Kelly v Chief Constable of South Yorkshire Police

A party may amend its pleaded case after the evidence has concluded to advance an alternative factual inference emerging from the evidence. Permission should be granted where appropriate terms concerning costs or the recall of witnesses can prevent injustice to the other parties.

The lateness of an amendment and its inconsistency with the applicant’s own evidence are relevant but not necessarily decisive. An alternative case may rely upon the opposing party’s evidence.

For causation, an actionable assault need only be a cause of the injury. A court should not summarily treat a later event as breaking the chain where the alleged unlawful restraint may naturally have contributed to the injury.

The claimant brought proceedings against the Chief Constable following her arrest and transport in a police car. She alleged unlawful arrest and assault, including that a police officer deliberately struck her leg and caused a knee injury.

After the evidence had concluded at a civil jury trial in Sheffield County Court, she sought to plead an alternative case. The proposed case was that her knee was injured when the car braked while the officer was sitting on and restraining her legs. His Honour Judge Bartfield refused permission to amend because he regarded the braking as an independent cause rather than part of the alleged assault.

The jury rejected the claimant’s principal allegations but found that excessive force had been used in placing her in the car and sitting on her legs. She received £250 damages. Her appeal concerned whether the judge had applied the correct approach to causation and whether the late amendment should have been permitted.

1. Appeal allowed unanimously. May LJ held that the judge had erred by summarily deciding that the sudden braking broke the chain of causation. Sedley and Rix LJJ agreed. If the unlawful restraint constituted a cause of the knee injury, that was sufficient; it did not have to be the sole or dominant cause.

2. May LJ considered that a passenger restrained by the legs might naturally be thrown forward and twisted when a car braked suddenly. On the postulated facts, the braking would probably not have broken the chain of causation. At a minimum, the issue could not properly be resolved summarily when refusing permission to amend.

3. Because the judge’s only stated reason for refusing the amendment was legally erroneous, the Court of Appeal reconsidered the discretion afresh. The alternative case would not necessarily have been struck out at the close of the claimant’s evidence. It could properly be advanced conditionally upon the jury accepting the defendant’s evidence about how the officer restrained her.

4. The possible allocation of liability between different insurers did not justify refusing the amendment. The Chief Constable was the defendant in either event, and such insurance questions were essentially internal matters.

5. The timing of the application created some potential prejudice because the claimant had not been cross-examined on the alternative case. That prejudice was limited. The officer could add little about whether he was still sitting on her legs when the car stopped, and the medical evidence was consistent with either mechanism involving twisting. The available objections did not outweigh the justice of allowing the claimant to advance an alternative case derived from, or close to, the defendant’s evidence.

6. Sedley LJ added that it is normal and proper practice to permit an amendment at the conclusion of the evidence where a previously unpleaded factual inference has emerged, provided appropriate terms concerning costs or recall of witnesses can avoid injustice.

7. Permission to amend was granted. The jury’s findings were preserved, and the trial was directed to continue without a jury before the same judge.

• Court of Appeal (Civil Division): The appeal was allowed unanimously. Permission to amend was granted, the jury’s existing findings were preserved, and the trial was directed to continue without a jury before the same judge: [2001] EWCA Civ 1632.
• Sheffield County Court: His Honour Judge Bartfield refused permission to amend and declined to put the consequential question to the jury. The claimant obtained judgment for £250 but was ordered to pay 80 per cent of the defendant’s costs. The refusal of permission to amend and the costs order were set aside.