Day 052 - 21 Nov 94 - Page 09
1 rightly accept that the words here complained of make grave
2 charges. They also accept that their application for
3 leave drastically to amend their defence is very belatedly
4 made. So it is. Even so, should it be granted?
5 The all-embracing principle was enunciated by Bowen L.J. in
6 Cropper v. Smith."
7
8 Then Edmund Davies L.J. (as he then was) reads out the
9 familiar passage from Cropper v. Smith. The Lord Justice
10 goes on at G: "To that approach all other considerations
11 must be subordinate. Applying it here, the machinery of
12 the law having been set in motion by the institution of
13 these proceedings, the issues involved are of great
14 importance to the community, and it is in the public
15 interest that they should be properly ventilated
16 notwithstanding the delay which will in consequence arise
17 in bringing the matter to trial." My Lord, one can ignore
18 the last bit of that but,
19 that reasserts, I hope, what I have just submitted to your
20 Lordship in relation to this issue in this case, this
21 present case, before your Lordship.
22
23 My Lord, finally, amongst these authorities, I will not
24 read out the relevant passage from Buckland v. Farmar &
25 Moody. I ask your Lordship to note that it starts at just
26 below letter H on page 227 and finishes at letter D on page
27 228. If your Lordship will remember, that was a case where
28 the amendment was allowed to support an issue which had, in
29 fact, been opened by the applying parties' counsel at the
30 trial; so, it was thought that there was no prejudice to
31 the other side.
32
33 My Lord, Smith v. Baron reported in The Times Law Reports
34 on 1st February 1991 in the Court of Appeal before
35 Glidewell L.J. and Stockwell L.J., the headnote says: "A
36 judge had discretion during a trial to give leave to
37 reamend the pleadings".
38
39 MS. STEEL: Where are we?
40
41 MR. RAMPTON: I think it is the last one in the bundle.
42
43 MR. JUSTICE BELL: That is the one which is in The Times as
44 well, is it?
45
46 MR. RAMPTON: The headnote reads: "A judge had discretion
47 during a trial to give leave to reamend the pleadings after
48 completion of both the evidence and counsels' closing
49 speeches. ... (reading to the words) ... should be
50 sparingly used". Your Lordship will see at once the
51 distinction between the timing of the application in that
52 case and its timing in this case. "Order 20, Rules 5 and 8
53 of the Rules of the Supreme Court permitted such amendments
54 provided they did not give rise to any new cause of action
55 or result in unfairness or prejudice to one of the parties.
56 The Court of Appeal so held in dismissing an appeal by
57 the defendant" and so on and so forth. "My Lord, Stocker
58 L.J. said that after completion of the evidence both
59 counsel addressed the Judge who then invited them to his
60 room to discuss difficulties arising from the pleadings.
