Hall & Ors v Motor Sport Vision Ltd

On a renewed application for permission to appeal against refusal of a late amendment, permission may properly be confined to a distinct issue that was not adequately recognised below. The court should distinguish genuinely new allegations from further evidence supporting an existing complaint. In assessing whether the matter should have been investigated earlier, the parties’ actual knowledge and ability to investigate are material. A party concerned with one aspect of an enterprise may reasonably lack knowledge of technical work carried out by others, particularly where that work would ordinarily be assumed to have been properly performed. Where the proposed issue may affect related questions such as waiver or acceptance, those consequences may justify allowing the issue to proceed to a full appeal, subject to clarified pleadings and supporting evidence.

The claimants sought permission to appeal from an order of His Honour Judge Bullimore, sitting as a deputy High Court judge in the Technology and Construction Court, refusing amendments shortly before trial. The proposed amendments relied principally on a further statement from a former employee of Motor Sport Vision Ltd. The existing case concerned alleged deficiencies in race-day set-up. The new material also raised alleged failures in engineering preparation, including crack-testing and lifeing of important components.

The judge below treated the new complaints as an expansion of the existing case and considered that the claimants’ expertise in motor racing meant that they could have investigated the matters earlier. On renewal, the central issue was whether the engineering-preparation allegations were materially distinct and whether the claimants could reasonably have known or investigated them.

Lord Justice Buxton granted the renewed application for permission to appeal, but limited it to the issue arising from paragraph 15 of Mr Angeloni’s affidavit: alleged defects in engineering preparation, particularly failures to undertake crack-testing and lifeing.

1. Distinct issue. The court identified a material distinction between race-day set-up, involving the tuning of the car on the day of the race and the provision of suitable mechanics, and engineering preparation carried out before race day. The latter concerned procedures intended to ensure that components were sound and were not used beyond their safe life.
2. Knowledge and investigation. In deciding whether the proposed matter should have been investigated and pleaded earlier, it was relevant that the claimants were concerned with the driving side of motor racing and might have had no knowledge of what the vehicle owners did in engineering preparation. They might also reasonably have assumed that procedures described as axiomatic in the industry had been properly performed.
3. Permission stage. Although the judge below had acted within his discretion on the material then before him, the fuller submissions revealed that the distinction and its significance had not been adequately recognised. That justified allowing the point to be considered by the full court. The Court of Appeal remained hesitant about whether it would ultimately interfere with the trial judge’s decision.
4. Directions. The proposed pleading was to be revised to distinguish engineering preparation from race-day set-up. The claimants were directed to provide evidence concerning the distinction, their inability to know what had been done, and the importance of the procedures. They were also directed to address the implications for allegations of waiver or acceptance, especially where the alleged defects were unknown to them, and to reconsider the grounds of appeal.

The only order required was permission to appeal limited to the point contained in paragraph 15 of Mr Angeloni’s affidavit.

• Court of Appeal (Civil Division): On a renewed application, permission to appeal was granted, limited to the issue concerning alleged defects in engineering preparation.
• High Court, Technology and Construction Court: His Honour Judge Bullimore refused the proposed late amendments on 3 October 2001.