South Tees Development Corporation & Anor v PD Teesport Limited

Permission to amend pleadings at a very late stage should be refused where the applicant cannot show a good reason for delay and the amendment would introduce factual issues requiring further investigation, disclosure, evidence or potentially joinder. The court must balance prejudice to the applicant against prejudice to the opposing party, other litigants and the administration of justice. A party’s own failure to comply with procedural obligations substantially weakens the prejudice relied on. A plea of abandonment of an easement requires evidence of a fixed intention never again to assert or transmit the right. A proposed plea based on supervening circumstances must address whether there is any practical possibility of the easement benefiting the dominant land again.

The claim concerned declarations and counterclaims relating to alleged rights of way over industrial land near Middlesbrough. The Claimants and Third Party applied during the trial for permission to introduce substantial amendments concerning abandonment or extinguishment, land registration, statutory capacity and the effect of adjoining land owned by Redcar Bulk Terminal Ltd.

Master Brightwell refused the abandonment or extinguishment amendments, permitted the land registration amendments, and adjourned the capacity and RBT issues to the trial judge. Trower J subsequently allowed the Defendant’s appeal against permission for the land registration plea. The present judgment determined the renewed and adjourned applications at trial.

1. Applicable approach. Under CPR 17.3, the court has a broad discretion governed by the overriding objective. It must balance injustice to the applicant if permission is refused against injustice to the opposing party, other litigants and the efficient use of court resources if permission is granted. Strict regard is required for procedural rules and case-management directions.
2. Very late amendments. Where an amendment is sought so late that it threatens the trial’s fairness or timetable, the applicant bears a heavy burden to demonstrate the strength of the proposed case and why justice requires its introduction. The timing, history and explanation for the delay are important. Prejudice includes disruption, duplicated costs, inability to investigate the new case, and lost opportunities for disclosure, evidence or joinder. Self-created prejudice carries reduced weight.
3. Abandonment. A plea of abandonment of an easement requires proof of a fixed intention by the person entitled to cease asserting or transmitting the right. The proposed Swan Hunter amendment lacked particulars of the facts capable of proving that mental element and would require new factual and expert investigation.
4. Supervening extinguishment. An easement may be extinguished where circumstances create no practical possibility of its ever again benefiting the dominant tenement in the contemplated manner. The proposed Access Route 1 amendment did not address that issue adequately and raised further questions about the permanence and legal significance of works carried out during the litigation.
5. The RBT amendments were either duplicative factual assertions or inappropriate legal submissions in a pleading. The proposed amendments were refused. The Capacity plea, being a pure point of law, was adjourned to closing submissions.

• Master Brightwell: refused the abandonment or extinguishment amendments, permitted the land registration amendments, and adjourned the Capacity and RBT amendments to the trial judge.
• High Court, Trower J: allowed the Defendant’s appeal against permission for the land registration plea.
• High Court, Rajah J: refused the renewed and adjourned amendments, save that the Capacity plea was adjourned to closing submissions.