Cobbold v London Borough Of Greenwich

When deciding whether to permit a late amendment, the court should seek to determine the parties’ real dispute. An amendment should generally be allowed where resulting prejudice can be compensated in costs and the efficient administration of justice will not be significantly harmed.

Delay remains important, particularly where a trial date has been fixed. It must, however, be balanced against fairness, the parties’ prior knowledge of the proposed case, their conduct, responsibility for the delay and the prejudice caused by preventing an arguable case from being advanced. Permission to amend does not necessarily require the trial to be adjourned.

A council tenant claimed damages from her landlord for disrepair, relying on express repairing obligations, section 11 of the Landlord and Tenant Act 1985 and section 4 of the Defective Premises Act 1972. The landlord sought to amend its defence to plead a variation of the tenancy conditions and a compromise arising from earlier magistrates’ court proceedings.

His Honour Judge Welchman refused both the amendment and an adjournment shortly before trial. The landlord applied to the Court of Appeal for permission to appeal. The central issue was whether the judge had erred in exercising his case-management discretion under Part 1 of the Civil Procedure Rules 1998.

Appeal allowed to a limited extent. Peter Gibson LJ gave the leading judgment. Sedley LJ agreed with both his reasons and proposed orders.

1. The county court judge had correctly referred to the overriding objective in Part 1 of the Civil Procedure Rules 1998. Trial dates are important and should ordinarily be maintained. The judge had nevertheless allowed that consideration to dictate his approach to the proposed amendment.

2. The overriding objective requires cases to be dealt with justly. This includes both expedition and fairness. Amendments should generally be permitted so that the real dispute can be determined, provided that prejudice caused to another party can be compensated in costs and the public interest in the efficient administration of justice is not significantly harmed. Refusing a party permission to advance its properly arguable real case itself causes prejudice.

3. Four relevant considerations had not received proper weight. The tenant had known for months about the alleged variation and possessed the relevant witness statement. She had also received the documents supporting the proposed compromise defence. Her earlier position had been that the action should await the appeal in Welsh v London Borough of Greenwich. Finally, the court bore some responsibility for the late application because the landlord had not been notified of the trial date and its enquiry to the county court had received no response.

4. Those matters, together with the general justice of the case and the prejudice caused by excluding the defences, established an error of law in the exercise of discretion. Appellate intervention was therefore justified.

5. The landlord received permission to amend its defence in the clarified form discussed with the court. The trial was nevertheless to proceed on the following day, subject to any necessary adjournment application to the trial judge. Allowing an amendment did not itself require the loss of the trial date, and no real disadvantage to the tenant had been demonstrated.

1. Court of Appeal (Civil Division): In [1999] EWCA Civ 2074, granted permission to appeal and unanimously allowed the appeal to the limited extent of permitting the clarified amendments. The listed trial was to proceed, subject to any further application to the trial judge.
2. Woolwich County Court: On 5 August 1999, His Honour Judge Welchman refused the landlord’s applications to amend its defence and to adjourn the trial.