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.

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