Al-Sayed v Maxwell

Permission to amend pleadings at a very late stage is a matter for the first-instance judge’s discretion. The Court of Appeal will interfere only where the judge made an error of principle, an error of reasoning, or reached a decision that was clearly wrong. The question is not whether the appellate court would have reached the same conclusion. In exercising the discretion, the judge must weigh the lateness of the amendment, prejudice to the opposing party, the possibility of compensating prejudice through costs, and the efficient administration of justice.

The claimant’s pleaded claim concerned an alleged personal obligation on the defendant to pay sales commission. During closing submissions at trial, the claimant sought permission to amend the claim to allege instead an implied obligation on the defendant to procure payment by an associated company. The trial judge dismissed the existing claim but permitted the amendment, directing that the new claim proceed to a later trial.

The defendant renewed an application for permission to appeal against the grant of permission to amend. He argued that the application was inexcusably late, made without adequate notice, and would cause the prejudice of a second trial. The central issue was whether the trial judge had exceeded or wrongly exercised his discretion.

1. Application dismissed. The renewed application for permission to appeal was refused. There was no order for costs.
2. The decision whether to allow the amendment was essentially a matter for the trial judge’s discretion. The judge had to decide where the justice of the case lay after weighing the relevant circumstances.
3. The Court of Appeal would not interfere merely because it might have reached a different conclusion. Intervention required an error of principle, an error of reasoning sufficient to undermine the decision, or a decision that was clearly wrong.
4. The trial judge had recognised that the amendment was made inexcusably late. He nevertheless considered that any prejudice caused by the delay could be compensated through the costs order and that the new issue should, if fairly possible, be determined. The need for a later trial did not establish an appealable error.
5. The Court of Appeal could detect no basis for concluding that the judge had failed to consider the relevant prejudice or had applied the wrong legal approach. The proposed arguments therefore disclosed no real prospect of a successful appeal.

• Chancery Division: Sir Donald Rattee dismissed the claim as pleaded on 10 August 2001, but granted permission to amend the Particulars of Claim so that a new claim could proceed to a later trial.
• Court of Appeal (Civil Division): The renewed application for permission to appeal was dismissed. There was no order for costs.