Solicitors’ Delay in preparing a Will – When is it Negligent?
The court was ruling on an appeal against a case management order that the claimant in Hague Plant Ltd v Hague & Ors  EWCA Civ 1609 could not re-amend its particulars of claim.
The appellant (H) appealed against a judge's refusal ( EWHC 568 (Ch)) for permission to re-amend his particulars of claim in proceedings alleging dishonest breach of fiduciary duty and dishonest assistance against the three defendants. The case was the fifth set of proceedings in a lengthy family dispute. The draft version of re-amended particulars of claim was five times longer than the original. It was a completely new statement of case and would require changes to the defences. It detailed what was alleged to be the defendants' case, referring to the submissions, evidence and statements of case in the earlier litigation. The judge held that the re-amendments were disproportionate in that they would not result in the litigation being conducted at proportionate cost and would cause extensive judicial time to be expended at the expense of other litigants.
H submitted that the judge had erred in
It was held that far from being a concise statement of the primary facts relied upon in support of the claim, the draft re-amended particulars was a rambling narrative of the supposed twists and turns of the defendants' case, serving no apparent purpose and obscuring the claim. Given the burden already placed on the court by the family's litigation, the judge's reference to Mitchell case was understandable. The passage he quoted contained a general description of the effect of the Jackson reforms in tempering the court's desire to achieve perfect justice between the parties and it emphasised the need to allocate to each party no more than a fair share of the court's limited resources.
HHJ Behrens had decided that the draft statement of case was “disproportionate in the sense that it would not lead to the litigation being conducted at proportionate cost and would lead to further extensive court time being expended at the expense of other litigants”.
In his Judgment Lord Justice Briggs recounted: “In slightly more detail, he concluded that the draft statement of case was constructed in a style which failed to comply with the primary requirement of a pleading, namely that it should include a concise statement of the facts upon which the claimant relies, so as to clarify rather than obscure the issues…"
“Large parts of it consisted of detailed citation of the first defendant’s position as set out in previous litigation between the parties, in disclosure, transcripts, pleadings, witness statements and part 18 information, and all in a document five times longer than the original particulars of claim, including much which, because it was merely responsive to the re-amended defences, could perfectly well have been included in a reply.”
He said that the judge’s conclusion did not of itself prohibit the claimant from seeking to amend all or part of the underlying content in a different way, “and indeed the claimant has applied for permission to amend certain parts of that content by an application which has been postponed, pending this appeal, but which is in due course to be heard by the Vice-Chancellor Norris J”.
Dismissing the appeal, Briggs LJ said he “emphatically” disagreed. “A judge is, in my view, perfectly entitled to apply both his general and particular experience to these questions without spelling out, in analytical detail, the reasons for his conclusions about the increased cost and burden, both to the parties and the court, threatened by a substantial proposed re-amendment."
By Kristina Morgan, Paralegal, Dispute Resolution
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