Radford & Anor v Frade & Ors

An appellate court should be slow to interfere with a robust case-management decision to strike out a claim where no error of law is shown. A proposed amendment may be refused even if it is arguable when introduced very late, particularly where it advances a substantially new cause of action and would prolong already protracted proceedings. The court is not required indefinitely to permit new ways of presenting a claim. Costs may generally be assessed and ordered on a continuing “pay as you go” basis. Where liability for costs is realistically unlikely to fall below the sum assessed, an interim payment on account may properly be ordered unless there is good reason to the contrary.

The claimants sought permission to appeal against a Master’s order granting summary judgment for the fourth and fifth defendants, refusing a very late amendment based on alleged breach of contract, and making costs orders including an interim payment of £120,000. The Master had concluded that the existing conspiracy claim was hopeless and that the proposed claims concerning moral rights and an implied contractual term faced substantial legal and procedural obstacles.

The claimants argued that the Master had erred in law, including in relation to the contractual arrangements, the proposed amendment, the timing of costs, and the interim payment on account. The central questions were whether permission to appeal should be granted and whether the Master’s case-management and costs decisions disclosed any appealable error.

1. Permission to appeal refused. The Master’s ruling was a robust case-management decision of a kind with which an appellate court should be slow to interfere. No error of law was identified.
2. The proposed amendment was not a mere clarification or tidying-up exercise. It introduced a substantially different basis of claim after lengthy proceedings in which the original tortious claims had progressively fallen away. Even where a point is arguable, it may come too late. The court is not obliged indefinitely to permit litigants to introduce new ways of presenting or prolonging a claim.
3. The proposed moral-rights claim faced the contractual waiver and assignment provisions. The proposed implied-term claim was also untenable on the material before the court, since the relevant claimant was not a party to the agreement and the agreement contained an entire-agreement clause. The Master was entitled to refuse the amendment.
4. The Master was entitled to determine costs at that stage. The fact that some issues might also arise in the defence to a counterclaim did not require costs to be deferred, particularly where the counterclaim might never proceed to trial. The general civil-litigation practice was that costs were assessed from time to time on a “pay as you go” basis.
5. The interim payment of £120,000 was also within the Master’s discretion. The modern presumption is that a payment on account will be ordered unless there is good reason not to do so. On the material available, it was realistic to conclude that the defendants’ liability after detailed assessment would not fall below that amount.

The judgment concerns an application for permission to appeal against an order of Master Eyre dated 14 January 2014. Permission to appeal was refused by the High Court.