Binks v Securicor Omega Express Ltd.

A statement of truth does not invariably prevent a party from pleading inconsistent factual alternatives supported by evidence. A claimant may dispute an opponent’s account while contending that, if the court accepts it, that account establishes liability. The court may permit an amendment without verification or accept a suitably qualified statement of truth.

Permission depends on whether the alternative case can be determined justly and without unfair prejudice, using appropriate measures concerning costs or further evidence. A claimant’s dishonesty does not relieve a defendant of liability established by the accepted evidence.

An employee claimed damages after falling from his employer’s van. The county court rejected his account and accepted evidence that he had been riding on a prohibited conveyor belt when the van moved. It refused to consider an alternative case based on the employer’s evidence because the claimant could not verify an inconsistent pleading and the employer might be prejudiced.

The claimant appealed against that refusal. He accepted the assessed damages of £27,000 and proposed 50% contributory negligence. The central issues were whether Part 22 of the Civil Procedure Rules prevented the alternative case and whether the judge had properly exercised his case-management discretion.

1. Appeal allowed unanimously. Maurice Kay J delivered the leading judgment. Carnwath and Pill LJJ agreed. The claimant was permitted to amend his case, and judgment was entered for £13,500 after a 50% reduction for contributory negligence.

2. The county court had misdirected itself on Part 22 of the Civil Procedure Rules. Rule 22.1(2) expressly permits the court to dispense with verification when a statement of case is amended. An amendment pleading an evidentially supported alternative derived from an opponent’s documents, pleadings or evidence may justify that course.

3. Part 22 does not invariably prevent a party from advancing an allegation which the party does not assert to be true. The pleading must have an evidential basis. A claimant may also use a suitably qualified statement of truth which makes clear that the opponent’s version is disputed but, if accepted by the court, is relied upon as an alternative basis of liability. This construction accords with the overriding objective of dealing with cases justly.

4. The refusal to permit the alternative case was also a flawed exercise of discretion. The supposed prejudice to the employer rested on unsustainable assumptions about further cross-examination and witnesses who might have been called. The judge had also failed to consider the wider interests of justice and the possibility of addressing consequences through costs. Although an appellate court is slow to interfere with case-management decisions, intervention was required because the approach was plainly erroneous.

5. Carnwath LJ emphasised that alternative pleading has a long-established place in civil procedure. A claimant does not act dishonestly by disputing an alternative account while contending that, if upheld, it establishes liability. Pill LJ added that untruthful evidence does not necessarily defeat an otherwise established claim. The accepted facts disclosed a plain and causative breach of duty because the van was moved while the claimant remained inside.

6. The claimant was also negligent because riding on the conveyor belt was prohibited and foolhardy. The employer’s default was serious, so responsibility was apportioned equally. The claimant received half his costs below and all his appeal costs. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): The appeal was allowed. Permission to amend was granted, liability was established on the alternative case, and damages were reduced by 50% for contributory negligence.

• Leeds County Court: His Honour Judge Langan QC rejected the claimant’s account, refused to permit the alternative case, and dismissed the claim. He assessed full-liability damages at £27,000.