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

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