Hemery v Ramlogan

Under rule 17(1) of the Supreme Court Rules 2000, a court considering an amendment must hear the applicant if submissions are offered, but it is not required to insist that submissions be made. A party who has an opportunity to address the court and does not do so cannot ordinarily complain on appeal that it was unheard. An appellate court should not lightly revisit an unequivocal lower-court finding that the opportunity was available. In deciding whether a very late amendment serves the real controversy, the court may weigh the age of the claim, previous amendments, the lateness and scale of the proposed change, the addition of a counterclaim, evidential difficulties and the need for a fair trial within a reasonable time.

The respondent claimed the balance of the price for constructing two apartments for the appellant and his former wife. After several years of proceedings, and shortly before the trial, the appellant sought to withdraw important admissions, advance a substantially different defence and add a counterclaim. The trial judge refused the amendment, and judgment was subsequently entered on agreed terms against the appellant, with the claim against the former wife struck out.

The Court of Civil Appeal dismissed the appellant’s appeal with costs. Before the Board, he argued that he had not been heard on the amendment, that the judge had failed to consider the proposed pleading and documents, and that the amendment ought to have been allowed. The central issue was whether the judge had erred in dealing with the late motion to amend.

1. Appeal dismissed. The Board found no basis to interfere with the Court of Civil Appeal’s factual conclusion that the appellant had an opportunity to make submissions on the amendment but did not take it. An appellate court should not go behind such an unequivocal factual appraisal, particularly where counsel did not press the judge to hear argument after the ruling.
2. Rule 17(1) of the Supreme Court Rules 2000 empowers the court at the hearing to grant amendments on just and reasonable terms for determining the real question in controversy. A court must not refuse to hear a party who seeks leave to amend if that party seeks to make submissions. It is not, however, the court’s duty to insist that submissions be made. The same conclusion applied to the complaint concerning the former wife being put out of cause, where no objection had been voiced and the represented appellant’s counsel could have objected.
3. The refusal of the amendment was a proper exercise of case-management discretion. The relevant considerations included the age of the debt and proceedings, the extreme lateness of the application, an earlier amendment, the wholesale transformation of the pleaded case, the proposed counterclaim, the questionable assistance the amended pleading would provide in identifying the real controversy, and the substantial difficulties and scepticism arising from the revised case and supporting explanation. These matters supported the requirement of a fair trial within a reasonable time.
4. The Board therefore dismissed the appeal. The challenge to the payment order could not succeed independently once the case-management decision was upheld. It was unnecessary to decide whether leave to appeal from the trial judge had also been required.

• Privy Council: Appeal dismissed. The Board upheld the dismissal of the appeal and the refusal of the late amendment.
• Supreme Court of Mauritius, Court of Civil Appeal: By judgment dated 13 May 2011, the appellant’s appeal was dismissed with costs.
• Supreme Court of Mauritius: The trial judge refused the proposed amendment on 13 July 2009. Judgment was later entered on agreed terms requiring payment of 3,600,000 rupees, and the claim against the co-defendant was struck out.