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Civil Procedure: Swain-Mason v Mills & Reeve [2011] EWCA Civ 14, January 20, 2011 CA

The Court of Appeal considered the principles relating to applications for permission to amend statements of case made at the beginning of the trial.

The claim itself was a professional negligence action against the Defendant firm of solicitors relating to some tax advice. Simply put, Mr Swain and his daughters entered into a complex business transaction in respect of which the Defendant firm advised. Mr Swain died shortly after the transaction during an elective medical procedure. His estate suffered severe adverse inheritance tax consequences as a result. The claim originally alleged that the Defendant should have advised delaying the transaction until after the procedure due to the risks that it posed. A subsequent amendment was made by consent after evidence of that the risks of the procedure were negligible was accepted by the Claimants. The Claimants now alleged that, regardless of Mr Swain’s health or impending medical treatment, the Defendant was under a duty to advise him on all tax implications. The court’s power to amend statements of case derives from CPR 17. The court also had regard to the pre-CPR in Worldwide Corporation Ltd. v GPT Ltd. December 2, 1998, CA, unreported. In sum, as with most procedural decisions, a balance has to be struck in seeking to do justice between the parties. 

Lord Justice Lloyd held that there was a heavy burden on a party seeking to put forward and amendment at trial which significantly changed the nature of its case. That party needed to put forward evidence to fully explain why the application was made at such a late stage, particularly in a case where the amendment was not requested pursuant to some recent disclosure or new evidence. Finally, it was incumbent on the amending party to put forward an amended statement of case which was complete, detailed and clear and did not require further evidence by way of supplement or clarification.

Helen Turnbull / 1st Jun 2013


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