Commercial Litigation: Amendments


Eldwick Law comments on recent commercial litigation amendments.

Most solicitors and litigation practitioners will be accustomed to bringing or defending applications to amend a Statement of Case. A Statement of Case has a very particular meaning, and the case of Towergate Underwriting Group Ltd v Albaco Insurance Brokers Ltd [2015] EWHC 2874 (Ch) makes clear that an application notice is not a statement of case.

Can you amend an application?

Until the case of Agents Mutual Limited v Moginnie James Ltd [2016] EWHC 3384 (Ch), this question had never been decided. The facts of this case were that the claimant had applied for summary judgment. The defendant applied for a ruling on the scope of the application, and after the Master gave the ruling, the claimant applied to amend the application. The defendant argued that the application could not simply be amended but had to be brought as a free-standing application. Ordinarily it would not matter, but there were strict time limits in this case, which had meant that if the amendment was not allowed, then the claimant’s case would fail.

The Judge ruled that applications could be amended:

  • “No authority was cited to me on the question whether an application notice under the CPR may be amended once issued, and I am not aware of any. Mr Grant QC says that CPR Parts 23 and 24, dealing with ordinary applications and summary judgment respectively, do not provide for amendment, and that Part 17, dealing with the amendment of statements of case does not apply and that therefore there is no power to amend such a notice.
  • I agree with him about Parts 17, 23 and 24. In particular, an application notice is not a statement of case for the purposes of Part 17: CPR rule 2.3(1), and see also Towergate Underwriting Group Ltd v Albaco Insurance Brokers Ltd [2015] EWHC 2874 (Ch), [17]. But I do not agree that it follows that there must be no power for the court to permit and amendment of an application notice.
  • I do not need to consider the question of whether and how far the inherent jurisdiction of the court extends to such a case. CPR Rule 3.1(2)(m) provides that:

“Except where these Rules provide otherwise, the court may –

(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective…”

  • It seems to me that amending an application before it is decided is well within the scope of this power. Deciding questions about summary judgment is part of the court’s management of the case. In my judgment it will often further the overriding objective if the court allows all issues between the parties about summary judgment to be decided at the same time, rather than require the applicant to issue a fresh application.

The parties eventually settled the action, but the judgment was still made public because it dealt with an important point of practice, which had not been dealt with anywhere else.

What our Litigation Solicitors say

The facts of this case were very particular in that a lot turned on whether the amendment was allowed. Nevertheless, this judgment provides solicitors and litigation practitioners with guidance and clarity on what are usually routine amendments to an application or where the date in an extension application is amended. We recently acted in a case where the transcribers were not able to provide us with the transcript of a hearing for an appeal, meaning that the appeal bundle could not be lodged. Rather than having to issue numerous extension applications and pay the court fee, we relied upon this case and CPR r.2.3(1)(m) to amend the remedy sought.

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