Matthew Walker v Mersey Care NHS Foundation

Permission to amend a pleading on the first day of trial remains a discretionary case-management decision. The lateness of an amendment and the absence of a good explanation are important factors, but neither is automatically fatal where the trial can fairly proceed and the opposing party has already engaged with the issue in evidence. The burden of explaining the delay remains on the amending party.

On appeal, factual findings and evaluative conclusions should not be disturbed unless affected by an identifiable error, unsupported by the evidence, or plainly outside the range of reasonable disagreement. In sporting activities, breach of a game’s rules does not, without more, establish negligence; the conduct must be characterised as negligent rather than an error of judgment or miscalculation.

The claimant injured his wrist while participating in football at a medium-secure mental health unit. He alleged that the game was “soft touch” football, governed by rules prohibiting hard or high kicks, and that a colleague had negligently breached those rules.

On the first day of trial, the respondent was permitted to amend its Defence to plead that the game was akin to ordinary five-a-side football and had no rule restricting the force of a kick. The Recorder refused an adjournment and later dismissed the claim, finding that the evidence favoured the respondent’s account.

The claimant appealed both the amendment decision and the factual findings. The central issues were whether the amendment was wrongly allowed and whether the Recorder’s findings about the nature of the game were open to him.

1. Appeal against amendment. The Recorder had a wide discretion in managing the trial. The appellate court should not interfere unless there was an error of principle, a material matter was omitted or wrongly considered, or the balancing exercise was plainly untenable. The principles in Royal & Sun Alliance PLC v T & N [2002] EWCA Civ 1964, Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Clearway Drainage Systems Ltd v Miles Smith Ltd [2016] EWCA Civ 1258 were applied.
2. The approach in Quah Su-Ling v Goldman Sachs International [20156] EWHC 759 (Comm) required the court to balance the justice of allowing the amendment against prejudice to the opponent and other court users. The amendment was very late and there was no good explanation for the delay. However, the absence of a good explanation was an important factor, not an automatic bar, where the trial could proceed without adjournment.
3. The original Defence put the claimant to proof of the rules of “soft touch football” and did not clearly admit what those rules were. The amendment therefore converted an ambiguous non-admission into a clear positive case consistent with evidence served approximately 11 months earlier. The claimant had already addressed the issue in his own evidence. The Recorder was entitled to conclude that the amendment caused no unfair prejudice and that the trial could proceed.
4. The burden of applying promptly to amend remained on the respondent. Nevertheless, the claimant’s failure to raise the evident pleading difficulty before trial could properly be considered when assessing surprise and the appropriate case-management response.
5. Appeal against factual findings. The principles summarised in Deutsche Bank AG v Sebastian Holdings [2023] EWCA Civ 191, Henderson v Foxworth Investments Ltd [2014] UKSC 41, Walter Lilly & Co Ltd v Clin [2021] EWCA Civ 136 and Volpi v Volpi [2022] EWCA Civ 464 required restraint. The Recorder had carefully assessed the evidence and gave rational reasons for preferring the respondent’s principal witness. His conclusion was plainly open to him.
6. Under Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054, a breach of sporting rules alone is insufficient. It must be shown that the conduct was negligent, rather than an error of judgment or miscalculation. The Recorder’s findings did not disclose such an error.
7. The appeal was dismissed.

• High Court (King’s Bench Division): appeal against the Recorder’s case-management decision and Main Judgment dismissed.
• Liverpool County and Family Court: Recorder Kennedy KC allowed the amendment, refused an adjournment, and dismissed the claim after trial on 18 August 2023.
• Permission to appeal: granted by Mr Justice Ritchie on 16 October 2023.