Mark Lewis Law Ltd & Anor v Taylor Hampton Solicitors Ltd & Anor

Permission to amend a pleaded case is governed by the overriding objective and remains a matter of case management. A party is not automatically entitled to withdraw a factual concession merely because it later believes the concession was mistaken. The court may refuse a late amendment where it would prejudice the opponent, reopen an issue already determined, or amount to a collateral challenge to an earlier order. On appeal, the court will interfere with a case-management decision only where there is real substance in the alleged error. Limited amendments may nevertheless be permitted where they simply clarify the period or incorporate concessions already made.

The defendants appealed, and sought permission to appeal, against Master Gidden’s refusal of their application to amend their defence, counterclaim and response to a request for information. The proposed amendments sought substantially to withdraw or reduce an earlier concession that junior fee earners had generated approximately £744,000 in fees, and to advance a different basis for quantifying the defendants’ counterclaim.

The earlier refusal of amendments, made in Gidden 1, had not been appealed. The central issues were whether the later amendments constituted a collateral challenge to that order, whether the Master had exercised his case-management discretion correctly, and whether limited corrections concerning the termination date and existing concessions should be allowed.

1. Disposition. The court granted limited permission to appeal on grounds 7 and 8 and allowed the appeal on those grounds only. Permission was otherwise refused.
2. Collateral challenge. The later amendments were, in substance, an attempt to withdraw the concession and substitute a different basis for the counterclaim after the Master had refused that approach in Gidden 1. Taylor Hampton could not reargue the issue through different wording or a different procedural mechanism. The appeal was therefore bound to fail on its main ground.
3. Case-management discretion. The Master had applied the correct approach. A late change of case could cause substantial prejudice by requiring new evidence, analysis, time and cost. The fact that the proposed change might correct an alleged factual error did not create an automatic right to resile from a pleaded concession. The court retains a discretion under the overriding objective, and may leave a party fixed with its concession, subject to explaining the position at trial.
4. The suggestion that a party must always be permitted to correct a pleading once it discovers an error was rejected. Taylor Hampton therefore had to give credit for the amounts originally conceded, including the £744,000 figure.
5. The limited successful grounds permitted the counterclaim to run to 29 April 2015, the alleged termination date, with concessions extended accordingly. Taylor Hampton could also incorporate other concessions already made in Mark Lewis’s favour, including the 20 per cent discount in recovered fees. Further directions might be required to ensure the September pleading complied with the judgment.

• High Court (Queen’s Bench Division): Master Gidden refused the defendants’ application to amend their defence and counterclaim and response to a request for information. The defendants sought permission to appeal. Whipple J granted limited permission on grounds 7 and 8 and allowed the appeal on those grounds only; permission was otherwise refused.