrawal of the defendant’s admission under CPR 14 and the amended defence and counterclaim under CPR 17. The admissions were those in the original defence where the defendant admitted that he had entered into the Framework Agreement and further, that he would refer to the Framework Agreement for its full terms and effect. The amended defence and counterclaim involved radical changes, raising breach of fiduciary duty, misrepresentation, economic duress, actual duress and undue influence. All of these factors, Mr Burton said, rendered the Framework Agreement and Promissory Note liable to be set aside. Moreover, Mr Burton added, there was a stand alone ground of appeal because Master McCloud had not given reasons for her order and Master Eyre’s reasons were quite unsatisfactory. There is a duty on judges to give reasons for their decisions: English v. Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; [2002] 1 WLR 2409.[35]Mr Burton submitted that the two declarations in Master Eyre’s order, quoted earlier, were plainly a non-sequitur. Master McCloud could not be considered as having given permission for amendments in terms she had not seen. The defendant made an oral application for permission to amend his defence and counterclaim without an application notice, evidence in support or draft pleading. It was an abuse of process for substantial amendments to be foreshadowed in a few lines in a Precedent H costs budget rather than in accordance with the rules. In any event Master McCloud did not consider the Precedent H costs budget. It was wrong for Master Eyre to regard Master McCloud as having made an order she had not in fact made or reaching a decision she had not expressed herself as having reached. There was nothing in Master Eyre’s reasons justifying his conclusions on this point.[36]Even if Master McCloud had expressly, let alone impliedly, given leave for the amended defence and counterclaim on 23 January 2014, Mr Burton submitted that the separate issue of permission to withdraw admissions was not even in the contemplation of the parties at that hearing, much less the Master’s. The claimant had not seen a draft of the amended defence and counterclaim and had not directed his mind to this issue. Self-evidently neither Master McCloud nor Master Eyre considered any of the issues in paragraph 7.2 of the Practice Direction, CPR 14PD. Having made no such decision neither had expressed any reasons. Master McCloud made no order on the defendant’s application as it was not before her and Master Eyre made the declaration at paragraph 2 of his November order, which is plainly wrong.[37]In summary, Mr Burton submitted that permitting amendments to a statement of case is a significant step in the proceedings and must be completed in accordance with CPR, Part 17. Crucially, the court must consider whether proposed amendments have a real prospect of success before permitting them. Moreover, the issue of the withdrawal of the defendant’s admissions in the original defence have never been tested against the quite separate factors set out in CPR, Part 14. Mr Gould’s witness statement addressing these factors was quite inadequate. Owing to the November order of Master Eyre the claimant has been deprived of his right to have the defendant’s amendments to the defence and counterclaim tested in any shape or form other than on the jurisdiction point under Article 22 of Council Regulation (EC) 44/2001.

Legal framework

[38]CPR 14.1 provides:(1) A party may admit the truth of the whole or any part of another party’s case.(2) The party may do this by giving notice in writing (such as in a statement of case or by letter). […] (5) The permission of the court is required to amend or withdraw admission (Rule 3.1(3) provides that the court may attach conditions when it makes an order). The Practice Direction to CPR Part 14 provides:7.1 An admission made under Part 14 may be withdrawn with the court’s permission.7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including – (a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made; (b) the conduct of the parties, including any conduct which led the party making the admission to do so; (c) the prejudice that may be caused to any person if the admission is withdrawn; (d) the prejudice that may be caused to any person if the application is refused; (e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial; (f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and (g) the interests of the administration of justice.[39]Guidance on granting permission to withdraw was given by the Court of Appeal in Sowerby v. Charlton [2005] EWCA Civ 1610; [2006] 1 WLR 568. In giving the judgment of the court, Brooke LJ said:
“[35] Finally, the unreported judgment of Sumner J in Braybrook v. Basildon and Thurrock University NHS Trust [2004] EWH 3436 (QB) at [45] appears to us to offer valuable guidance on the way in which a court should exercise its discretion when determining whether or not to permit the withdrawal of an admission that was made after an action was commenced. After referring to a number of earlier cases he said, at para[graph] 45: “From these cases and the CPR I draw the following principles. (1) In exercising its discretion the court will consider all the circumstances of the case and seek to give effect to the overriding objective. (2) Amongst the matters to be considered will be: (a) the reasons and justification for the application which must be made in good faith; (b) the balance of prejudice to the parties; (c) whether any party has been the author of any prejudice they may suffer; (d) the prospects of success of any issue arising from the withdrawal of an admission; (e) the public interest, in avoiding where possible satellite litigation, disproportionate use of court resources and the impact of any strategic manoeuvring. (3) The nearer any application is to a final hearing the less chance of success it will have even if the party making the application can establish clear prejudice. This may be decisive if the application is shortly before the hearing.” [36] Above all, the exercise of any discretion will always depend on the facts of the particular case before the court. The words “will consider all the circumstances of the case” have particular resonance in this context.” “From these cases and the CPR I draw the following principles. (1) In exercising its discretion the court will consider all the circumstances of the case and seek to give effect to the overriding objective. (2) Amongst the matters to be considered will be: (a) the reasons and justification for the application which must be made in good faith; (b) the balance of prejudice to the parties; (c) whether any party has been the author of any prejudice they may suffer; (d) the prospects of success of any issue arising from the withdrawal of an admission; (e) the public interest, in avoiding where possible satellite litigation, disproportionate use of court resources and the impact of any strategic manoeuvring. (3) The nearer any application is to a final hearing the less chance of success it will have even if the party making the application can establish clear prejudice. This may be decisive if the application is shortly before the hearing.”
[40]Part 17 of the CPR deals with amendments to statements of case. Under CPR 17.1(2) if a statement of case has been served a party may amend it only with the written consent of all the other parties or the permission of the court. The White Book states at paragraph 17.3.2 that on an application under CPR 17.3 a copy of the statement of case should be filed with the application notice. In considering amendments withdrawing an admission the court must have regard to CPR 14.1 and the practice under that rule. At paragraph 17.3.6 the White Book opines that an application to amend a defence will be refused if it is clear that there is no prospect of success. Prejudice is greater when amendments are sought to be introduced close to the trial date: paragraph 17.3.7.[41]InCobbold v. London Borough of Greenwich, CA, 9 August, 1999, Peter Gibson LJ said this about amendments to the statement of case:
“The overriding objective is that the court should deal with cases justly. That includes, so far as practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party or parties caused by the amendment can be compensated for in costs, and the public interest in the efficient administration of justice is not significantly harmed.”
[42]Cluley v. RL Dix Heating [2003] EWCA Civ 1595 was a case where the judge had allowed amendments and the withdrawal of an admission by the defendant following the expiry of the limitation period for the joinder of other defendants. The judge had acknowledged that the claimant was prejudiced. The Court of Appeal held that notwithstanding the width of her discretion the judge had been wrong to allow the amendments. In his judgment, with which the others agreed, Jonathan Parker LJ highlighted the point that in deciding whether to grant permission to make amendments, the extent to which a party will be prejudiced were permission to be granted must, on any footing, be a highly significant factor: [66].

Discussion

[43]In deciding in this appeal whether in making their orders Master McCloud and Master Eyre were wrong or unjust because of serious procedural or other irregularity, I cannot be blind to how the claimant approached the issue of the amendments to the defence and counterclaim before and at the hearings in January and November. Before the hearing before Master McCloud the defendant warned the claimant in correspondence that there would be substantial amendments to the defence and counterclaim and proposed an adjournment. The claimant’s solicitor, Mr Davis, was put on notice of the nature of the new defence in the directions questionnaire and the Precedent H costs budget. Even if he had not appreciated the exact nature of the amendments being proposed, he must have had some inkling given the reference at the hearing before Master McCloud to fiduciary duties and the appropriateness of transferring the case to the Chancery Division. Master McCloud was in the same boat, although she was somewhat further back since she was not taken to Precedent H. The defendant’s amended pleading clearly went beyond those consequential to the claimant’s amendments to his particulars of claim since the defendant accepted that he should bear the costs. Mr Davis’s only objection was to the proposed transfer to the Chancery Division: in the passage quoted earlier he certainly would have given the impression to Master McCloud that he agreed to the defendant amending his pleading.[44]So pausing there, it seems to me that there can be no objection to Master McCloud’s order giving leave to the defendant’s amended pleading. No doubt it would have been better if she had not given leave until she actually saw the defendant’s amended defence and counterclaim. However, given the circumstances she thought, unsurprisingly, that she was acting in accordance with what both sides proposed. And that is what Mr Davis subsequently accepted in his email to Master McCloud dated 17 September 2014. His assertion in that email (now abandoned) that he had assumed that the defendant’s amended defence and counterclaim would simply respond to the claimant’s amended pleading simply did not hold water in the light of what was said at the hearing, quite apart from what was in the correspondence beforehand. Master Eyre sagely commented at the hearing on 12 November 2014, in the passage quoted earlier, that Mr Davis could have requested protective provisions in the order for when the defendant’s amended pleading emerged but did not do so.[45]It was not until three weeks after the defendant’s amended defence and counterclaim was served that the claimant’s solicitor asserted that permission would be needed to retract admission in the original. There was nothing explicit at this point about the defendant’s amended pleading being in breach of Master McCloud’s order, confirming to my mind both parties’ understanding that it granted permission to an amended defence and counterclaim. The claimant’s amended defence to the counterclaim reiterated the admissions point. When there was an application notice for the adjourned case management conference, it was the defendant not the claimant who lodged it. Before me, Mr Burton said that the claimant was assembling his case that the defendant’s amended pleading had no reasonable prospect of success (a basis inter alia for refusing leave to amend under CPR 17). I find that explanation underwhelming especially when that case has not been made to this day. Finally, on 1 September the claimant raised the need for permission to be given for the defendant’s amended pleading, as well as for his withdrawal of admissions.[46]At the hearing before Master Eyre the claimant then raised the jurisdiction point with the intention, it would seem, of landing a knockout blow. That was the basis on which Master Eyre drafted the order in paragraph 8 at the request of the claimant’s counsel: that objections to the amended defence and counterclaim at the next case management conference be limited to the jurisdiction point.[47]In my judgment there was nothing wrong with Master Eyre’s approach, order or reasons. Before him the claimant accepted that Master McCloud had agreed to the amended defence and counterclaim “in principle”, majored on the jurisdiction point, and subsequently requested that the adjourned hearing for late December 2014 as regards the defendant’s amended pleading be confined to the jurisdiction issue. Again a Master was taking a decision consistent with the claimant’s position. The claimant cannot now credibly seek to appeal against Master Eyre’s order on the basis that there has been a serious procedural irregularity.[48]Further, it cannot be said that Master Eyre was wrong in what he did. The claimant accepted that Master McCloud had agreed “in principle” to amendment of the defence and counterclaim. That was an adequate basis on which to make his order. When Master Eyre’s draft order left the door open to subsequent argument, the claimant closed it. As to the Master never making a separate decision under CPR 14 as to the withdrawal of admissions in the original defence, the defendant made clear before Master McCloud that, at the least, he was alleging a fiduciary relationship between the parties and breach of it. Permission for the withdrawal of the admissions was inherent in the Master’s decision to allow the amended defence and counterclaim. There was no error in the Master not addressing expressly the factors in CPR 14PD, 7.2.[49]In any event I cannot see any prejudice to the claimant in the outcome of the Master’s orders. As Peter Gibson LJ pointed out in Cobbold v. London Borough of Greenwich, CA, 9 August 1999, amendments to pleadings should generally be allowed so long as any prejudice to the other party can be compensated for in costs. Here the amended defence and counterclaim was introduced at a very early stage, and there was no hint of prejudice to the claimant’s position. Moreover, the claimant has never presented any positive case under CPR 17 that there are no real prospects of success with the defendant’s amended pleadings despite having the opportunity to do so. Despite paragraph 8 of Master Eyre’s order, Mr Laddie QC reiterated before me the undertaking in correspondence that the defendant will not object to the claimant applying for summary judgment or a strikeout on that ground with respect to the amended defence and counterclaim. The claimant is thus not shut out from addressing the issue of the defendant’s reasonable prospects of success.[50]As to the factors in considering the withdrawal of admissions under CPR 14, I cannot see how they advance the claimant’s case. In the circumstances of this case the factors very much overlap with those which bear on a decision under CPR 17: the balance of prejudice, the stage of the proceedings and the prospects of success. The prejudice here is not in the least comparable to that in Cluley v. R L Dix Heating, where it was incurable. I have already dealt with the other two factors.

Conclusion

[51]Procedure, it has been said, lies at the heart of the law. But procedural rules are a means to the end of justice. The history of English procedure is that this truth has sometimes been lost. At one time the rules of common law pleading meant complexity and formalism with cases being lost on a technicality. Reforms ultimately confirmed in the Judicature Acts of 1873 to 1875 introduced the modern approach to pleadings. Parties were still bound to their pleadings, but as Sir Jack Jacob noted, that was mitigated by liberal powers of amendment to enable the real controversy between the parties to be addressed. The reforms following Lord Woolf's Access to Justice report reaffirmed the Bentham principle that the rules of the system should ensure that persons with a good claim in law are able to obtain an appropriate remedy or relief from the court. The Overriding Objective of the CPR is to enable the court to deal with cases justly and at proportionate cost. That includes ensuring compliance with the rules but also dealing with cases fairly. As Peter Gibson LJ stated in Cobbold v. London Borough of Greenwich, amendments to a party's pleading should be handled in that spirit.[52]For the reasons I have explained in the judgment while the Masters may not have applied the rules precisely, the appellant has been treated fairly given the manner in which he has pursued his claim over the last 18 months. He is in as good a position to obtain the remedy or relief from the court he seeks as he would have been had the Masters approached the procedural issues differently. There is no prejudice. I dismiss the appeal.

Cited in 1 later judgment