Bleasdale & Anor v Forster

A very late application to amend pleadings requires a careful balance between the strength of the proposed case, the interests of all parties, and disruption to other litigants. A heavy onus rests on the applicant. The amended pleading must itself state the complete case with sufficient clarity and detail; deficiencies cannot ordinarily be supplied later through evidence or further information.

An alternative case may, in principle, rely on the opposing party’s account of events, even where the claimant disputes that account. A statement of truth does not necessarily prevent such pleading where there is a proper evidential basis. Permission should nevertheless be refused where the proposed case has no realistic prospect of success.

The claimants sought permission to amend their particulars of claim in proceedings alleging that the defendant had fraudulently induced investments in companies connected with a tag system. Their primary case was unchanged. The proposed alternative case relied on the defendant’s own witness evidence concerning discussions about a possible contract with Southern Cross.

The application was heard shortly before the intended trial window. The court also considered amendments correcting financial details and expanding the pleaded loss to include later payments into related companies. The central questions were whether the alternative representations were properly arguable and whether the later amendments adequately pleaded a recoverable basis.

1. Alternative misrepresentation case. The proposed alternative representations were not properly arguable on the evidence relied upon. The defendant’s account, read as a whole, described an initial agreement in principle which had failed during subsequent negotiations. It did not support a representation that the agreement remained available or that Southern Cross remained willing to proceed on the original terms.
2. The defendant’s statement that Southern Cross remained a valuable potential customer and that the door was open to future discussions expressed her own state of mind. The evidence did not properly support an allegation that this belief had been communicated to the claimants. The amendments therefore disclosed no realistic prospect of success and permission to plead them was refused.
3. Late amendments. The court applied the approach in Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894, as endorsed in Swain-Mason v Mills & Reeve [2011] EWCA Civ 14. A late amendment is not subject to an inflexible rule, but the applicant bears a heavy onus. The amended text must itself satisfy proper pleading requirements, and the opposing party must know immediately the case to be met.
4. There was no absolute legal or logical bar to pleading an alternative case based on the defendant’s version of events. The court could dispense with verification under CPR rule 22.1(2), and the principle in Binks v Securicor Omega Express Ltd [2003] EWCA Civ 993, [2003] 1 WLR 2557 supported the permissibility of such alternative pleading where there was a proper evidential basis. The court also considered the rebuttable presumption of inducement discussed in Ross River Ltd v Cambridge City Football Club Ltd [2007] EWHC 2115 (Ch), [2008] 1 All ER 1004, and the practical difficulty of analysing reliance noted in Arnison v Smith (1889) 41 Ch D 348. Those points did not rescue the proposed amendments.
5. Permission was granted for amendments correcting a typographical error and clarifying movements of money. The proposed loss amendments were criticised for failing to plead why payments made after discovery of the alleged fraud were recoverable. The claimants were given seven days to supply the necessary basis and particulars; absent agreement, permission on that issue was adjourned to the trial judge. The court did not rule out a similar application at trial once the evidence was complete.

The judgment concerned an amendment application in first-instance proceedings. It referred to an earlier judgment dismissing the defendant’s summary judgment application, [2011] EWHC 416 (Ch), but this was not an appeal from that decision.