Court of Appeal reaffirms strict approach to late amendments

In a judgment handed down in January, the Court of Appeal has sent a strong message against taking a relaxed approach to late amendments and as to the precision required for a proper pleading: Swain-Mason and ors v Mills & Reeve [2011] EWCA Civ 14.

The judge had allowed the claimants in a professional negligence action to re-amend their particulars of claim on the first day of trial. The Court of Appeal held that the trial judge had misdirected himself as to the proper approach where a late amendment is sought.

The trial judge had followed a line of authority to the effect that amendments in general ought to be allowed, provided that any prejudice caused to the opponent can be compensated in costs. He had not been referred to the Court of Appeal judgment in Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894, which is neither reported nor referred to in the notes to the White Book. In that case, the court had refused to permit amendments in the first week of trial. It commented that where a last minute amendment is sought which will delay the trial and inconvenience other litigants, there will be a heavy onus on the amending party to show the strength of the new case and why justice requires him to be able to pursue it.

In Swain-Mason the Court of Appeal endorsed that approach, saying:

• The court should be less ready than it used to be to allow a very late amendment, where the need for the amendment does not result from some late disclosure or new evidence.
• A heavy onus lies on the party seeking a late amendment to justify it, not only as regards his own position but also in relation to other parties to the litigation and other cases before the court, and to give evidence as to why the application is made at such a late stage.
• The party seeking the late amendment must satisfy the full requirements of proper pleading. It is not acceptable to say that deficiencies can be made good by way of further information or evidence in due course.