The Manchester Ship Canal Company Ltd v United Utilities Water Ltd

Applications to amend pleadings are discretionary and must be assessed under the overriding objective. A very late amendment requires a strong explanation, a clear case with a real prospect of success, and a fair assessment of the work, delay and prejudice it would cause.

Where proposed amendments introduce distinct and insufficiently particularised allegations requiring extensive investigation, permission may be refused, leaving the claimant to pursue them, if at all, in fresh proceedings. An amendment which merely responds to an existing defence may be permitted and will not necessarily constitute a new claim for limitation purposes.

The Manchester Ship Canal Company Limited and the Bridgewater Canal Company Limited claimed that United Utilities Water Limited’s discharges into the canals constituted trespass unless authorised by agreement, statute or another legal right.

Following earlier appellate litigation concerning statutory rights to discharge through existing outfalls, MSCC sought permission to re-re-amend its particulars of claim. United Utilities sought declarations and orders concerning particular outfalls.

The central issues were whether the proposed amendments were sufficiently arguable and particularised, whether they were too late, and whether some were time-barred.

1. Applications to amend are governed by the overriding objective. The court must balance injustice to the applicant if permission is refused against prejudice to the opponent, other litigants and court users if it is granted. Lateness is relative, but may carry substantial weight where amendments cause wasted work, delay or extensive investigation.

2. Permission was granted for amendments concerning eight outfalls alleged to have been constructed on or after 1 December 1991. Those amendments were supported by some evidence, were adequately particularised and did not greatly enlarge the proceedings. They modified MSCC’s response to United Utilities’ defence rather than introducing a new cause of action, and were not objectionable on limitation grounds.

3. Permission was refused for amendments concerning post-1991 connections to pre-1991 outfalls, alleged breaches of sections 117(5) and 186(3) of the Water Industry Act 1991, and material transported by road tanker to treatment works. The court declined to determine the first issue because it had not been fully argued. The amendments were nevertheless insufficiently particularised, very late, distinct from the existing case and likely to require extensive investigation.

4. The refused claims should be pursued, if at all, in fresh proceedings. The court did not need to decide the additional limitation objections. Further argument was reserved on minor amendments and future directions.

1. Court of Appeal allowed the claimants’ appeal and set aside the order made by the present court, subject to an immaterial exception.
2. Supreme Court reversed the Court of Appeal’s decision, restored paragraph 1 of the present court’s order, and remitted the remaining matters for further directions.