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

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