Singh v Kaur & Ors

Permission to bring a late additional claim under Civil Procedure Rules, r 20.7 is a case-management discretion. The court may give substantial weight to the history and stage of the proceedings, including repeated failures to use opportunities given by court orders.

The absence of an unless order or a formal sanction does not prevent the court from treating those failures as relevant. On an appeal against such a discretionary decision, the court assesses the decision by reference to the material before the judge. Later information that was not, and could not have been, before the judge cannot establish an error of discretion.

The claimant sought declarations concerning beneficial interests in several properties. The sixth defendant relied on an alleged Singh Family Trust and counterclaimed against the claimant for declarations as to its validity and consequential relief.

Although the sixth defendant had been given repeated opportunities to serve additional claims against the other defendants, he did not serve a valid additional claim. After the claimant settled with the first to fifth defendants, HHJ Behrens refused his later application for permission under Civil Procedure Rules, r 20.7(3)(b).

The sixth defendant appealed. The central issue was whether the judge had erred in exercising the discretion to refuse permission for the late additional claims.

Appeal dismissed. Lloyd LJ, with whom Sullivan and Carnwath LJJ agreed, held that HHJ Behrens's order was well within the proper scope of his discretion.

1. An application to bring an additional claim after the relevant procedural stage required permission under Civil Procedure Rules, r 20.7(3)(b). The relevant practice direction required the supporting evidence to address the history and stage of the main proceedings. The judge was therefore entitled to attach substantial weight to the procedural history.

2. This was not mere delay. The appellant had failed to act despite eight successive orders, some by consent, fixing times for additional claims. His earlier attempt had been invalid because no additional claim form accompanied it. Even after the defect was identified and a further period allowed to rectify it, he did not do so. The subsequent trial-preparation order proceeded on the basis that no additional claim would be made.

3. It was immaterial that the orders were not unless orders and may not have imposed a specific sanction. Whether CPR r 3.9 formally applied was moot. The application remained a discretionary one under r 20.7(3)(b), and the repeated failures to act were plainly relevant to that discretion.

4. The judge had not overlooked the asserted need to enforce the alleged trust between its parties. He was entitled to consider the appellant's submission that separate proceedings could be commenced, and the possible application of abuse-of-process principles in Johnson v Gore Wood & Co [2002] 2 AC 1.

5. Information about the later consent order and the availability of a longer trial date was not before, and could not have been before, the judge. It was therefore irrelevant to whether he had erred in exercising his discretion.

• Court of Appeal (Civil Division): Dismissed the sixth defendant's appeal in [2011] EWCA Civ 1554.
• High Court of Justice, Chancery Division, Leeds District Registry: HHJ Behrens refused, on 15 July 2011, the sixth defendant's application for permission to make additional claims under Civil Procedure Rules, r 20.7(3)(b). The lower-court citation was not stated in the judgment.