The Nottinghamshire and City of Nottingham Fire Authority v Gladman Commercial Properties

This judgment arises out of a ruling I made during the course of this trial to permit the Part 20 Defendant (Nottingham City Council) (“NCC”) and the Claimant The Nottinghamshire and City of Nottingham Fire Authority (“the Fire Authority”) to rely upon the evidence in particular of Adrian Jones and Tim Render. I granted the Fire Authority and NCC permission to rely upon that evidence. I indicated that I would give reasons in a judgment subsequently handed down. This decision regrettably necessitated a further adjournment of this trial part heard until May. However in order for justice to be done that was necessary as I shall set out in this judgment.

In order to understand the decision it is important to set out the claim briefly. The Fire Authority and NCC seek specific performance of 2 sale agreements dated 19th September 2007 whereby the Fire Authority agreed to sell Dunkirk Fire Station (“the Fire Station”) to the First Defendant Gladman Commercial Properties Ltd (“Gladman”) for £4,200,000. Under a separate agreement on different terms NCC agreed to sell the adjoining land for £1,800,000.

The first agreement was subject to the Standard Commercial Property Conditions First Edition. Gladman failed to complete, a completion notice was served on it on 29th January 2009 and completion has not occurred. The Fire Authority therefore by this action seeks specific performance of that agreement.

Gladman deny that they are liable to complete and seek recision. The justification for recision is an allegation that both the Fire Authority and NCC by the selling agents made a fraudulent misrepresentation set out in the sales particulars dated 7th August 2006 where it was stated “the most appropriate use for this site would be the provision of additional key worker/student accommodation….The Fire Station site alone would accommodate approximately 600 bedrooms”.

It is accepted that there were no grounds for stating that the Fire Station site alone would accommodate 600 bedrooms.

Gladman defend these proceedings by asserting that that statement was made fraudulently. They base their claim on internal documentation which they say shows that at the time of that representation it was impossible to hold that opinion honestly.

Under the first agreement the standard conditions of sale do not exclude liability for fraud that was the result of the decision of Dillon J (as he then was) in Walker v Boyle [1982] 1 All ER 634. In the second agreement the conditions are different but NCC acknowledge that the clause in their contract in order to be valid and effective has to satisfy the reasonableness test set out in section 3 of the Misrepresentation Act 1967. It had failed to adduce any evidence justifying the reasonableness and that was acknowledged by it at the start of the trial by Mr Denyer-Green who appears for them.

The trial has already run for 10 days. The trial was originally estimated for 10 days and at the end of the 10 days the trial had to be adjourned until 11th April 2011 with an estimate of a further 5 days. Between those dates Gladman issued an application against NCC to amend its Part 20 Claim to include a claim for negligent or non negligent misrepresentation in addition to the fraudulent one. That was opposed by NCC.

I directed that if such an application was to be made it should be heard first on 11th April 2011 when the trial resumed. The week before the resumed date for the trial Gladman withdrew their application. There are costs implications arising out of that.

By 11th April 2011 the Fire Authority and NCC had called all of their respective evidence. The only evidence to be heard week commencing 11th April 2011 was that of Gladman’s. Its evidence addresses in effect its reliance upon the alleged misrepresentation. Its evidence cannot of course be of significance as to whether or not the representations were made and whether they were made fraudulently. Their evidence will extend to the question of whether they relied upon any such misrepresentations.

The burden of proving fraudulent misrepresentation is on the alleger i.e. Gladman. During the course of the trial the agents were subject to extensive cross examination by Mr Horne who represents Gladman along with Mr Gill. Significant parts of that cross examination centred on meetings that took place between the 2 agents (a Mr Hargreaves and Mr Bishop) and NCC’s planning officials a Mr Percival, a Mrs Dudley and most significantly a Mr Adrian Jones. At the time of those meetings Mr Jones was NCC’s Director of Planning and Transport. It is said on behalf of NCC (and adopted by the Fire Authority for whom the agents were acting as well) that statements made by Mr Jones at a meeting on 1st August 2005 and a later letter dated 18th May 2006 referring to a conversation that Mr Hargreaves had with Mr Percival and Mr Jones show that the statement made in the sales particulars was in the light of Mr Jones’ statement on those occasions a belief which was clearly honestly made.

Surprisingly in my view NCC did not originally include Mr Jones as one of their witnesses. I say surprising because there were (for example) at least 2 notes of the vital meeting of 1st August 2005 and those notes were different. Mr Hargreaves’ note referred to Mr Jones speaking “speaking off the record”.

It is undoubtedly the case that no sufficient reason had been given for Mr Jones not being a witness. Given the importance of his evidence his continued absence from the trial would undoubtedly have led to a submission by Gladman that the reason he was not called (absent a proper explanation and there was none) is that he would not support NCC’s case see for example Lennox Lewis v Eliades (No. 4) [2005] EWHC 488; Court of Appeal [2005] EWCA Civ 1627.

It ought to have been obvious to those representing NCC from an early start of the cross examination in the trial that Mr Jones’ evidence was going to be vital and his unexplained absence would be the subject matter of criticism by Gladman. In my view that ought to have been blindingly obvious before the trial. I cannot see realistically how NCC were going to run this case based on an honest belief created by Mr Jones without calling him as a witness.

I am therefore unconvinced with the reasons given by NCC as to why he was not initially called and their change of stance as set out in the second witness statement of Richard Murphy dated 8th April 2011.

By the time a case comes to trial in an ideal world it is hoped that all the material necessary to hear and adjudicate on the dispute is complete and put forward in an ordered way for the Judge to be able to consider it. However trials are often untidy affairs. Rightly or wrongly lawyers involved in litigation sometimes miss or fail to spot the significance of particular issues and this only becomes alive either shortly before the trial or during the trial when everyone’s minds are concentrated on the issues. A trial necessarily focuses parties on the issues. By the trial or during the trial matters which appeared to be relevant before often fall away and issues are crystallised. Equally new unforeseen or not sufficiently foreseen issues arise. This is the category into which I would put Mr Jones’ evidence. As I have said for my part I would have thought he ought to have been always considered as a vital witness.

However the most important duty of a trial Judge is to enable “that all parties to a trial have the fullest opportunity to present their cases provided they are presented in a way which is not unfair to the other side”. (Mason & Ors v Mills & Reeves (A Firm) [2010] EWHC 3198 at paragraph 38. It is necessary to weigh all the facts in making a decision as to whether to exercise a discretion to allow this late evidence to be produced.

The case for NCC is straightforward. It accepts the evidence is late but puts forward (inadequate) reasons for the decision not to call Mr Jones beforehand. Nevertheless it submits that if Mr Jones’ evidence is not allowed into trial it might suffer a serious injustice. This is particularly important when NCC (and the Fire Authority public authorities) face allegations of fraud. In addition of course it is alleged that the frauds were made by 2 professionals in carrying out their business. Equally various officers are said to be implicated in the fraud. A finding of fraud therefore will have very serious consequences. It goes without saying in my view that it is essential that they be given the fullest opportunity properly and fairly to present their case to challenge such a serious allegation.

Gladman’s attitude is as follows. First the application to adduce the evidence is made late. The trial has already run for 10 days and all of the Fire Authority and NCC evidence has been led. I should say that that is slightly artificial because it was agreed that NCC which is the Third Party Defendant led its evidence before that of Gladman. This was considered sensible so that all of the allegations of fraud could be put against all the relevant witnesses by the Fire Authority and NCC collectively. It avoided repetition and the potential difficulties caused by interposing the Gladman witnesses between the two sets of evidence of the other parties. That is a small point. The trial is still proceeding and it does not in my mind really matter whether or not the application is made whilst NCC is calling its evidence or before the evidence of all parties is completed.

The Defendants contend that they are prejudiced by this late delivery. First the prejudice is this that Mr Horne has already completed his cross examination of all live witnesses at the time in relation to the fraud allegation. He will have to revisit his cross examination in respect of Mr Jones. That might depending on his answers require him to seek to recall Messrs Hargreaves and Bishop and possibly some of the other planning officials. This does put a burden on him but to my mind it is a classic burden to which good advocates respond with relish. I have not doubt that Mr Horne given a sufficient amount of time will be able to re-familiarise himself with the material to conduct a cross examination of Mr Jones equally as effective as that of the witnesses who have already been called. Indeed in his submissions he said he had already identified 34 documents that he wished to put to Mr Jones. That therefore is a prejudice which to my mind can be addressed by an adjournment.

The next objection is that it will cause a further adjournment of the trial. This week was allocated for Gladman’s evidence. If Mr Jones is called I am confident he would spend 2 days in the witness box given the length of cross examination which Mr Horne conducted on the other witnesses. That would mean that Gladman’s evidence currently timed for 5 days would only have 2.5 days at the most. Due to other commitments it is not possible for the trial to resume before May. That is unfortunate but it is not a disaster. I have already had comprehensive cross examination. I have taken extensive notes, I am aided by a Livenote transcript (I have of course seen the witnesses unlike others who sometimes use transcripts). I have my own recollections and I have already formed my provisional views as to most of the key witnesses (which I communicated to the parties on 11th April 2011.). I do not feel personally that an adjournment to May or June for the rest of the evidence will cause an injustice which will affect my ability properly to recall all the evidence and deal with it fairly as between the parties. There is one point however. It would be inappropriate for a witness to go part heard from week commencing 11th April to late May. Given that and given the inevitability of an adjournment it seemed to me appropriate not to hear any further evidence this week. Logic dictates that Mr Jones goes first. Mr Horne cannot fairly discharge his duties by cross examining Mr Jones this week. It puts undue pressure on him and is unfair to his client.

The final significant factor is the importance of Mr Jones. As I have said had Mr Jones not been called his absence would have been relied upon by Gladman. If I refuse to allow Mr Jones to be called that submission will still be made. However it would be a gross injustice if having ruled that Mr Jones’ evidence could not be relied upon then to go on and decide the case against NCC and the Fire Authority by criticising their failure to call Mr Jones despite the fact that he has been at all material times from 11th April 2011 available as a witness. I cannot conceive of a greater and justified complaint about a decision that would have been made that way.

I do not overlook the fact that NCC apparently made a deliberate decision not to call Mr Jones (apparently because he is no longer employed). That decision was wrong but I do not believe it should be punished and denied an opportunity to call Mr Jones in the present circumstances.

It is necessary for me to remind myself of the principles applicable to a late production of a witness statement. Mr Denyer-Green did not rely on any authorities but submitted that as part of my powers as the trial Judge in effect under CPR 1.1 and 1.4 I had a duty to ensure that the trial was disposed of expeditiously and fairly and that duty extended to allowing these witness statements to be in however late they were. He submitted in effect that I should exercise my case management powers under CPR 3.1 to further the overriding objective and to permit the evidence to be received.

It is instructive to set out the overriding objective. It is sometimes overlooked by former practitioners when they have moved on. The overriding objective 1.1 provides:-

“(1)

These rules are a new procedural code with the overriding objective enabling the court to deal with cases justly

(2)

Dealing with a case justly includes, so far as practable-

(a)

ensuring that the parties are on an equal footing;

(b)

saving expense……

(d)

ensuring that it is dealt with expeditiously and fairly”

CPR rule 1.4 imposes a duty to further the overriding objective by actively managing cases this extends to deciding promptly which issues need full investigation and trial (c) fixing timetables or otherwise controlling the progress of the case (g), and giving directions to ensure that trial of a case proceeds quickly and efficiently (l).

By definition once the trial has started it is incumbent upon the trial Judge to ensure that the trial proceeds as far as possible efficiently and fairly. This is a justice as between the parties but it is also a necessity as regards other court users. Court time which is wasted is lost to others who could have used it. Once a trial starts it is incumbent on the court to finish it as quickly as possible within the confines of the CPR.

Mr Horne referred me to paragraph 32.2.5 of the White Book (2011 Service) as follows:-

“In the usual case, the case management directions will stipulate whatever evidence is to be called …. and the parties by exchange of witness statements… will reveal which witnesses (both expert and lay) they propose to call and the nature of their evidence. The court may entertain in subsequent applications for permission to call further witnesses either during the pre trial stage or even in the course of the trial. The principle that an appeal court is reluctant to interfere with the rulings of a trial Judge is likely to be engaged where there is an appeal against a Judge’s exercise of discretion to grant or refuse a party’s application made in the course of a trial for permission to call further witnesses.”

The paragraph then refers to 2 cases British Sugar Plc v Cegelec [2004] EWCA Civ 1450 and Choudhury v Ahmed [2005] EWCA Civ 1102.

In the former case the Court of Appeal upheld the decision of the first instance judge (His Honour Philip Rayner QC sitting as a judge of the Queen’s Bench Division) to refuse to allow evidence produced 3 days into the trial. The key paragraphs are paragraphs 46-48 of the judgment of Hooper LJ. In paragraph 51 he said:-

“It is well established that this court is loathe to interfere with rulings by a trial Judge on case management issues….”

In the Choudhury case the Judge at first instance refused an application to call additional witnesses after the evidence had closed. The Judge at first instance formed the view clearly that the Claimants in that case made a deliberate decision not to call the relevant witness (he was present in court throughout the trial) as a tactical decision but then relented of it and wished to call him. The Judge considered that having made the decision at the short adjournment not to call him it would not be just to allow them to change their stance. The Court of Appeal held that the decision was within the exercise of his discretion and dismissed the appeal.

Mr Horne accepted frankly that neither case provides any assistance to me as regards principle. That is understandable. When a decision involves an exercise of discretion it is rare to find a decision of an earlier court which will inevitably be on different facts and circumstances that can dictate how a discretion ought to be exercised. It seems to me that the decision to allow the witness statements in or to disallow them is a matter of discretion to be exercised by me as the trial Judge in accordance with the principles set out in the CPR above but with the overriding backcloth in my view of the duty of the courts to ensure that every party has the fullest opportunity fairly and fully to present their case. That however must necessarily be tempered by ensuring that a decision in favour of one party based on that does not unfairly impact on other parties. It is a duty of the court equally to be fair to the party who is not at fault. However I firmly believe that (for example) a decision to exclude evidence should not be made merely because it is late. If during the trial late evidence emerges which is important it is essential that that evidence is heard provided that evidence will not cause a fatal prejudice to the other party. There will be cases when late evidence cannot be properly dealt with by the other side. In such a circumstance it is almost inevitable that the application to adduce the evidence will be refused. On the other hand where late evidence can be dealt with by the other party even on terms as to adjournment in costs the evidence should ordinarily be allowed.

It might be said that this is a “relaxed” attitude to non compliance with the rules. I am not sure what the word “relaxed” means in that context but the whole thrust of the CPR is that parties are not to be punished fatally for mistakes or non compliance with the rules if those mistakes and non compliance matters can be addressed without causing an injustice to the other party.

As I have said above a trial in this case with the denial of the evidence of Mr Jones would proceed on an entirely false basis and would perpetuate potentially a serious injustice as against NCC and the Fire Authority.

These decisions are within the ambit of the trial Judge and are taken against the hurly burly and untidy way in which matters regularly develop in trials. That is the fact of life of trials and I doubt that it will ever change. For some it is a challenge. For others more used to drafting documents and not appearing in trials it is often too untidy and difficult to appreciate.

Nevertheless it is incumbent on a trial Judge to deal with these matters robustly and expeditiously. If the decision is exercised according to the principles set out above ordinarily it should be within the remit of the trial Judge’s discretion. Some trial Judges of course get it wrong. There is therefore a residual power in the Court of Appeal to overturn decisions made by the trial Judge when they are so unreasonable that they could not have been reasonably made. However as Hooper LJ observed in the British Sugar case that should be exercised sparingly.

Sometimes the clearly limited powers are overlooked when (for example) dealing with assessments of witnesses at first instance and the exercise of discretions during the course of a trial and even the analysis of the evidence by the Judge that he has seen and heard when coming to the assessment he is able to make having seen the live evidence (as opposed to merely relying upon selective use of transcripts which can be notoriously ambiguous). Sometimes however it is necessary to exercise the power but it should rarely be exercised.

An instance where the Court of Appeal allowed an appeal because of the way in which the trial was conducted and the judgment was delivered is to be found in London Borough of Haringey v Hines [2010] EWCA Civ 1111.

An important and vital area of a trial Judge is in the assessment of the veracity of a witness as that decision shows. It must always be remembered that people tell lies for many differing reasons and when a witness is found to tell lies it might be fatal to the relevant case but it is not invariably so see EPI Environmental Technologies Inc v Symphony Plastic Technologies [2005] 1 WLR 3456 and Attorney General of Zambia v Meer Care & Desai & Ors [2008] EWCA Civ 1007.

Despite the obvious advantage the first instance Judge has in dealing with matters as they arise in the trial robustly, assessing the impact of those decisions (relaxed or otherwise) and assessing witnesses the Court of Appeal sometimes disregards its limited role as set out (for example) in the British Sugar case. Thus in Thorner v Majors [2009] UKHL 18 the House of Lords overturned a judgment of the Court of Appeal where Lloyd LJ gave the leading judgment.

In so doing they made the following observations:-

“16 Lloyd LJ, with whose judgment in the Court of Appeal Ward LJ and Rimer LJ agreed, accepted not only the judge's findings of primary fact but accepted also the inferences drawn by the judge from those findings. They were, said Lloyd LJ, "in effect immune from challenge" (para 66). But the Lord Justice was not satisfied that the judge's factual findings constituted a sufficient basis for a successful proprietary estoppel claim (see para 67). His doubt appears to have been based on the absence of an explicit finding that Peter had intended David to rely on his (Peter's) remarks (see para 72)

"… the judge did not in terms consider whether the implicit statement which he found to have been made in 1990, to the effect that Peter intended David to succeed to the farm on his death, was intended to be relied on."

The Lord Justice went on, in paragraphs 73 and 74, to say this -

"73.

It may be that the judge was too much influenced by the fact that Peter did intend that David should inherit the farm, remained of that view, put it into effect by his 1997 will, and did not change his intention despite the revocation of that will …

74.

In my judgment … David's claim in the present case does not satisfy the tests for [a proprietary estoppel] claim, because the statement made implicitly in 1990, as recorded by the judge, did not amount to a clear and unequivocal representation, intended to be relied on by David, or which it was reasonable for him to take as intended to be relied on by him …"

17 My Lords there seems to me, if I may respectfully say so, to be an inconsistency between, on the one hand, the Lord Justice's acceptance of the judge's finding that it was reasonable for David to have relied on Peter's representations that he (David) would inherit Steart Farm and, on the other hand, the Lord Justice's conclusion that no representation had been made by Peter that it had been reasonable for David to have taken as intended to be relied on. Whether the representations made by Peter to David about the ownership of Steart Farm after his (Peter's) death were intended by Peter to have been relied on by David must surely depend upon an objective assessment of Peter's intentions in making the representations. If it is reasonable for a representee to whom representations have been made to take the representations at their face value and rely on them, it would not in general be open to the representor to say that he or she had not intended the representee to rely on them. This must, in my opinion, particularly be so if, as here, the representations are repeated or confirmed by conduct and remarks over a considerable period. There may be circumstances in which representations cannot reasonably be taken to have been made with any intention that they should be acted on, or with any intention that, if acted on, rights against the representor would ensue, but a finding that it was reasonable for the representee to have relied on the representations, and to have acted to his or her detriment in that reliance, would, in my opinion, be inconsistent with the existence of any such circumstances. It could not be thought reasonable for a representee to rely on a representation that, objectively viewed, was not intended by the representor to be relied on. To put the point in context, the judge's factual finding that it was reasonable for David to have relied on Peter's representation that he (David) would inherit Steart Farm, a finding accepted by Lloyd LJ, carries with it, in my opinion, an implicit finding that it was reasonable for David to take the representation as intended by Peter to be relied on”. (Per Lord Scott)

“60 I respectfully consider that the Court of Appeal did not give sufficient weight to the advantage that the trial judge had in seeing and hearing the witnesses. They concentrated too much, I think, on the 1990 incident of the bonus notice. That was certainly an important part of the narrative. For David it marked the transition from hope to expectation. But it did not stand alone. The evidence showed a continuing pattern of conduct by Peter for the remaining 15 years of his life and it would not be helpful to try to break down that pattern into discrete elements (and then treat each as being, on its own, insignificant). To my mind the deputy judge did find, in paras. 94 and 98 of his judgment, that Peter's assurances, objectively assessed, were intended to be taken seriously and to be relied on. In the end it is a short point; I do not think that there was sufficient reason for the Court of Appeal to reverse the trial judge's careful findings and conclusion. I do not share the Court of Appeal's apparent apprehension that floodgates might be opened, because cases like this are fairly rare, and trial judges realise the need to subject the evidence (whether as to assurances, as to reliance or as to detriment) to careful, and sometimes sceptical, scrutiny (Jones v Watkins is a good example of an exaggerated claim that was rightly dismissed by the Court of Appeal on the ground of no sufficient detriment)”. (Per Lord Walker)

“79 Furthermore, if (as I think) Lloyd LJ also held at http://www.bailii.org/ew/cases/EWCA/Civ/2008/732.html[2008] EWCA Civ 732, para 72 that it was not open to the Deputy Judge to find that it was reasonable for David to have understood the statements as he did or to have relied on those statements as he did, I do not consider that those were conclusions which were properly open to the Court of Appeal. It is, at any rate at first sight, a little surprising that, having concluded at http://www.bailii.org/ew/cases/EWCA/Civ/2008/732.html[2008] EWCA Civ 732, para 66, that it was not open to them to interfere with the Deputy Judge's logically anterior findings, including his inferences as to the meaning of the statements, the Court of Appeal then concluded, at http://www.bailii.org/ew/cases/EWCA/Civ/2008/732.html[2008] EWCA Civ 732, para 72, that it was open to them to interfere with the subsequent inferences the Deputy Judge had drawn. I accept that there is no necessary inconsistency between the two conclusions, but, particularly given the full and careful consideration given to all the issues by the Deputy Judge, and the very close connection between the issues involved, the contrast between the views expressed in those two paragraphs is striking.

80 Perhaps more importantly, the meaning to be ascribed to words passing between parties will depend, often very much, on their factual context. This is particularly true in a case such as this, where a very taciturn farmer, given to indirect statements, made remarks obliquely referring to his intention with regard to his farm after his death. At trial, there was much evidence about the relationship between Peter and David, and about Peter's character. Consequently, the Deputy Judge was far better able than any appellate tribunal (even with the benefit of transcripts of the evidence) to assess not only how the statements would have been intended by Peter and understood by David, but also whether any such understanding and any subsequent reliance by David were reasonable. His very full and careful judgment demonstrates that the Deputy Judge took full advantage of this ability, as the observations of Lloyd LJ at http://www.bailii.org/ew/cases/EWCA/Civ/2008/732.html[2008] EWCA Civ 732, para 66 effectively acknowledge.

81 That does not, of course, mean that the Court of Appeal had no power to reverse the first instance decision on the ground that David's understanding of, or reliance on, Peter's statements was unreasonable. However, particularly in a case such as this, where the facts are unusual and the first instance judge has made full and careful findings, an appellate court should be very slow indeed to intervene. It may well be that the Court of Appeal took the view, advanced before your Lordships, that the question of how Peter's statements should reasonably have been understood was a matter of law, and was therefore an issue on which an appellate court was freer to intervene than on questions of primary fact (such as what was said by Peter or how it was understood by David) or of inferences from primary fact (such as what Peter, who could not of course give evidence, intended when making the statements)”. (Per Lord Neuberger)

Finally I was referred to the recent Court of Appeal decision (Lloyd LJ delivering the lead judgment) in the Mills & Reeves decision [2011] EWCA Civ 14. That was a decision of the Court of Appeal on an application to re-amend the Particulars of Claim made at trial. It overturned my decision permitting the amendment. It was submitted that that case had significance as to how late applications should be considered by a trial Judge on pleadings. It was also submitted that the material set out in that decision were clearly also relevant to a decision as to whether or not late witness statements should be adduced.

In the Mills & Reeves case the application at trial was to re-amend the Particulars of Claim. The factual background leading to that necessity is set out in my judgment (2010 EWHC 3198). I granted permission to re-amend. In so granting the re-amendment I said this:-

“PRINCIPLES AS TO AMENDMENTS

36 In my judgment the general principles are set out in paragraph 17.3.5 and in particular the observations of Peter Gibson LJ in Cobbold v Greenwich LBC 9/8/99 (unrep):-

“The overriding objective (of the CPR) is that the court should deal with cases justly. That includes, so far as practical, 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 caused by the amendment can be compensated for in costs, and the public interest of the administration of justice is not significantly harmed”

37 The third matter raised by Mr Simpson QC was prejudice. If of course there is prejudice which might be caused by a proposed amendment which cannot be resolved or dealt with that is a substantial factor that almost invariably will lead to a refusal of the application. There is no suggestion that the costs that have been wasted will not be paid to the Defendants. They will therefore be fully paid for the financial cost of this adjournment. I accept that the proceedings are stressful (but no more stressful for them than the Claimants) and that the presence of the proceedings unresolved will be prolonged by the consequences of the adjournment. However that period as I have said is a relatively short one. They will be required to face a new case. However the evidence is not likely to be greatly lengthened as it involves primarily looking at legal issues and expert evidence. It is true as I have said that the case is differently presented but the mere fact that the case is differently presented is not prejudice to the Defendants in this situation in my view. It must be appreciated that the case is not statute barred. No principle of estoppel arises or prejudice can be relied upon merely because the Defendants face a new case for the first time.

THE CLAIMANTS’ POSITION

38 The claim is a substantial one. It represents at around 30% of the value of Mr Swain’s estate. If I refuse the Claimants permission to re-amend the trial will proceed on what the Claimants will perceive as the wrong basis. That is therefore in my view an injustice. The injustice is exacerbated because the Claimants will then be deprived (they will see) of an arguable case to seek to recover a large sum of money from the Defendants. It would be an affront to justice in my view to allow a trial to proceed on a false and artificial premise created by the refusal of the amendment. As Peter Gibson LJ observed, an important duty of the court is to ensure that all parties to a trial have the fullest opportunity to present their cases provided they are presented in a way which is not unfair to the other side. It is not said on behalf of the Defendants that they cannot meet these amendments in time for the adjourned trial. It is not said that they are seriously prejudiced in my view by the relatively short delay. It is not said that they have been prejudiced by the way in which the Claimants have first put forward such a claim, withdrawn it and now seek to reinstate it beyond the fact that the case has taken a different turn.

39 Taking all of those factors into account it seems to me that they do not outweigh the fundamental need to ensure that the Claimants are entitled to a just and comprehensive hearing of their complaints against the Defendants. To deprive the Claimants of a right to do that by refusing this Re-Amendment is by far a greater injustice than anything that the Defendants appear to suffer as a consequence of permitting the amendment”.

The Court of Appeal overturned my decision (2011 EWCA Civ 14 Lloyd LJ giving the judgment) in the course of delivering his judgment Lloyd LJ said this:-

“78 The judge's grant of conditional permission to re-amend on 24 November and his refusal of the Defendants' application to disallow it on 10 December go together, in substance. Both required the exercise of a discretion by the judge. An appellate court can only interfere with such an exercise if the judge has misdirected himself; that is particularly so where the decision is one of case management, as these are, and maybe yet more so when the judge is the trial judge. The judge's reserved judgment on 6 December addressed the relevant issues. The points that he considered include nothing other than relevant topics. In that sense, it cannot be said that there is any relevant matter that he failed to take into account, or that he had regard to any irrelevant matter. He set out his understanding of the amendment, which corresponded with that of Mr Simpson and that of Mr Mathew when drafting the amendment, as well as his view of the original case, and the need for an amendment to rely on a wider case. He referred to the need for supporting evidence, and to his adoption of the course of allowing the amendment conditionally, subject to putting in evidence. As relevant to discretion, he referred to the earlier history of amendment in the case, which he rightly said was relevant but not in itself decisive. He referred to the principles as regards amendment. His reliance on what Peter Gibson LJ said in Cobbold (see paragraph [32] above) is unfortunate, given what had been said in Worldwide Corporation v GPT and other cases, but the judge had not been shown that decision of the Court of Appeal, and had probably seen no more of Cobbold than the passage which he quoted, it being set out in the notes to the White Book. ”

79 He then referred to issues of prejudice. He said there was no issue as to compensating the Defendants for costs thrown away. The proceedings were stressful, but for both sides. The adjournment would be fairly short, the new case would not be greatly lengthened, and it was not said for the Defendants that they could not meet the case at the resumed trial. On the other side the Claimants (as he saw it) would otherwise be proceeding to trial on a false and artificial basis, because of the dim view he took of their original case. He also had regard to the substantial size of the claim as a reason for not depriving the Claimants of the ability to put it forward. All of those are relevant factors.”

He observed that the unreported decision of the Court of Appeal in Worldwide Corporation v GPT [1998] EWCA Civ 1894 was not referred to me. As he said (paragraph 69) it is not referred to in the White Book relevant paragraphs 17.3.5 and 17.3.7 in relation to late amendments either. In paragraph 17.3.5 Peter Gibson LJ’s judgment in Cobbold v Greenwich LBC 9/8/90 (unreported) is referred to. As is said in the note that decision has been relied upon in many cases both in the first instance and on appeal. The relevant part of the judgment is this:-

“The overriding objective (of the CPR) 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 the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party caused by the amendment can be compensated for in costs, and the public interest of the administration of justice is not significantly harmed”.

It could be said that that is a “relaxed view” to amendments. In fact it states nothing more than was the practice before the CPR in the light of the greater flexibility given to Judges under the CPR.

Lloyd LJ in Mills & Reeves appears to attach some significance to the failure of the White Book (and the effect of Counsel before me) to refer to the Worldwide decision.

A careful examination of the Worldwide decision does not in my view show any difference from the principles subsequently set out by Peter Gibson LJ in the Cobbold case. It would be surprising if it did bearing in mind the fact that Peter Gibson LJ was in both decisions.

In the Worldwide decision Waller LJ said this:-

“Mr Brodie’s submission before the judge, and before us, was to the effect that it was almost as a matter of right that an amendment should be allowed at almost any time provided the other party could be compensated in costs, and he referred us to the notes in the Supreme Court Practice 1999 20/8/6 and the familiar dicta there quoted, particularly that of Bowen L.J. in Cropper v Smith (1884) 26 Ch.D. 700 at 710-711 where he said:- ”

"it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights .... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace.... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right”.

Waller LJ did not regard the principle as stated by Bowen LJ as being as a matter of right. He plainly was of the view that all factors had to be taken into account and in particular the impact of other parties which cannot always be compensated for merely by payment of costs. In so doing he said this referring to a judgment of Millett LJ as he then was in Gale v Superdrug Stores Plc [1996] 1 WLR 1089:-

“By attempting to make a last minute amendment a trial has had to be interrupted by argument over some days, the challenge to the judge’s order has had to be dealt with by the Court of Appeal as a matter of urgency with serious disruption to its list and other litigants, and if the amendment was allowed there would have to be a further delay in the trial coming on and/or a last minute lengthening of the trial which may cause serious inconvenience in the Commercial Court and thus to other litigants.

The appreciation of the injustice to other litigants and the damage to parties in trials being delayed which cannot adequately be compensated by an order for costs has led the court to a more interventionist approach in the management of trials, and has furthermore led to appellate courts being very reluctant to interfere with decisions of judges who with all those interests in mind have taken decisions at interlocutory stages. Mr Brodie referred us to the judgment of Millett LJ in Gale v Superdrug Stores Plc [1996] 1 WLR 1089 at 1098E where he said this:-

"Litigation is slow, cumbersome, beset by technicalities, and expensive. From time to time laudable attempts are made to simplify it, speed it up and make it less expensive. Such endeavours are once again in fashion. But the process is a difficult one which is often frustrated by the overriding need to ensure that justice is not sacrificed. It is easy to dispense injustice quickly and cheaply, but it is better to do justice even if it takes a little longer and costs a little more.

The administration of justice is a human activity, and accordingly cannot be made immune from error. When a litigant or his adviser makes a mistake, justice requires that he be allowed to put it right even if this causes delay and expense, provided that it can be done without injustice to the other party. The rules provide for misjoinder and non-joinder of parties and for amendment of the pleadings so that mistakes in the formulation of the issues can be corrected. If the mistake is corrected early in the course of the litigation, little harm may be done; the later it is corrected, the greater the delay and the amount of costs which will be wasted. If it is corrected very late, the other party may suffer irremediable prejudice.

The general principles which govern the court’s approach to an application to amend the pleadings is to be found in the well known and often cited passage in the judgment of Bowen L.J. in Cropper v Smith (1884) 26 Ch.D. 700, 710-711, with which A.L. Smith L.J. expressed his “emphatic agreement” in Shoe Machinery Co. V  Cutlan [1896] 1 Ch. 10, 112.

There are numerous other authorities to the same effect. In Clarapede & Co. v Commercial Union Association (1883) 32 W.R. 262, 263 Sir Baliol Brett M.R. said:

“However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; ...”

I do not believe that these principles can be brushed aside on the ground that they were laid down a century ago or that they fail to recognise the exigencies of the modern civil justice system. On the contrary, I believe that they represent a fundamental assessment of the functions of a court of justice which has a universal and timeless validity”.

He also went on to refer to similar observations in MGM Pension Trustees v Investco Asset Management Ltd & Ors (Lexis 20th December 1993) and Ashmore v Corporations of Lloyds Ltd [1992] 1 WLR 446.

With regard to late amendments he said this:-

“Approach to last minute amendments

Where a party has had many months to consider how he wants to put his case and where it is not by virtue of some new factor appearing from some disclosure only recently made, why, one asks rhetorically, should he be entitled to cause the trial to be delayed so far as his opponent is concerned and why should he be entitled to cause inconvenience to other litigants? The only answer which can be given and which, Mr Brodie has suggested, applies in the instant case is that without the amendment a serious injustice may be done because the new case is the only way the case can be argued, and it raises the true issue between the parties which justice requires should be decided.

We accept that at the end of the day a balance has to be struck. The court is concerned with doing justice, but justice to all litigants, and thus where a last minute amendment is sought with the consequences indicated, the onus will be a heavy one on the amending party to show the strength of the new case and why justice both to him, his opponent and other litigants, requires him to be able to pursue it.

Approach of the judge

What Mr Brodie must demonstrate is that it is arguable that the judge in this case misapplied the principles and/or was plainly wrong.

Far from him having misapplied any of the principles it seems to us that he directed himself in relation to them impeccably. He recognised that generally amendments will be allowed to reflect the true issues between the parties (page 11 transcript of judgment); he recognised that lateness may not be a ground for refusing leave itself (page 14); he was not persuaded that the consideration by the defendants was as substantial an exercise as Mr Scott QC for the defendants had argued, but thought it would be wrong to require the defendants to proceed to trial without a reasonable opportunity to consider and discuss the implications (pages 19, 21 and 24). He considered the merits of the newly pleaded case and concluded that the case was insubstantial on the basis that the amended pleading was in effect an allegation of an agreement to agree, and he did not feel it necessary to consider other points (page 28)”.

Lord Justice Peter Gibson was also one of the members of the court. He also gave the oft quoted judgment in the Cobbold case. The difference between the Cobbold case and the Worldwide Corporation case is that the former was made when the Civil Procedure Rules were in force. In that context it is hardly surprising that the Worldwide case has not come to the fore. Peter Gibson LJ’s judgment in Cobbold which is in the era of CPR is therefore the only relevant judgment on this area in my view. The oft quoted part of the judgment as set out in the White Book in my view does in reality nothing more than add on to the existing practice as regards amendments the wide discretions and factors to be taken into account as a result of the CPR. This is one of many instances in my view where the CPR codified what was good practice under the RSC. It was never enough merely to obtain an amendment by proffering the costs before the CPR came into force. Equally it was never enough to oppose an amendment merely because it was late. The better view was always to look at the big picture and the context in which the amendments were being sought. That is all in my view what the Worldwide case said and that is all that the Cobbold case said. I do not believe that Rix LJ said anything more than that in Savings and Investment Bank Ltd v Fincken [2003] EWCA 1630 (quoted in Mills & Reeves at paragraph 68).

In paragraph 72 of the Mills & Reeves judgment Lloyd LJ said this:-

“As the court said, it is always a question of striking a balance. I would not accept that the court in that case sought to lay down an inflexible rule that a very late amendment to plead a new case, not resulting from some late disclosure or new evidence, can only be justified on the basis that the existing case cannot succeed and the new case is the only arguable way of putting forward the claim. That would be too dogmatic an approach to a question which is always one of balancing the relevant factors. However, I do accept that the court is and should be less ready to allow a very late amendment than it used to be in former times, and that a heavy onus lies on a party seeking to make a very late amendment to justify it, as regards his own position, that of the other parties to the litigation, and that of other litigants in other cases before the court.”

I would respectfully disagree with his observation that the court is less ready to allow a very late amendment than it used to be in former times and that a heavy onus lies on a party seeking to make a very late amendment to justify it as regards its own position and that of other parties in the litigation and that of other litigants in other cases before the court. If by that paragraph he is seeking to suggest that late amendments should be more restrictively considered now and some kind of overriding onus is put on the party seeking to make a very late amendment, I would respectfully suggest it is not supported by authority and is in fact contrary to Cobbold and the CPR.

To give one factor a higher status creates difficulties and might fetter the discretion conferred on the Judge. He should consider all factors (including lateness and prejudice) and come to a conclusion weighing all factors but not giving one (lateness) a greater significance. Of course a Judge will look at the consequence of the lateness of the application but if there is no prejudice, no real delay it is difficult to see how lateness of itself should be a decisive factor.

In my view such a gloss is not justified either under the Worldwide case or under the Cobbold case. In so far as the judgment seeks to do that in my view that is contrary to the principles set out in the Cobbold case. The whole purpose of the CPR was to grant Judges a flexible approach in dealing with the application of the rules, failing to comply with the rules and any matters that were necessary to perpetuate the overriding objective. That objective is plainly designed to ensure trials proceed on a merit basis so that every party has the fullest and fairest opportunity to present its case. No gloss on that in my view should be put with regard to late amendments. They should be treated in exactly the same way as any other decision that a Judge makes in the furtherance of the overriding objective. The fact that an amendment is late is something which is weighed in the scales of the judicial decision. All the other factors have to be born in mind. It is true that the courts have been less willing to grant amendments that are late simply on the basis of costs of the adjournment being paid. That is understandable. Trials are an expensive business, litigation is stressful and the courts generally are full. If an adjournment occurs usually but not invariably that will have an impact on other parties.

I refer to paragraphs 78-79 of Lloyd LJ’s judgment in paragraph 40 above.

In relation to the Cobbold case Lloyd LJ said this:-

“Since the judge did not have the benefit of the Worldwide Corporation case, nor of any of the more recent cases in which it has been followed, it is understandable that he should not have required the Claimants to justify more strongly the lateness of their application. His reliance on what Peter Gibson LJ said in Cobbold was, in my judgment, mistaken and wrong in law, though understandable because of the limited citation to him. The quotation from Cobbold in the notes to the White Book is accurate, but reference to the judgment shows that it was much more appropriate in that case to permit the late amendment. For one thing, Greenwich had provided the material on which the new case was made to the tenant's solicitors months beforehand, and had made it clear well in advance that they intended to run the new case. For another, in the end it was not necessary to adjourn the trial date as a result of the amendment. Accordingly, while the statement quoted from Cobbold is entirely proper in itself, it does not provide sure guidance in a case such as this where the amendment had not been prepared for well in advance but came out of the blue, and where permitting the amendment to be made did require the trial to be adjourned. In such a case Worldwide Corporation v GPT is far more relevant, and it is a great pity that the judge did not have the benefit of it on 24 November. Even apart from that, however, it seems to me that the judge was wrong to allow the pleading to go forward with the new paragraph 8.1A.3, both because it is not clear enough or full enough in itself to show the Defendants what the case is that they have to meet, and because, though not appreciated at the time, it was equivocal and therefore embarrassing and unsatisfactory as to the case that was to be put forward. ”

It is not said that the Cobbold case is wrongly decided. Indeed it is the later of the two cases and is one under the CPR. I am faced with a conflict as to the relevant criteria arising from the Cobbold case and the Mills & Reeves decision referring to the earlier Worldwide decision. This puts me in a difficult position faced with conflicting authorities. In my view I should follow the Cobbold decision in preference to the other authorities for the following reasons.

With respect to Lloyd LJ if in so far as he seeks to find in the Worldwide Corporation and thus his decision a requirement to justify things more strongly when they are lately made I would disagree that that is a correct analysis either of Worldwide and cannot be squared with Cobbold which is a decision binding on Lloyd LJ in respect of the application of these principles under the CPR.

It is inevitable in my view that if the Mills & Reeves decision stands a further gloss which is not justified under the application of the CPR as identified in Cobbold will inevitably arise. This will lead to further complicating satellite litigation at trials and will further handicap what ought to be the full unfettered power of the Judge to decide these applications in the light of all circumstances as they appear to him. Lateness is a factor but it should not be given an elevated status above any other factor in ensuring that justice is done between the parties. One must never lose sight of the fact that that is the overriding duty of the courts to come to a just and correct result and if for one reason or another because of the creation of a gloss or an over technical approach to pleadings a party is unable to deploy a case or give evidence which justice requires it to be able to deploy then that is not an appropriate exercise of a discretion. I say that of course that in allowing late amendments and late introduction of evidence the position of all parties has to be taken into account. If there is no prejudice (and there was none identified or made out by the Defendants in the Mills & Reeves case) it is difficult to see how an application to amend late should be disallowed because of the super imposition of a higher onus to justify. As the Gale case said people should not be punished for mistakes. The consequence of disallowance of an amendment like this if the trial is subsequently lost when there was a case that could have been run if it had been re-pleaded simply denies justice and even worse potentially transfers the compensation to the disappointed party’s lawyers.

No guidance is given as to what this means. Does it mean a higher burden of proof and if so what? Does it mean that an explanation is to be given (possibly involving questions of privilege?). What would happen if the advocates say simply “I overlooked it”? One can see all manner of arguments being deployed to resist late applications. One can see a great potential for injustices to occur and decisions made that merely transfer the liability to the unsuccessful applicants legal team.

It is not of course for me to revisit the Court of Appeal’s decision on the actual case. It would be quite wrong to do that because the trial has already taken place and this is not the place to do it. I can do no better than echo what Arnold J said when he delivered judgment in the case. The trial proceeded shorn of the amended pleadings. The Claimants attempted to argue that the broad principle was still in the existing pleadings. (Called in the judgment the Alternative Case). Arnold J on the first day of the trial ruled that it was not open to the Claimants to advance any case which was not dependant on knowledge of the heart procedure. He confirmed this in his judgment (paragraph 186) but rejected the Defendants’ submission that the Claimants could not rely upon any breach prior to 16th January 2007 including any breach of duty in a Letter of Advice. Thus pre 16th January breaches could be addressed but only by reference to knowledge of the heart operation or procedure. In paragraph 202 he said this:-

“It seems to me that the introduction of a reasonably competent private client tax team would have led to them (i) advising Mr Swain and his daughters that there could be potential tax consequences in the event of Mr Swain’s death after completion of the MBO, particularly bearing in mind that some of the consideration was deferred for up to ten years, (ii) enquiring what tax mitigation and/or estate planning Mr Swain had undertaken, and (iii) upon receiving the answer “essentially none”, offering to advise him as to his options. If one pauses there, that is in a nutshell the case the Claimants wanted to plead in the re-amendment to the Particulars of Claim which the Court of Appeal disallowed (although that pleading also specified particular options which it was said that Mr Swain should have been advised about). It is therefore not open to the Claimants to advance that case without more. ”

Thus Arnold J is referring to the pleadings that were disallowed by the Court of Appeal in its judgment. He had rejected the primary case which was linked to the heart procedure. Nevertheless he went on to consider the alternative basis and his judgment said this :-

“Causation

In the light of my conclusions on the primary issue of breach of duty, the secondary issue on causation does not arise. I will nevertheless deal with it in case I am wrong about breach of duty.

In the light of the evidence, I am satisfied that, if Mr Swain and his daughters had been advised to consider deferring completion of the MBO until after the heart procedure because of the risk of adverse tax consequences if Mr Swain were to die during or a result of the procedure, then they would have decided to delay the MBO. As at 31 January 2007 it had taken them over seven months (i.e. since 27 June 2006) to get to the point of being ready to complete. Completion had already been postponed several times. There was no particular urgency to complete on 31 January 2007, and no reason why completion could not have been delayed for, say, another three weeks. I accept the Claimants’ evidence that Mr Swain would have wanted to avoid even a small risk of a large IHT bill and a substantial CGT bill. Counsel for Mills & Reeve argued strenuously that it would not have been rational for a man in Mr Swain’s position to delay such an important transaction because of such a small risk. In my view this argument is based on the fallacy that Mr Swain would have approached the matter on the basis of a cold, mechanical calculation of probabilities. I am quite sure that he would not have approached the matter in that way. As studies of the psychology of risk perception show, human beings rarely do.

Mr Comer’s evidence was clear that the MBO team would have agreed to such a postponement if Mr Swain had requested it. As Mr Comer explained, it was not their idea to enter into the MBO at all, but Mr Swain’s, and they were far from desperate to complete it. Nor would they have sought to renegotiate the terms. Equally, it is clear from Mr Webb’s evidence that, not only would there have been no difficulty with the MBO team’s financing whatsoever if completion had been deferred for up to three months from 29 January 2007, but also there would in all probability have been no problem in the event of a longer delay.

Accordingly, if the Claimants were to succeed on their primary case of breach of duty, I would accept that the losses claimed were caused by that breach of duty. As for the Claimants’ alternative case, if the Claimants succeeded in establishing a duty which included a duty to suggest deferral of the MBO by that route, then again I would accept that the losses claimed were caused by that breach of duty.”

It was of course not open to the Claimants to argue this wider case because it had been removed by the decision of the Court of Appeal. Arnold J commented on that in the last paragraph of his judgment as follows:-

“Conclusion

It would be entirely understandable if, at the end of this case, Claire, Abby, Gemma and Christa were left with a strong feeling that they had been ill-served by the legal profession. Nevertheless, for the reasons I have given, I conclude that the Claimants’ claim must be dismissed”.

A decision to exclude a late amendment or witness statement where there is no identifiable prejudice that cannot be addressed can lead to unfairness in the trial procedure and it is essential that the courts ensure that the Overriding Objective is followed and all parties have a full and fair hearing consistent with that approach.

In my view the correct approach to late applications is that set out in Cobbold.

I accept the submission that the Mills & Reeves case principles (if any) are equally applicable to a question of whether or not late evidence should be admitted. There is however one general difference. An amendment might introduce something entirely new which is not before the court. That of course can also be said of fresh evidence but will be rarer.

I would therefore be of the opinion that on the question of the admission of late evidence the same criteria as set out by the above are applicable to the Cobbold decision. I do not believe that the person seeking to introduce the evidence has a heavy onus to justify it merely because it is late. Lateness can only be one factor. The essential exercise of the Judge is to take into account all factors that are present in the case and weigh them all together and come to the appropriate conclusion in accordance with his duties as enshrined in the Civil Procedure Rules. I believe that is precisely what Peter Gibson LJ said in Cobbold and I see no reason for any basis to suggest it is incorrect.

I must consider the admission of Mr Jones’ evidence on the basis that the Mills & Reeves case has no application and also on the basis that the Mills & Reeves case in the Court of Appeal has introduced a further gloss. In this case in my view it does not actually matter. The case for the introduction of Mr Jones’ evidence is overwhelming. I have set out above why I consider that to be the case. Whatever the principles in my view NCC have satisfied the relevant burden. To refuse to allow Mr Jones’ evidence to go in and then in effect to allow Gladman to criticise NCC because Mr Jones was not giving evidence when he can be brought before the court with no serious prejudice to Gladman would be grotesque.

Therefore for all of those reasons I have concluded that it was right to allow the evidence to be adduced. However that has led to an adjournment of the trial to enable Gladman properly to prepare itself for that evidence. I have reserved the question of costs but there will be heavy costs consequences. It cannot be overlooked that if Mr Jones had been proffered as a witness before the trial the trial might not have taken place at all. I will not pre-empt the substantive issues in this judgment however.