Pearce v East and North Hertfordshire NHS Trust

Under CPR 17.3, permission to amend requires a balance between the injustice of refusing the amendment and the prejudice to the opponent and other court users. A proposed amendment is very late where it threatens an established trial date. The applicant then bears a heavy burden to show both the strength of the new case and a good reason for delay.

Permission may properly be refused even where the proposed case has more than a fanciful prospect of success. That is particularly so where the applicant’s unexplained delay would require the trial to be adjourned, reopen issues and evidence, and consume further court resources.

The claimant sought damages for clinical negligence arising from a delay in arranging an ultrasound scan after his breech delivery. The defendant admitted that its system had failed to secure an appointment within six weeks, but disputed causation.

Following case management, the claimant confined the liability trial to causation based on the admitted breach. Shortly before the listed trial, the defendant applied to amend its Defence. It sought to contend that the claimant’s mother’s failure to attend an appointment offered at nine weeks was the proximate cause of the loss or a novus actus interveniens. The application would require the claimant to revive previously abandoned breach allegations and obtain further expert evidence.

1. Application dismissed. The proposed amendment was a very late application because fairness to the claimant would require the fixed trial to be vacated. The amendment would reopen whether the claimant’s mother should have been told that the scan was time-sensitive, and would require new paediatric or neonatology expert evidence. A short adjournment could not be assumed, particularly given pressure on listing and the pandemic backlog.
2. Under CPR 17.3, the court applied the discretionary framework drawn from CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345 (TCC) and Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm). The overriding objective required a balance between injustice to the applicant if refused and prejudice to the opposing party and other court users if allowed. A threatened trial fixture imposed a heavy burden on the defendant to explain the delay and justify the amendment.
3. The defendant had no good explanation for its delay. The proposed causation argument was already apparent from the pleaded case, the letter of claim and the defendant’s earlier response. It should have been pleaded initially or raised at later procedural stages. The court rejected the contention that the experts’ joint statement had properly crystallised a new point.
4. The proposed causation case was not so hopeless that it had no realistic prospect of success. Nevertheless, its merits did not outweigh the decisive prejudice arising from adjournment, reopening issues and diverting court resources. The defendant’s inability to advance that argument carried reduced weight because it had created the position through its own unexplained conduct.
5. The parties were invited to draw an order giving effect to the dismissal.

not stated in the judgment.