Tachi v Woodward

Permission to amend late pleadings is a discretionary case-management decision governed by the overriding objective. The court must balance injustice to the applicant against prejudice to the opponent, other litigants and the administration of justice. Lateness is relative and must be assessed by reference to the nature and strength of the proposed case, the explanation for delay, the consequences for preparation and the trial date, and wasted work. New disclosure may provide a proper explanation, but it is not an automatic entitlement to amend.

At the permission stage, the court asks whether the proposed case has a real prospect of success and must avoid conducting a mini-trial. In a testamentary undue influence claim there is no presumption of undue influence; the claimant bears the burden of proving coercion or fraud.

The claimant brought a probate claim concerning competing wills made by the deceased in 2006 and 2007. She sought to pronounce against the later will on grounds of lack of testamentary capacity and want of knowledge and approval.

After disclosure of files held by the deceased’s former solicitors, the claimant applied for permission to amend her Particulars of Claim to add undue influence and to provide further particulars of the capacity case. She also sought permission to rely on two further witness statements. The application was made after directions had been given and would require the fixed trial date to be vacated. The court had to decide whether the proposed amendments had a real prospect of success and whether the interests of justice justified permitting the late amendments.

1. Amendments. The application was allowed. The court applied the discretionary principles summarised in Quah v Goldman Sachs International [2015] EWHC 759 (Comm). The overriding objective required a balance between injustice to the claimant if permission were refused and injustice to the defendant, other litigants and the court system if it were granted. A very late amendment attracts a heavy burden, particularly where it threatens a fixed trial date, but lateness is relative.
2. Explanation and prospects. The disclosure of the Dixon Ward file on 8 June 2018 provided a proper explanation for the timing of the application, although it was not a passport to permission. The proposed undue influence claim was not inherently implausible or unsupported by contemporaneous material. The court was not conducting a mini-trial. The attendance note recording a contemporaneous concern about undue influence was not itself evidence proving undue influence, but it supported the conclusion that the pleaded hypothesis had a real prospect of success. The same approach applied to the expanded capacity allegations, whose merits were matters for the trial judge.
3. Relevant substantive principles. The court relied on the principles stated in Edwards v Edwards [2007] EWHC 1119 (Ch). Testamentary undue influence is a question of fact. There is no presumption of undue influence, and the person asserting it must show facts inconsistent with any other hypothesis. Undue influence means coercion, by which the testator’s will is overborne, or fraud. The ultimate question is whether the testator acted as a free agent.
4. Further evidence and directions. Permission was granted to rely on the witness statements of BT-H and Dr Lawrence. The trial judge would determine the weight and objectivity of Dr Lawrence’s evidence; any lack of independence affected weight rather than admissibility. The defendant was to have an opportunity to amend her Defence and serve a supplemental witness statement. The fixed trial date would have to be vacated. The capacity allegation that the deceased lacked capacity when executing the 2006 Will was to be pleaded specifically in accordance with CPR 57.7(4).

First-instance case-management decision. No prior appellate decision is stated in the judgment.