Day 052 - 21 Nov 94 - Page 05
1 such a disadvantage as that it cannot
2 be cured by the application of that healing medicine.
3 Here I fail even to see that the Respondents want costs to
4 remedy any grievance, because they have been put to none.
5 The case has been fought exactly in the same way as it
6 would have been fought if Mr. Hancock had delivered
7 particulars of objection, and therefore it seems to me that
8 he ought to be allowed to amend".
9
10 My Lord, I place some particular emphasis, as your Lordship
11 will appreciate, on that last sentence.
12
13 My Lord, I do not see it to be asserted by the Defendants'
14 skeleton argument that this application by us is in any
15 sense intending to overreach -----
16
17 MR. JUSTICE BELL: What did "overreach" mean in those days?
18
19 MR. RAMPTON: I think it means deliberately try to get, rather
20 as in the case of -----
21
22 MR. JUSTICE BELL: Deliberately try to get some unfair -----
23
24 MR. RAMPTON: Deliberately try; hold your application back to
25 get an unfair tactical advantage. I do not see that to be
26 suggested; if it were, it would have to be distinctly
27 asserted in the Defendants' skeleton and it is not; even if
28 it were, we would say there is no absolutely no warrant for
29 it at all.
30
31 That being so, the only question, we would submit, which
32 arises in this case (and we believe this to be recognised
33 by the Defendants' skeleton argument; I have only glanced
34 at but I take it to be the effect of it) is whether or not
35 the grant of leave at this stage in the proceedings would
36 cause an injustice to the Defendants which cannot be
37 remedied.
38
39 My Lord, one can for a large part, at least, ignore the
40 question of costs thrown away because, of course, whatever
41 the true position may turn out to be, the Defendants have
42 not incurred any costs; so one can forget about that. The
43 only question really, we would submit, is this, has the
44 lateness of this application -- it does come during the
45 trial -- meant that the Defendants have been deprived of a
46 proper opportunity to meet the case which we now seek leave
47 to make explicitly on the pleading? It is our submission
48 that the answer to that question is, plainly, they have
49 not.
50
51 My Lord, reading on in the White Book, from the end of that
52 citation from Cropper v. Smith, the White Book goes on at
53 page 371: "In Tildesley v. Harper (1876) 10 Ch.D. 393,
54 Bramwell L.J. said: 'My practice has always been to give
55 leave to amend unless I have been satisfied that the party
56 applying was acting malafide'," that answers your
57 Lordship's question, I think, "'or that, by his blunder, he
58 had done some injury to his opponent which could not be
59 compensated for by costs or otherwise.' 'However negligent
60 or careless may have been the first omission, and however
