Bourke & Anor v Favre & Anor

Permission to amend pleadings is determined by the overriding objective and requires a fact-sensitive assessment. Relevant considerations include the amendment’s history and explanation, the prejudice caused by refusing or allowing it, and the clarity and particularity of the proposed pleading. A fixed trial date is a significant factor, but does not mechanically make every amendment a very late amendment. A party should notify the opponent of the substance of a proposed amendment promptly. Waiting to see the opponent’s witness evidence before identifying the new case is generally improper because pleadings should define the issues and focus disclosure and evidence. A wholly new case introduced shortly before trial may be refused where it creates substantial and unfair preparation burdens, especially when the claimant can pursue it separately.

The claim concerned a Dorset landed estate and included a contractual claim arising from alleged 1966 family arrangements and an adverse possession claim relating to Home Farm. The claimants applied to amend their particulars of claim shortly before a March 2015 trial.

The proposed amendments introduced a proprietary estoppel claim based on alleged representations over many years and further adverse possession claims concerning a copse, parts of the curtilage of Chettle House and a vegetable garden. The issue was whether the amendments should be permitted, having regard to delay, prejudice, the effect on the trial date, and the possibility of later proceedings.

1. Amendment principles. The court adopted the principles summarised in Brown v InnovatorOne plc [2011] EWHC 3221 (Comm), including consideration of the amendment’s history and explanation, prejudice to the applicant if refused, prejudice to the respondent if allowed, and clarity and particularity. The discussion in Worldwide Corporation v GPT Ltd [1998] EWCA (Civ) 1894, Swain Mason v Mills & Reeve LLP [2011] 1 WLR 2735 and Hague Plant Ltd v Hague [2014] EWCA (Civ) 1609 was applied. A fixed trial date is significant, but it is not an automatic rule that the amendment is very late.
2. The proprietary estoppel amendment was a wholly new case. It relied on representations extending over many years and required a substantial review of the evidence and the historical context. The claimants had delayed without an adequate explanation and had withheld the substance of the amendment until after seeing the defendants’ witness statements. That conduct created an unfair imbalance and risked an adjournment, particularly given the defendants’ advanced preparation for the existing case.
3. The prejudice of refusing the proprietary estoppel amendment was substantial because a later claim might be barred by the rule in Henderson v Henderson (1843) 3 Hare 100. Nevertheless, the prejudice caused to the defendants and the effect on the overriding objective outweighed it. Permission was refused.
4. The additional adverse possession claims were different causes of action and were unlikely to be barred by Henderson v Henderson. The claimants could probably bring them separately. They should not be added to the March trial if the defendants objected, although the defendants were given an opportunity to elect to have them tried in that action.