Vaughan v Modality Partnership

The tribunal assessing an application to amend must balance the injustice and hardship of granting the amendment against that of refusing it. The [1996] ICR 836 factors are illustrative, not a checklist, and must be applied within that balancing exercise. Parties should identify the practical consequences of allowing or refusing an amendment. An employment judge has broad case‑management discretion and appellate interference requires an error of law.

The appellant sought permission to amend pleaded protected disclosures at a late stage shortly before a final hearing. The Employment Judge refused the application. The appellant appealed to the Employment Appeal Tribunal, which considered whether the judge had erred in law when applying the balancing exercise derived from [1996] ICR 836 and related authorities.

The EAT reheard argument on whether the Selkent approach was properly applied, whether the judge considered the extent of additional inquiry required, and whether she took into account alternative remedies for any prejudice. The central question was whether the refusal involved an error of law or fell within permissible case management discretion.

1. The appeal is dismissed. The Employment Judge did not make an error of law in refusing the late amendment. (Overall disposition.)
2. The applicable test requires balancing the injustice and hardship of allowing an amendment against those of refusing it. The Selkent examples are factors to be weighed, not a checklist. (Reasons: paras [12]–[16]; [23]–[26].)
3. An employment judge enjoys broad case‑management discretion. The EAT will only intervene where there is an error of law, failure to take into account a relevant matter, or a decision no reasonable tribunal could have reached. (See paras [4], [6], [10].)
4. Practical consequences should be the focus of submissions on amendment applications. Parties should explain specific prejudice and practical problems in responding. If the parties do not make such submissions, it is harder to criticise the judge’s balancing. (See paras [21], [22], [48].)
5. On the facts the Employment Judge considered the relevant Selkent factors, addressed prejudice to both parties sufficiently, noted the postponement of the hearing, and concluded that the late timing and fading memories weighed against permitting the amendment. The judge’s reasoning, while brief, covered the correct ground and reached a permissible conclusion. (See paras [31]–[34]; [41]–[44].)
6. Where prejudice can be ameliorated by costs this should be considered, but some forms of prejudice such as fading memory cannot be remedied by costs. The judge permissibly weighed this in refusing the amendment. (See paras [27], [47].)
7. Order: Appeal dismissed. No remittal was ordered. (Operative outcome: para [49].)

• Employment Tribunal (London South) – Application to amend refused by Employment Judge Ferguson; written reasons provided (see paras [31]–[34]).
• Employment Appeal Tribunal – Appeal considered under the EAT Rules; permission initially refused under Rule 3(7) but later permitted under Rule 3(10); appeal dismissed on the merits by HHJ Tayler sitting alone. (See paras [35]–[37].)