Agents Mutual Ltd v Moginnie James Ltd

An application notice may be amended before determination. The power arises under CPR rule 3.1(2)(m), which permits the court to take steps for case management and to further the overriding objective. Exercise of that power is fact-sensitive. Relevant considerations include the timing of the proposed amendment, the procedural history, prejudice to the other party, and whether amendment would cause delay or undermine an existing case-management order. Although hearing all summary-judgment grounds together may promote efficiency, that consideration may be outweighed by lateness, reliance on a restricted procedural basis, and the need for further evidence or adjournment.

The claimant sought summary judgment on the defendant’s counterclaim in proceedings concerning alleged misrepresentation, repudiatory breach and an anti-competitive contractual term. The claimant’s application, issued by the deadline imposed by Roth J, relied on the effect of a written disclaimer.

After the court ruled that the application did not include grounds based on affirmation or non-incorporation of representations, the claimant applied orally to amend the application notice. The defendant resisted the amendment, relying on the earlier case-management order, the stay of the Chancery proceedings and the lateness of the new grounds. The issue was whether the application notice could be amended and, if so, whether amendment was appropriate.

1. An application notice is not a statement of case for the purposes of CPR Part 17. CPR Parts 23 and 24 contain no express provision for amendment. The court therefore agreed that Part 17 did not provide the relevant power, with reference also to Towergate Underwriting Group Ltd v Albaco Insurance Brokers Ltd [2015] EWHC 2874 (Ch).

2. That conclusion did not mean that amendment was unavailable. CPR rule 3.1(2)(m) gives the court power, except where the Rules provide otherwise, to take any other step or make any other order for case management and furtherance of the overriding objective. Permitting amendment of an application notice before it is decided falls within that power. Determining summary-judgment issues is part of case management, and it will often further the overriding objective to determine all such issues at one hearing.

3. The power must be exercised on the facts of the particular case. Although a fresh application would eventually be possible and a single hearing might be more efficient, the proposed grounds had not formed part of the basis on which Roth J excluded the summary-judgment application from the general stay. The defendant had agreed to the order on that restricted basis, and the claimant had raised the additional grounds only shortly before the hearing.

4. Amendment was refused. It would probably have required further evidence and delayed the effective hearing. The application to amend was dismissed. The subsequent settlement brought the proceedings to an end, and there was no hearing on the adjourned date.