Day 052 - 21 Nov 94 - Page 10
1 Both counsel suggested reamending their pleadings. The
2 hearing in open court resumed. The Judge gave to leave to
3 reamend ... (reading to the words) ... His Lordship said
4 that orders allowing amendments to be made during or after
5 the calling of evidence were rare. The power to allow them
6 should be sparingly used".
7
8 MR. JUSTICE BELL: If you just pause there? No-one could have
9 had more experience in litigation than that particular Lord
10 Justice of Appeal. But amendments are, in my experience --
11 I wonder whether he is completely accurately reported
12 there, because they frequently are made during -- of
13 course, the judge has to exercise his discretion and decide
14 whether it is fair or not, but time and time again -----
15
16 MR. RAMPTON: My Lord, I would respectfully agree with that. If
17 I may give a little bit of evidence, as it were: I have
18 been doing jury cases now for thirty years. Even in jury
19 cases it is not at all uncommon for amendments to be
20 granted so that the pleadings match the evidence even quite
21 late on in a trial. I once did a case not long ago which,
22 after a three month trial, the pleadings with the leave of
23 the judge were amended after the close of the evidence and
24 before closing speeches, and that was a jury trial.
25
26 Then Lord Justice Stocker goes on: "But here there was not
27 no question of the amendments giving rise to any
28 new ... (reading to the words) ... in different terms".
29 That, we say, is precisely what we are inviting your
30 Lordship to let us do here. "Plainly, the Judge had
31 jurisdiction to permit the amendments if no injustice or
32 prejudice to either party resulted. The real purpose of
33 Order 20, Rules 5 and 8 ... (reading to the words) ... and
34 both counsel had sought to reamend so that the real issues
35 in the case could be considered. Glidewell L.J. agreed
36 with Stocker L.J."
37
38 My Lord, may I then pass from those authorities to the
39 reasons why, in our respectful submission -- my Lord,
40 Mr. Atkinson reminds me of the recent case in the All
41 England Law Reports which your Lordship drew attention to
42 the other day. The case is Beoco Limited v. Alfa Laval Co.
43 Ltd. My Lord, I am not sure it really adds anything to the
44 learning on the subject simply because, perhaps, the
45 principle is so crystal clear. It is at page 464 of Part 6
46 of this year's All England Reports. I will, if I may,
47 confine myself to reading the first holding on page 465
48 below letter G:
49
50 "Held - (1) The guiding principle in giving leave to amend
51 was that all amendments should be allowed at any stage in
52 the proceedings to enable all issues between the parties to
53 be determined, provided that the amendment did not result
54 in prejudice or injustice to the other party which could
55 not properly be compensated in costs. Since an appropriate
56 order for costs would substantially protect the first
57 defendant from any injustice in allowing the late
58 amendment, and since, if the amendment had not been allowed
59 the plaintiff would have been unable to bring a separate
60 action to pursue that claim, which would have amounted to
