England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Mr Justice Neuberger)

		Royal Courts of Justice Strand London WC2 Friday, 19th July 2002

Friday, 19th July 2002

1. LORD JUSTICE PETER GIBSON: I will ask Lady Justice Arden to give the first judgment.
2. LADY JUSTICE ARDEN: This is an appeal by the defendant's solicitors in this action (whom I will call "MSG") against a ruling made by Neuberger J on 30 November 2000 at the start of the trial of this action, and against certain issues of principle and fact decided by him in his written judgment at the end of the trial dated 21 December 2000. The judge's judgment is now reported at [2001] Lloyds PNLR 423. The ruling to which I have referred was a ruling giving the respondent to this appeal and claimant in the action, Mr Gold, permission to amend his particulars of claim and to serve a reply.

Background

3. In this action Mr Gold seeks damages for professional negligence against MSG. In 1984, Mr Gold, his sister-in-law, Mrs Pamela Gold, and a Mr Martin entered into a partnership for the purposes of investing in and developing property. The partnership borrowed money from a bank now known as AIB Group (UK) Plc (whom I shall call "the Bank"). From time to time Mr Gold and Mr Martin entered into mortgages with the Bank and in 1993 these mortgages were restructured. At all material times the mortgages contained an unusual clause which rendered Mr Gold jointly and severally liable with Mr Martin to the Bank, not only for the debts of the partnership but also Mr Martin's indebtedness personally. (This clause has been referred to as "the liability clause"). MSG advised Mr Gold in relation to these mortgages and the restructuring but did not draw his attention to the liability clause.
4. In 1996 the Bank brought proceedings against Mr Gold and Mr Martin seeking repayment of all amounts due by them to the Bank, including sums owed personally by Mr Martin. On 15 March 1999, Jacob J gave judgment for the Bank. An appeal was dismissed by this court on 27 June 2000 (see AIB Group (UK) Ltd v Martin [2000] 2 All E.R. (Comm) 686). A further appeal was dismissed by the House of Lords in December 2001 (see AIB Group (UK) Ltd v Martin [2002] 1 WLR 94). The present proceedings against MSG were started on 31 March 1999. In effect, Mr Gold seeks an indemnity against the judgment which has been entered against him in favour of AIB.
5. MSG admits liability. However, each transaction on which they advised gave rise to a separate cause of action, and accordingly they contended before Neuberger J that all causes of action arising prior to 31 March 1993 were statute barred. They further contended, with respect to the causes of action arising after the 1993 restructuring, that Mr Gold had suffered no loss because he was already liable under the liability clause. That applied also to the 1993 restructuring itself.
6. The only issues which arise on this appeal are the judge's "amendment" ruling (to which I have referred above) and his decision on section 14A of the Limitation Act 1980, a defence added as a result of that ruling. Section 14A of the Limitation Act 1980 enables Mr Gold to rely on events occurring more than six years prior to the commencement of the proceedings against MSG if he can show that the earliest date on which he had the knowledge required for bringing an action in respect of the relevant damage and the right to bring such action occurred within the three years immediately prior to the commencement of the action. Section 14A defines the requisite knowledge for this purpose.
7. The judge decided the section 14A point against MSG and held that in all the circumstances Mr Gold's claim in respect of the pre-restructuring mortgages was not statute-barred. He proceeded to value at 55% the loss of the chance of negotiating an arrangement with AIB that he should be liable only for the partnership debts. But as Mr Davidson QC, for MSG, has properly pointed out to us on this appeal, it would not avail MSG to succeed in upsetting the judge's decision on the application of section 14A to the facts of this case unless he is able to disturb another conclusion of the judge. Mr Leolin Price QC, for Mr Gold, did not object to Mr Davidson challenging that conclusion, and we gave leave for the point to be taken although not contained in the Notice of Appeal.
8. The conclusion in question is at paragraph 104 of the judge's judgment. The judge concluded that, had MSG not been negligent in failing to advise Mr Gold as to the effect of the liability clause at the time of the 1993 restructuring, they would have been under a duty to advise Mr Gold that they had been negligent in respect of the earlier mortgages. Mr Gold, therefore, had a new cause of action based on the earlier mortgages, which arose at the time of the 1993 restructuring; and the damages which would result from the breach of that duty were effectively the same as if he succeeded under section 14A.
9. We indicated at the end of the argument on the amendment ruling that we were not in the appellant's favour. Mr Davidson then presented his argument on the "paragraph 104" issue. We also indicated at the end of that argument that we were not in the appellant's favour. This judgment contains my reasons for those conclusions. The court then proceeded to hear a cross-appeal brought by Mr Gold which challenged the judge's finding that Mr Gold was entitled to a 25% interest in the partnership. This conclusion is relevant for the assessment of damages. Accordingly, I will deal with the three issues in turn: the amendment ruling, the paragraph 104 point and then the partnership share.

The amendment ruling

10. At the outset of the trial Mr Gold sought leave to amend the claim and leave to serve a reply for three purposes:

(i)to assert reliance on section 14A of the Limitation Act 1980;

(ii)to assert reliance on section 32 of the Limitation Act 1980;

(iii)to assert a separate cause of action in regard to the failure to advise Mr Gold that he arguably had a cause of action in relation to MSG's failure to advise on the liability clause in the earlier mortgages. He said that that should have occurred in 1993.

11. In his judgment at the end of the trial, the judge ruled in Mr Gold's favour on section 32 of the Limitation Act 1980, and MSG have appealed against his judgment on that point. However, the parties are agreed about the outcome of their appeal against that ruling in the light of the subsequent decision of the House of Lords in Cave v Robinson Jarvis and Rolfe [2002] UKHL 18. Accordingly, we have not been concerned with that issue and nothing turns on the amendment ruling as regards the new defence raised under section 32.
12. The application was made at the outset of the trial and dealt with in the course of the opening statement by Mr Davidson on behalf of MSG. In his submissions, MSG very properly accepted that while these new defences should have been pleaded, they required no new evidence that would not otherwise have been called at the trial and would not involve any prejudice to MSG in the conduct of the trial. However, Mr Davidson on behalf of MSG went on to submit that the amendments would change the whole shape of the case. He added:

"So far, if anyone has been giving ... and I say nothing about this ... any consideration to what commercially might be done about this litigation in the round, that will have been done on the basis of the existing pleadings rather than the basis of the new pleadings. It may be that your Lordship will take the view that this is merely a matter which can be sorted out in relation to costs after the event ... [However] it does not follow in any particular case that the court can ever be sure that it knows everything that will have happened. Again, I am being very careful to say nothing about this case."

13. The judge's reply to that submission makes it clear that the judge understood that there had been without prejudice negotiations because his next observation was that:

"One expects that there might have been negotiations, the nature of which it is extremely difficult to think about ... and I should not be thinking about any way ... but I take the point that everybody has been proceeding not merely on the stage but behind the scenes on the basis of the claimant's case as pleaded."

14. Discussion then proceeded between counsel and the judge on the various complexities that might arise on the new limitation defences. Mr Davidson also submitted that the only real beneficiary of the amendment at the end of the day would be the Bank. The judge's response to that point was that a very substantial judgment had been entered against Mr Gold. Mr Davidson tells us, however, that the Bank has not proceeded to enforce that judgment by starting bankruptcy proceedings against Mr Gold. Nonetheless, as the judge said, it is a very substantial judgment. Mr Davidson also pointed out to the judge that MSG had not been a party to the action brought by the Bank and so had been unable to influence the course of that action, in particular by causing consideration to be given to a claim for rectification of the liability clause.
15. The judge ruled in favour of Mr Gold and granted the permission that he sought. His principal reason was that the new allegations would involve no prejudice in terms of extra evidence and that they were unlikely to lengthen the trial. He rejected the contention that MSG were not parties to the Bank's action, but he did not consider that that was a matter on which the permission to amend should hinge. The fact of the matter was that Mr Gold was facing a very substantial liability which could leave him either close to destitution or bankrupt if it was enforced. As there was no prejudice, the court should give leave to amend. The judge reserved for further consideration the cost consequences of his ruling.
16. As I have explained above, the court has not called upon the respondent on the amendment ruling. Had Mr Price made submissions to us, he would, I think, have been forced to accept that the new allegations were woefully late. The writ was issued on 31 March 1999 and the particulars of claim were served on 14 July 1999. MSG's admission of liability was contained in their original defence. The defence also stated that the claims were barred by the Limitation Act and expressly that, in so far as Mr Gold sought to rely on section 14A of the Limitation Act 1980, he was required to prove that he did not have the requisite knowledge as defined in that section prior to 31 March 1996. The defence also took the point that Mr Gold had already suffered loss by the time of the 1993 restructuring. No reply was served, nor was there any relevant amendment of the particulars of claim. That was the position when this case went to alternative dispute resolution (or ADR) in April 2000. Unfortunately, that process was not successful.
17. In September 2000, Mr Gold for the first time gave notice of his intention to rely on section 14A. In addition, his solicitors filed a case summary, which identified as an issue whether Mr Gold had the requisite knowledge as defined in section 14A. MSG produced their own summary of live issues for the trial on liability. They referred to the question of limitation and pointed out that Mr Gold had no pleaded case as to how he could invoke section 14A of the Limitation Act 1980.
18. Just before the start of the trial, the claimant served a substantial skeleton argument which set out Mr Gold's submission on section 14A; and, as I have explained, an application to amend the pleadings was made in the course of the opening.
19. In support of MSG's appeal against the judge's amendment ruling, the argument has revolved around the failed ADR. Mr Davidson has submitted that everyone would have hoped that this case could be settled by tripartite negotiations between Mr Gold, MSG and the Bank. In the practical world of litigation the object of Mr Gold and his advisers would have been to reach a settlement with MSG which enabled them to settle with the Bank, leaving some reasonable financial result for Mr Gold. In theory such an opportunity exists at any time. However, matters have now moved on to such an extent that MSG could never by any order of the court be put back in the position of trying to settle this case through mediation now to the equivalent position MSG would have been in if they had known in April 2000 of the strength of the section 14A claim. Mr Davidson points out that the consequences of the judge's amendment ruling could be extremely serious. The judgment might be above the insurance cover of the partners of MSG.
20. There is very little that Mr Davidson can tell the court about the ADR process, since the negotiations would have been without prejudice. We have been told, however, that there was a representative of the Bank present at the ADR at the start of the negotiations, although the Bank's representative was not prepared to confront Mr Gold. However, I accept Mr Davidson's submission that it would be professionally improper for him to come to this court and to contend that there was a possibility of prejudice as a result of the amendment ruling if at the time of the mediation MSG had factually known that Mr Gold would run the section 14A defence. There is, of course, no suggestion of any such impropriety.
21. Mr Davidson submits that MSG lost the opportunity to put forward a settlement offer which took account of the section 14A point. Moreover, he submits that it was not realistic to restart the mediation process at the start of the trial when the application for amendment had succeeded. Mr Davidson points out that, in order to succeed on his section 14A point, Mr Gold had to establish facts which lay within his knowledge. Moreover, if section 14A is not pleaded, it is reasonable for a party to take the view that the party who would otherwise rely on it does not consider that he can do so. In essence Mr Davidson submits that it is impossible now for the court to turn the clock back and to compensate MSG adequately by an order for costs. The right course, he submits, would have been to refuse the amendment. Mr Davidson, however, accepts that the question whether to give permission was a question for the discretion of the judge.
22. Mr Davidson has taken us to a number of authorities on amendment, starting with Cobbold v Greenwich Borough Council Court of Appeal, 9th August 1999. In that case Peter Gibson LJ, giving the judgment of the court, said this:

"The overriding objective is that the court should deal with cases justly. That includes, so far as practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party or parties caused by the amendment can be compensated for in costs, and the public interest in the efficient administration of justice is not significantly harmed."

23. Mr Davidson also referred us to Worldwide Corporation Limited v GPT Limited (Court of Appeal 2nd December 1998, also unreported) where the judgment of the court was given by Waller LJ. The other members of the court were Lord Bingham LCJ and Peter Gibson LJ. This case indicates a shift in emphasis since the inception of the Civil Procedure Rules. Waller LJ said:

"But, in addition, in previous eras it was more readily assumed that if the amending party paid his opponent the costs of an adjournment that was sufficient compensation to that opponent. In the modern era it is more readily recognised that in truth the payment of the costs of an adjournment may well not adequately compensate someone who is desirous of being rid of a piece of litigation which has been hanging over his head for some time, and may not adequately compensate him for being totally (and we are afraid there are no better words for it) `mucked around' at the last moment. Furthermore, the courts are now much more conscious that in assessing the justice of a particular case the disruption caused to other litigants by last minute adjournments and last minute applications have also to be brought into the scales."

24. At page 13 of the transcript Waller LJ said:

"We accept that at the end of the day a balance has to be struck. The court is concerned with doing justice, but justice to all litigants, and thus where a last minute amendment is sought with the consequences indicated, the onus will be a heavy one on the amending party to show the strength of the new case and why justice both to him, his opponent and other litigants, requires him to be able to pursue it."

25. That indicates that the court may be more reluctant to grant permission to amend at the last minute since the inception of the Civil Procedure Rules. However, the function of the appellate court remains the same. That was described by Lord Griffith in Ketterman v Hansel Properties Ltd [1987] AC 189 at 220 in these terms:

"Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear upon the exercise of this discretion. I do not think it is possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other. Furthermore to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence."

26. Accordingly, it is well established that the question whether to grant leave to amend is a question for the discretion of the judge. It is further well established that this court does not interfere in the exercise by a judge of his or her discretion except in very limited circumstances, for instance where the judge is plainly wrong or has taken into account irrelevant considerations or left out of account relevant considerations. I have examined the judge's decision with care, but in my judgment, the judge took into account the relevant considerations. These particularly include the element of prejudice. He could only be told in very indirect terms about the possibility of negotiations, and he clearly took that possibility into account, as can be seen from his observations which I have set out above. The decision as to how the various factors which were relevant were to be balanced was essentially a decision for him. Moreover, he was only bound to take into account, and could only take into account, matters in the material appearing before him. For obvious reasons, there was no evidence then, and there is no evidence now, as to the prejudice actually suffered by MSG as a result of the late amendment. Accordingly, in my judgment, the judge's discretion cannot be impugned.
27. There is a more general point raised by Mr Davidson's submissions. In essence his submission is based on the possibility of prejudice as a result of an amendment being sought subsequent to a failed mediation, being an amendment to raise a claim which could have materially altered the course of that mediation. On the facts, MSG clearly foresaw section 14A as a possible defence. They were, therefore, in a position to form a view about the chances of success on the facts so far as they knew them and, in addition, to counter the possibility that there were facts of which they were not aware, they could (if they thought it tactically wise) have sought to ascertain whether there were any further facts in the course of the mediation. In other words, it was possibly a high risk strategy simply to let sleeping dogs lie in the mediation so far as section 14A was concerned. Moreover, if there was any benefit in restarting the ADR process, this could have been considered in September/October 2000 when Mr Gold first indicated that he would be relying on section 14A. It would, in my judgment, be quite wrong if the effect of going through a failed mediation process was to force a party to litigation into a position whereby he could no longer seek to raise a new claim. The fact that he may do so seems to me to be something which the parties to a mediation must in future take into account in the process of mediation.
28. Nothing in this judgment should be seen as a discouragement to ADR. Quite the contrary, on that point I would reaffirm the point made by Brooke LJ, with which Robert Walker and Sedley LJJ agreed, in Dunnett v Railtrack plc [2002] 2 AER 850 at 853:

"Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the powers of lawyers and courts to achieve. This court has knowledge of cases where intense feelings have arisen, for instance in relation to negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond the powers of the court to provide."

29. ADR is potentially of great value to litigants, and nothing which I have said on this part of the appeal should be taken as any indication to the contrary.

The paragraph 104 point

30. Mr Davidson very properly accepted that this was a very short point. There is no appeal against the judge's conclusion that there was a duty to advise Mr Gold about the liability clause in the earlier mortgages at the time of the 1993 restructuring. In the judge's judgment this would inevitably have required them to have advised Mr Gold that they had been negligent in connection with the earlier mortgages and that he should seek separate legal advice, which would have led him to be able to bring proceedings against MSG based on their negligence under the earlier mortgages. Such a claim would have been within time. The judge went on to hold (paragraph 104) that as a result of MSG's negligence Mr Gold lost not merely the opportunity to sue MSG for any loss he suffered arising from their negligence, but he also lost the opportunity to renegotiate the liability clause at the time of the 1993 restructuring. If the first claim was added to the second, then in the judge's judgment "...the damages he can claim are effectively the same as if he succeeds under section 14A...". There is no appeal from the judge's holding as to the negligence in 1993.
31. Mr Davidson submits that the judge failed to consider whether, if Mr Gold had brought proceedings against MSG in 1993, his claim would then have been statute-barred, because the loss was already incurred by the execution of earlier mortgages outside a six year period starting in 1987.
32. Mr Davidson accepts that material for this purpose is exiguous. The judge was not asked to decide whether a claim brought in 1993 would have been statute-barred. The only dates when the knowledge of Mr Gold for this purpose was in issue were in 1992 and 1995. The judge found that Mr Gold had no knowledge on either date, and in addition he concluded that he could not have ascertained that he had the cause of action on either of those dates, though those matters are under appeal in relation to section 14A. Accordingly, there is simply no factual material upon which the judge could have concluded that the claim based on advice in respect of the earlier mortgages and arising in 1993 was itself statute barred. Mr Gold had a minimum of three years before 1993, and even if the section 14A appeal succeeds, the first date of the relevant period for the claim in respect of the earlier mortgages was 1990. Accordingly, in my judgment this appeal must fail and, as Mr Davidson accepts as a result that the section 14A appeal would serve no purpose, and it has not been argued before us.

The partnership share

33. The judge found that Mr Gold had a 25% share and thus rejected Mr Gold's claim that his share was 60%. The cross-appeal against this ruling is essentially on a question of fact. Mr Price has referred to the fact that the bank mandate was signed only by Mr Martin and Mr Gold. In addition, he has referred us to draft "heads of agreement" dated 8 April 1984, drawn up and signed by Mr Martin, which referred to there being two partnership shares, one held by Mr Martin, being 40%, and the other held by Mr Gold and his brother, Mr Howard Gold, being 60%. There is no evidence that these heads of agreement were ever agreed. Mr Price also referred us to declarations contained in transfers of property dated 24 July 1986 and 30 July 1990 in favour of Mr Martin and Mr Gold, declaring that Mr Martin and Mr Gold held the land on trust for themselves as tenants in common as to 60% for Mr Gold and 40% for Mr Martin.
34. The judge dealt with Mr Gold's partnership shares at paragraphs 141 to 153 of his judgment. He observed that at the inception of the partnership the 60% share was split 35:25 between Mrs Gold and Mr Gold. Moreover, each set of annual accounts prepared for the partnership, signed by all three apparent partners, clearly indicated that that situation continued. Mr Gold's case was that in 1985 or 1986 he effectively agreed to purchase Mrs Gold's partnership share. The judge observed that there was documentation to show she had no effective interest in the partnership and that the only partners were Mr Gold and Mr Martin. Moreover, Mr Howard Gold, the partner of MSG advising Mr Gold, proceeded on the basis that his wife was not a partner; but this may have been because she had no liability under the liability clause in any event. The judge recalled that Mr Gold and Mrs Gold had given evidence and that they had been at pains to emphasise that the content of the annual accounts were true and not intended to deceive anyone. On the other hand, each said that Mrs Gold had effectively transferred her interest in the partnership to Mr Gold in 1985 or 1986. In particular, Mrs Gold had said that she anticipated receiving a sum equal to her initial investment in the partnership. On the other hand, the judge specifically found that the evidence of Mr Gold and Mrs Gold, when faced with the contents of the annual accounts, was confused. The judge further found that it was contemplated that Mrs Gold would be involved in the activities of the partnership in relation to some interior decorating and design work on some of the properties, but that it soon became clear to her that she could not work with Mr Martin. Therefore, any practical involvement on her part soon ended. There was no evidence that the parties had agreed that Mrs Gold would cease to have any beneficial interest in the partnership. Counsel (Mr W A Ainger) had written two opinions in July and October 1995, and according to the judge they recorded the fact that Mrs Gold was a 35% partner, without suggesting that she had ceased to be a partner. The judge considered that the transfers of land were not of particular assistance because that was the way in which the transfers had been conducted from the start.
35. The judge then expressed his conclusion that Mr Gold had only a 25% partnership share. In support of his conclusion, he listed some eleven factors. Among the first of those factors was the fact that each set of annual accounts signed by Mr Gold and Mrs Gold clearly showed that Mrs Gold retained a 35% interest and that those parties (Mr Gold and Mrs Gold) had accepted that the annual accounts were intended to be accurate and indeed that they were accurate.
36. Mr Price for Mr Gold has put forward a number of explanations for the accounts. In particular Mr Price submits that, on Mrs Gold's retirement, the partnership continued simply for the purpose of winding up its affairs, and accordingly Mrs Gold was properly recorded as a continuing partner for that purpose. She was not, however, holding herself out as a partner. Mr Gold must have become a trustee for her. Accordingly, it was Mr Gold's duty to bring proceedings on her behalf as well as his own. Moreover, in one of his written opinions counsel, Mr Ainger, had not referred to the 35% partnership share, contrary to what the judge had said that the judge had failed to take proper account of Mrs Gold's oral evidence that she was not a partner. The judge gave too much weight to the annual accounts and did not consider why the annual accounts were in that form.
37. In response Mr Davidson submits that this was a question of fact. The judge took as his anchor point the accounts. He was entitled to do this and to cross-check the oral evidence about the events some fifteen years earlier by reference to his documents. The explanation which he accepted was in effect that it was only the working relationship between the various partners which had broken down so far as Mrs Gold was concerned. It was a question of her practical involvement. Moreover, the judge found that there was no evidence that Mrs Gold ever received repayment of her investment. The judge, therefore, was entitled to come to his conclusion having evaluated the oral evidence and documentation.
38. Moreover, if Mr Gold was a trustee of 35% of his share for Mrs Gold, he had failed to plead this. It would be a relevant factor, since he would hold the damages on trust for Mrs Gold. The reality, however, was that he was trying to bring his case as owner of a 60% share in the partnership.
39. In my judgment the judge carefully weighed all the factors relevant to his decision on this question of fact. He failed to mention the fact that Mr Ainger's first opinion did not refer to Mrs Gold as a 35% partner. But this was only one of a number of factors and not one of the factors to which he gave principal weight. Moreover, the judge had heard oral evidence which he described as confused. It is not possible for an appellate court to reach the conclusion that he was wrong and should have given greater weight to the documents than he did. In my judgment, Mr Davidson is correct in his submission that this finding of fact cannot now be disturbed.
40. Accordingly, I would dismiss the cross-appeal.
41. MR JUSTICE BUCKLEY: I agree.
42. LORD JUSTICE PETER GIBSON: I also agree.
Order: Appeal dismissed. Cross-appeal dismissed. There will be a declaration in addition to that contained in paragraph 6 of the order dated 21st December 2000 that the claimant is entitled to indemnity from the defendants in respect of all the costs payable by the claimant, Alan Gold, whether to the bank, to his solicitors or to both of them in connection with his appeal to the Court of Appeal and the House of Lords. The appellant is to pay to the respondent 80% of the costs of the appeal on the standard basis. (Order does not form part of approved judgment)