Collier v Kramer

A late amendment may be refused where it substantially changes the case, is inadequately particularised and has no substantial prospect of success. In an unlawful-means conspiracy, the pleaded unlawful means must form part of a combination involving the alleged conspirators. A personal or incidental breach of duty by some participants is insufficient without an allegation that the other alleged conspirators planned or procured that breach. Potential limitation difficulties, including uncertainty whether the new claim arises from the same or substantially the same facts as an existing claim, provide an additional reason to refuse amendment.

Mr Collier sued solicitors who had acted for him and sought permission to amend his claim to join his former solicitor individually, his daughter and his former wife as alleged conspirators. The original conspiracy case concerned their alleged denial of an oral trust and conduct in earlier litigation concerning two properties. That case was substantially abandoned on appeal and replaced by an allegation that the proposed defendants had combined to deny Mr Collier the use and enjoyment of the properties, through breaches of duty by the solicitor and former employee.

Mr Justice Lewison refused permission to amend. The appeal concerned whether the revised and unparticularised conspiracy claim should be added at a late stage, having regard to its merits, possible abuse, inconsistent findings and limitation under CPR 17.4(2).

1. Appeal dismissed. The Court of Appeal unanimously upheld the refusal of permission to amend. The revised case was materially different from the case advanced below and in the notice of appeal, and had been produced only during the appeal.
2. The revised pleading was wholly unpersuasive and lacked any substantial prospect of success. It was confined to conspiracy to do a lawful act by unlawful means, rather than conspiracy to injure by lawful means. The proposed unlawful means were alleged breaches of duty by Mr Isaacs and Mrs Collier. There was, however, no allegation or particular showing that Miss Collier had planned with them that they should breach duties owed to Mr Collier.
3. The court regarded the premise that legal title was irrelevant as unsustainable. Miss Collier, as legal owner, could deny Mr Collier the use and enjoyment of the properties without assistance from the other alleged conspirators. The pleading therefore did not explain why any combination involving breaches of duty was required. The suggestion that two parties had counselled or procured another alleged conspirator to act also did not disclose a coherent conspiracy case.
4. The court did not need finally to determine the abuse-of-process arguments. It expressed less confidence that amendment should be refused merely because of a risk of inconsistent findings or because only some alleged conspirators were joined. Separate litigation might be inevitable where the proposed defendants had not been parties to the earlier proceedings, although challenging the factual basis established in the earlier litigation would have been abusive as against Miss Collier.
5. The potential limitation problem reinforced the refusal. If the alleged conspiracy occurred before or around December 1997, the revised claim might be a new claim brought more than six years after the cause of action arose and might not arise from the same or substantially the same facts as an existing claim under CPR 17.4(2). The amendment was refused, the appellant was ordered to pay £20,000 including VAT in summarily assessed costs, and leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal from the refusal of Mr Justice Lewison in the High Court Chancery Division to permit amendment and joinder. Appeal dismissed; amendment refused and leave to appeal to the House of Lords refused.