Paul O'Boyle (Trading as Viridian) & Anor v Mary Viven Wallis

The court has a broad discretion to permit amendments, balancing injustice to the applicant against injustice to the respondent and applying the overriding objective. A proposed new claim must have a real, more than fanciful, prospect of success, but the court should not conduct a mini-trial where contested facts require trial evidence.

Further particulars of an existing pleaded case need not themselves satisfy the real-prospect test, although they must have a relevant connection to the existing plea. A general partnership has no separate legal personality. Although the preferred procedure is to sue in the firm name, it may be appropriate, in an unusual case, to proceed against a surviving partner alone.

The claimants sought permission to re-amend their particulars of claim. The defendant sought strike out or reverse summary judgment of parts of the amended pleading. The claim arose from leases of business units and storage agreements concerning containers, followed by allegations of unlawful eviction, conversion, delivery up and consequential losses.

The claim had been issued in 2020 and had undergone several iterations. Earlier proceedings had joined the second claimant and discontinued claims against the executors of the estate of a deceased partner. The central issues were whether the proposed amendments introduced new claims outside limitation, whether the claim against the surviving partner was properly constituted, and whether parts of the pleading should be struck out or summarily determined.

1. Disposition. The amendment application was allowed only in part and subject to further refinement. The defendant’s second strike out application was largely addressed by the proposed amendments, but the claim was not dismissed. A further hearing was directed to consider revised particulars, any further strike out application, conditions on permission to amend and costs.
2. Amendment principles. Under CPR 17, the court must balance the prejudice caused by allowing or refusing an amendment and apply the overriding objective. A genuinely new claim must have a real prospect of success. The court must reject amendments that are inherently implausible, self-contradictory or wholly fanciful, but must avoid a mini-trial where the issue depends on disputed fact or mixed fact and law. Further particulars of an existing claim need only have a relevant connection with the existing plea.
3. Partnership claim. The claim concerning the storage agreements and containers had been pleaded from the outset as a claim against the partnership and its partners. Woodmancott Enterprises had no separate legal personality. Although CPR PD 7A 7.3 generally favoured suing in the firm name, the provision was not absolute because it applied unless that course was inappropriate. In the unusual circumstances—two partners, the death of one, full administration of his estate and the surviving partner’s continuing role—the claim could proceed against Mrs Wallis alone. It was not a new claim and no new party was required.
4. Limits of the surviving claim. The claim concerning containers and moulds survived in principle, but the pleading had to identify which causes of action accrued before and after dissolution of the partnership on 20 September 2014. Claims accruing after dissolution could not presently be sustained against the partnership without further analysis.
5. Other amendments and strike out. Amendments introducing inadequately particularised set-off agreements, changed arrears figures without explanation and unparticularised heads of loss were refused or required further work. Ownership of the moulds involved contested factual evidence and was weak but not fanciful; it therefore had to proceed to trial rather than being struck out at this stage.
6. Case management. The court indicated that any permission to amend might be conditional on payment into court, reflecting the weakness of parts of the claim, repeated pleading failures and delay. Costs were reserved.