McLouglin v Jones & Ors

Permission to appeal against a discretionary case-management order should be granted only where the judge misdirected himself, ignored or relied on an irrelevant factor, or reached an overall decision that was plainly wrong. A late amendment should generally be permitted where the proposed case is fairly arguable and can be met without injustice. The court must assess the new issues’ demands for disclosure, factual and expert evidence, the promptness and notice of the application, the consequences of any adjournment, and the prejudice to the applicant if the amendment is refused. An updated schedule of loss does not authorise introduction of a wholly new type of loss without permission. Claims may be treated differently where one can be prepared for trial without material disruption but another cannot.

The claimant sued his former solicitors for professional negligence arising from his criminal prosecution, claiming loss of liberty, psychiatric harm and substantial financial losses. Shortly before the fixed trial, he served a revised schedule claiming, among other matters, loss of capital appreciation on properties sold and on additional properties he said he would have acquired. Eady J struck out those new elements as an unacceptable and oppressive late expansion of the case. The claimant sought permission to appeal. The central issues were whether the revised schedule merely updated existing particulars, whether permission to amend was required, and whether the defendants could fairly meet each part of the revised claim without delaying the trial.

1. The court granted permission to appeal and allowed the appeal in part. The claim for loss of capital appreciation concerning properties sold as a consequence of the defendants’ alleged breach was reinstated. The claims dependent on the acquisition of additional properties, including the related loss of rental income, remained struck out.

2. The decision below was discretionary. The appellate court could intervene only for a misdirection in law, failure to consider a relevant factor, consideration of an irrelevant factor, or an overall decision that was plainly wrong. The court applied that approach, citing G v G [1985] 1 WLR 647 at 652C.

3. An order requiring an updated schedule permitted the claimant to bring the existing claim up to date by substituting current figures and giving further calculation details. It did not permit the claimant, without warning, to introduce a wholly new type of loss or a substantially different case. Such a change had to be approached as an application for permission to amend.

4. In deciding a late amendment application, the court should generally favour allowing a fairly arguable case where it can be met without injustice. The court must evaluate the practical effect of the new issues, including disclosure, witness and expert evidence, the promptness and notice of the application, the consequences of an adjournment, and the prejudice caused by refusal. Those considerations must be balanced in the particular circumstances.

5. The additional-property claims raised new and complex questions about available funds, borrowing, renovation requirements and costs. The defendants could not satisfactorily investigate them before the imminent trial, and the trial should not be adjourned in an already stale case. By contrast, the sold-property claim substantially overlapped with the existing rental-income claim and did not create equivalent preparation difficulties. The court therefore exercised its own discretion to distinguish between the two parts.

6. No order for costs was made on the appeal or below. The claimant was ordered to pay the costs of the permission application before Eady J and the costs thrown away by the abortive hearing before Curtis J.

• Court of Appeal (Civil Division): permission to appeal granted and appeal allowed in part on 27 May 2005.
• High Court, Queen’s Bench Division: Eady J’s order of 12 May 2005 struck out the challenged parts of the revised schedule of loss as an impermissibly late and oppressive expansion of the claim.