Bowerbank v Amos

A late application to amend a pleading made during trial, before judgment has been delivered, is governed by the overriding objective and ordinary case-management discretion. The stricter jurisdiction requiring most exceptional circumstances to reopen a judgment does not apply. Amendment may be allowed to enable adjudication of the real dispute, subject to careful protection against prejudice. Where the amendment changes the legal case, fairness may require further cross-examination and an adjournment. Contract damages must reflect actual expectation loss, rather than an arbitrary asset value at the date of breach. The court must assess the market, timing, likelihood of performance and sum reasonably expected to be received.

The claimant and defendant had operated a publishing business in which the claimant asserted a 30 per cent beneficial interest. After the claimant developed breast cancer, she transferred legal title to the shares and granted the defendant a power of attorney. She later claimed breach of trust. The trial judge found the essential facts in her favour but held that the pleaded claim failed in law. He permitted an amendment alleging breach of contract, refused an adjournment for further cross-examination, awarded the claimant £18,639.30 plus interest, dismissed the counterclaim and made a costs order.

The defendant appealed against the amendment, refusal of an adjournment and further evidence, the damages award and costs. Permission to challenge the factual findings was refused. The central issues were whether the amended claim could stand, whether the defendant had been given a fair opportunity to meet it, and whether damages and costs had been properly determined.

Holman J gave the judgment of the court. Brooke LJ and Kennedy LJ agreed. The appeal was allowed in part and the claim was remitted part heard.

1. Amendment. The application was made during the trial, before judgment had been delivered and before the judge had formally ruled on it. It was therefore not an application to reopen a judgment within the jurisdiction described in In re Barrell Enterprises [1973] 1 WLR 19. The judge had to apply the overriding objective. Following the approach stated in Cobbold v London Borough of Greenwich, an amendment may properly be allowed so that the real dispute is adjudicated, provided prejudice can be addressed and the public interest in efficient administration is not significantly harmed. The permission to amend was upheld, but the judge was required to minimise prejudice scrupulously.
2. Fair opportunity to meet the amended case. The defendant had cross-examined the claimant on a breach of trust case, not on the subsequently pleaded contract case. Once the amendment was allowed, justice overwhelmingly required an opportunity for further cross-examination. The claimant’s temporary unavailability on one day did not justify refusing an adjournment when she could attend on another convenient date. The refusal was so unjust that it could not stand. The judge was directed to consider afresh whether further witnesses should be called.
3. Findings and damages. Further evidence required the trial judge to retain an open and flexible mind, and to review or replace earlier findings and reconsider the law in light of the final facts. Damages for breach of contract had to be based on the difference between what the claimant received and what she would have received upon performance. Valuing the assets at 5 January 1999 was not sufficient. The court had to assess the actual market, likely timing of any sale, the prospects of performance and the sum reasonably expected to be received. Performance by refinancing might have produced no loss at all, so the damages could have been zero.
4. Costs. The costs order was set aside so that costs could be reconsidered after the resumed hearing and final outcome.

The claim was remitted to His Honour Judge Green QC for a case management conference and further hearing on the amended particulars of claim.

• Court of Appeal (Civil Division) — [2003] EWCA Civ 1161: allowed the appeal in part, upheld permission to amend, set aside the refusal of further cross-examination, set aside the damages judgment and costs order, and remitted the claim part heard.
• Central London County Court — His Honour Judge Barry Green QC: found the essential facts for the claimant, initially held that the pleaded breach of trust claim failed in law, then permitted amendment to plead breach of contract, refused an adjournment for further cross-examination, awarded damages and ordered the defendant to pay 50 per cent of the claimant’s costs.