South Tees Development Corporation & Anor v PD Teesport Limited

Permission to amend pleadings late requires a proper balancing exercise. The applicant must show that the amendment is arguable, properly particularised and supported by a factual basis. Where the amendment could have been raised earlier, a good reason for the delay is required. The court must assess the likely prejudice to the opposing party, including disruption to disclosure, witness evidence and expert preparation, and the threat to a fair trial or existing trial date. Those matters must be considered when deciding the amendment application itself. They cannot be deferred to a later application to adjourn the trial.

The claimants sought declarations concerning rights of way claimed by the defendant over development land. The third party, a prospective developer, was joined to the counterclaim. Shortly before an expedited trial, the claimants and third party sought permission to amend their pleadings to rely on Land Registration Act 2002, section 29 and Schedule 3, paragraph 3. They alleged that the claimed easements, even if established, did not override their registered dispositions.

The Master granted permission to make those amendments. The defendant appealed. The court also considered an application to adjourn the trial if the amendments were allowed. The central issues were whether the amendments were sufficiently late to require a good reason, whether the Master properly assessed prejudice and trial readiness, and whether the third party’s position justified treating it differently from the claimants.

1. Appeal allowed. Permission to appeal was granted, paragraph 1.3 of the Master’s order was set aside, and the defendant’s adjournment application was dismissed as unnecessary.
2. Case-management decisions are discretionary. An appellate court may intervene where the judge misdirected himself in law, acted procedurally unfairly, considered irrelevant matters, failed to consider relevant matters, or reached a decision outside the generous ambit of reasonable disagreement. The principles stated in Broughton v Kop Football (Cayman) Ltd [2012] EWCA (Civ) 1743 and summarised in Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB) applied.
3. In a late amendment application, the court must consider whether there is a good reason for the delay, the clarity and arguability of the amendment, the prejudice to the resisting party, the prejudice to the applicant, and whether the amendment threatens the fair conduct or date of the trial. The distinction between a late and a very late amendment is material, but the court must assess the substance and imminence of the threat rather than require certainty that an adjournment will be necessary. CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345 (TCC) and Hague Plant Limited v Hague [2014] EWCA 1609 (Civ) were applied.
4. The Master erred by treating the third party’s late involvement and the later schedule of rights as a sufficient explanation for delay. The claimants could have pleaded the land-registration case earlier. The third party, having sought expedition and represented that the case was ready for trial, was under an immediate obligation to identify the case it wished to run. Its position could not materially differ from that of the claimants.
5. The Master also erred by treating possible prejudice as something capable of being dealt with separately on an adjournment application. The likely need to revisit disclosure, interview elderly witnesses, reassess photographic evidence and prepare evidence on knowledge and obviousness was relevant to the amendment application itself. The absence of a good reason for delay and the substantial prejudice to the defendant outweighed the applicants’ loss of the proposed defence.
6. Under section 29 and Schedule 3, paragraph 3 of the Land Registration Act 2002, the proposed case concerned new factual issues, including knowledge, obviousness and use during the relevant year. Those matters required pleading and could not be treated as merely legal arguments arising automatically from the existing case.

• High Court, Chancery Appeals: Master Brightwell granted permission to amend on 11 August 2023. Mr Justice Trower granted permission to appeal, allowed the appeal, set aside paragraph 1.3 of the order, and dismissed the adjournment application as unnecessary.