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The perils of late amendments

In Rahan Ali v Abu Bakar Siddique [2015] EWCA Civ 1258 the Court of Appeal reminded us of the perils of very late amendments.

The Claimant sought permission to amend his Particulars of Claim after the trial had already started. The application was made ad-hoc, without a formal application, and only after prompting by the Recorder, who had seen reference to it within the Claimant’s skeleton argument. The amendment sought to plead a new cause of action in a claim essentially about the misappropriation of the Claimant’s monies. Initially, it was alleged that the Defendant negligently entrusted the Claimant’s cheques to a middleman. The amendment sought to include the claim that the Defendant had also negligently failed to ascertain the trustworthiness of the middleman. The Recorder at first instance allowed the amendment (and also refused the Defendant’s application in response to call a witness to deal with the new allegation) but his decision was overturned on appeal.

The Court of Appeal criticised the Claimant for not filing a formal application to amend and for not adducing a draft amended pleading. The Recorder did not seek an explanation as to why the application was being made so late, and had not been made formally, and none was offered.  The Recorder thereby fell into error, as he should have considered whether the application should be refused in the light of these failures. Even if he had done so, the Recorder should not then have made any ruling on the application until he had had sight of the amended pleading and until the Defendant and his counsel had the proper opportunity to consider it.

The Recorder should also have reconsidered the position at the conclusion of the evidence thereby allowing him to have proper regard to the prejudice caused to the Defendant arising from the amendment and the way it was presented.

Whilst not altering the law on procedure, this case serves as a reminder of the expectations of the higher courts and the need to make all applications to amend timeously (and, if not, to make absolutely certain that there is a thorough explanation within the application), to make them formally, on notice, and to always include a copy of the draft amended pleading.

Bernard Pressman / 11th Feb 2016


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