Acquisition 395445638 Ltd v Sicovs & Anor

An appeal against refusal to amend pleadings and strike out a claim will succeed only if the lower court’s decision was wrong or unjust because of serious procedural irregularity. Case-management decisions, including whether related claims should be heard together, attract a broad discretion where a consolidation order is expressed to operate only “if possible”.

An amendment should be refused where the pleaded case has no real prospect of success. A claimant cannot establish contractual liability against a solicitor merely by relying on the client’s separate hire agreement or on agreements to which the claimant and solicitor are not parties. The appellate court will assess the pleading actually argued below, not a materially different version advanced later.

The Appellant claimed £10,000 from the Respondent solicitors after the solicitors paid a settlement received in a road-traffic-accident claim to their client. The Appellant alleged that the client’s hire agreement contained an irrevocable instruction requiring payment of hire charges to the Appellant and that wider referral and working arrangements created contractual obligations owed by the Respondent.

The County Court refused permission to amend the Particulars of Claim, struck out the claim against the Respondent, and ordered costs. The Appellant appealed, alleging procedural irregularity and contending that the proposed amended case had a realistic prospect of success. The central issues were whether the lower court had been required to deal with related claims together and whether the pleaded arrangements disclosed a viable contractual cause of action.

1. Outcome. Permission to appeal was refused on both grounds. The lower court’s refusal to amend, strike out and award costs therefore stood.
2. Procedural ground. The orders concerning the related proceedings did not require the instant claim to be heard with them. The relevant order stated that the claims should be heard together “if possible”. The judge was entitled, in exercising her case-management discretion, to determine only the applications listed before her. The loss of the Appellant’s court bundle and the late availability of its skeleton argument did not make the decision wrong or unjust. The judge had read the skeleton argument, heard the Appellant’s submissions, and had sufficient material to decide the listed applications.
3. Amendment and contractual case. The first proposed Amended Particulars of Claim, which was the version argued below, relied principally on agreements between Excel Law and St Martin’s Accident Management and on the first Defendant’s hire agreement. Excel was not a party to the proceedings, and the Appellant could not identify a contractual provision imposing liability on the Respondent. The hire agreement was between the Appellant and the first Defendant. The Respondent’s retainer was with the first Defendant. The first Defendant’s failure to direct payment to the Appellant did not establish a contractual cause of action against the Respondent.
4. The proposed amendment therefore had no realistic prospect of success. The same conclusion applied to the second proposed version, even though it was not argued before the lower court. The appellate court was not required to consider the third and fourth versions, which had not been relied upon below and were materially different.
5. The Appellant’s reliance on alleged working arrangements, previous payments and communications about settlement offers did not cure the absence of a pleaded contractual nexus. The procedural authorities relied upon by the Appellant did not establish any procedural unfairness or require remission for rehearing.

• County Court at Central London: HHJ Baucher refused the application to amend, struck out the claim against the Respondent, ordered costs of £5,248.70, and refused permission to appeal on 26 October 2018.
• High Court (Queen’s Bench Division): Mr Justice Sweeney refused permission to appeal on both grounds.