Parker & Anor v SJ Berwin & Co & Anor

Amendments should generally be permitted where they enable the real dispute to be determined, provided prejudice can be compensated in costs and the amendment has a real prospect of success. After limitation has expired, a new cause of action may be added only if it arises from the same or substantially the same facts as an existing claim. The comparison must consider the whole range of facts likely to be investigated at trial, not merely the essential facts of the causes of action.

For strike-out and summary judgment applications, the court applies the pleaded-facts assumption under CPR 3.4(2)(a), while CPR 24 permits a wider inquiry. A professional negligence claimant cannot rely on the wasted-expenditure presumption in CCC Films (London) Ltd v Impact Quadrant Films Ltd; recovery requires proof of a real and substantial chance that the expenditure would have been recovered.

The claimants alleged that their solicitors and a partner failed to support proposed bids for Leicester City Football Club, failed to advise them properly, and caused losses including wasted expenditure and costs connected with defamation proceedings.

The claim had remained at the pleadings stage after delayed and fragmented conduct of the proceedings. The claimants applied to amend the claim form and particulars of claim. The defendants applied to strike out parts of the proposed and existing claims.

The court determined whether particular amendments involved new causes of action, whether they arose from the same or substantially the same facts, whether proposed claims had a real prospect of success, and whether the wasted-expenditure claim could rely on the principle in CCC Films (London) Ltd v Impact Quadrant Films Ltd.

1. Amendment principles. The court applied the overriding objective in CPR 1. Amendments should generally be allowed where they permit the real dispute to be adjudicated, unless prejudice cannot adequately be compensated in costs, the administration of justice would be significantly harmed, or the amended case lacks a real prospect of success.
2. New causes of action. Under Limitation Act 1980, s 35 and CPR 17.4(2), the relevant comparison is between the minimum essential facts of the existing and proposed causes of action when identifying a new cause of action. The same-facts inquiry is broader and concerns the whole range of evidence likely to be adduced at trial. Amendments concerning the assignment, restitution claim and certain pleading corrections satisfied that test. The proposed Tolmie claim did not, because it depended on a separate retainer and substantial new factual matters.
3. Strike out and summary judgment. Under CPR 3.4(2)(a), the pleaded facts are assumed to be established. Under CPR 24, the court may conduct a wider inquiry. The defamation claims were fact-sensitive and had a real prospect of success, so they were not struck out.
4. Damages and professional negligence. The wasted-expenditure principle in CCC Films (London) Ltd v Impact Quadrant Films Ltd is directed essentially to loss-of-bargain cases. A solicitor exercising reasonable care does not warrant a particular result. The claimants therefore had to establish a real and substantial chance that their expenditure would have been recovered, consistently with Allied Maples Group plc v Simmons & Simmons. The proposed presumption was rejected.
5. Outcome. Permission was granted for specified amendments, including substitution of the first defendant, amendment concerning the assignment and restitution, and amendments relating to the defamation claims. Permission was refused for the Tolmie, shareholding and amended wasted-expenditure claims. The claim for the first claimant's later bid expenses was struck out.