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 TECHNOLOGY AND CONSTRUCTION COURT
SHEFFIELD DISTRICT REGISTRY
(His Honour Judge Bullimore)

		Royal Courts of Justice Strand London WC2 Wednesday, 1st May 2002

Wednesday, 1st May 2002

1. LORD JUSTICE BUXTON: This appeal has a somewhat unfortunate history, for which I may be myself in part responsible. The original action in which this appeal arises is in a claim between two claimants, Mr Charles Hall and a company called Apex Racing Ltd, and a corporate defendant, Motor Sport Vision Ltd, which has been referred to throughout and in the documents as FPA and I will, in general terms, so refer to it in this judgment.
2. The original claim arose out of an agreement between Mr Charles Hall and the defendant whereunder the defendant was to enter Mr Hall in what was described as the 1999 Formula Palmer Audi Motor Racing Championship. Broadly speaking - and I put it very broadly - the arrangement was that Mr Hall would pay sums of money, amounting to £8,000 per month, for services that were to be provided by FPA. Those included providing an Audi racing car to Mr Hall for him to use in races and, as a condition of that implied into it, that the car would be in a raceworthy condition at the start of the test session and at the start of each race week end. It was also agreed that a mechanic would be dedicated by the defendant as Mr Charles Hall's mechanic for the season. The potential benefit to Mr Hall was that he would be able to compete in the races in question and hopefully to win prizes in them.
3. However, the parties soon fell out. Mr Hall alleges that on seven occasions between 8th March 1999 and 19th April 1999 a car was presented to him which was in various ways either unsafe or, at the very least, not fit to be driven in a competitive race. Following those incidents, he wrote to the defendants on 23rd April, effectively repudiating the contract and saying it was all over between them. He commenced the present proceedings some three months after that, claiming return of the monies that he had already paid (£18,000), return of an engine that he had provided and damages, the damages to be assessed on the basis of lost opportunity to compete in the races.
4. The defendant counterclaimed in a substantially larger sum, saying that the contract had not been effectively repudiated, and that they were therefore owed the sum that Mr Hall had agreed to pay under the contract, amounting to some £80,000. The defendant, FPA, also brought into the action as a Part 20 defendant Mr William Hall, who is Mr Charles Hall's father. They did that because they considered that Mr William Hall was the moving spirit in Apex Racing Ltd and also considered that he, and not Apex, was the guarantor of Mr Charles Hall's performance under the contract. Mr William Hall's presence in the action is not, however, merely attributable to a matter of pleading. He is important in this case because it is accepted on all sides that he played a major role in his son's career; that he was a person of considerable experience in the motor racing world; and that he took a close interest and involvement in the details of Mr Charles Hall's motor racing and the details of his relations with FPA, in particular in relation to the incidents of which complaint was made. How much further Mr Hall was involved in the matter, apart from as I have just indicated, and how far he was engaged in matters other than those that I have set out, are matters of controversy in this appeal, and I shall have to return to them. But I believe that I have so far stated no more in relation to Mr William Hall than is common ground, and was certainly believed by the judge below to be such.
5. The claim as originally pleaded said in its paragraph 6 that the defendant:

(1) failed to provide the claimant with a raceworthy and/or safe car; and

(2) failed to provide a mechanic of the claimant's choice.

6. There were then set out a series of particulars of breach according to the dates upon which incidents complained of occurred. The exact status of those incidents as breaches, rather than evidence of such, is perhaps not wholly clear, but we do not need to concern ourselves with that. I do not here set out those breaches, which are to be found in paragraph 6 of the particulars of claim - statement of case, as it is called - but I shall have to revert to some of them in the course of this judgment.
7. The matter has clearly been heavily contested between the parties, even before the events to which I shall shortly come. The defendant had sought to strike the claim out, and there had been a whole day hearing before His Honour Judge Bullimore at which they were unsuccessful. They were more successful, however, in meeting some considerable part of the claim as to repudiation: because they established in other proceedings, to the judge's satisfaction, that a sum of money had been paid the effect of which was to exclude as repudiatory all but two of the particular incidents to which I have just referred. There were also a number of exchanges as to discovery, to which I will have to revert at a later stage of the judgment.
8. The matter came on for trial (and I emphasise trial) before His Honour Judge Bullimore, who had had the conduct of the case throughout, in the Technology and Construction Court in the Sheffield District Registry on 3rd October 2001. On that occasion the judge was met with an application to amend the statement of claim and to adduce new evidence, which he refused and from which refusal this appeal is brought. That application was based upon a witness statement that had only shortly before that come into the hands of the claimants, and dated 18th September 2001 - that is to say, but a fortnight before the trial - made by a Mr Martin Angeloni.
9. Mr Angeloni had been a senior mechanic at FPA, the defendants, but had left their employ at some time before September 2001. In his statement he was critical of FPA's general way of conducting its business and commented on a number of the incidents complained of in the statement of claim, he having been a mechanical officer of FPA who had been concerned with some of them; indeed, in one case (to which again we will have to return) he had been identified, albeit anonymously, as someone who had given information to the claimants about the nature of the event. However, the part of his witness statement that was of particular interest to the claimants, and which caused them to make their application, was paragraphs 14 and 15 of that statement, which read as follows:

"14.FPA did not have any records or drawings as to how the car should be prepared. In addition, they did not maintain records as to what should be checked after every test or race nor check lists or torque settings for components such as nuts and bolts. I would have expected all these steps to be undertaken in the interests of safety.

15. FPA did not undertake crack testing (to ensure that parts were not damaged) or lifeing of important parts. Some parts are so vital to the car that they should always be replaced after a certain time, in any event. This did not occur. In addition, second-hand parts were sometimes used to prepare the 98 cars for the 99 sessions without the relevant testing. Again, I believe that this failure to undertake such routine checks and replace worn or "lifed" parts jeopardised safety irresponsibly and unnecessarily."

10. On the basis of that the claimants sought to amend the claim to include, in particular, the complaint about failure of FPA to undertake crack testing and to undertake lifeing of important parts; but also generally to complain of what they described as systemic failures on the part of FPA in matters of safety and preparation; as opposed to, as one understands it, the individual incidents of which they complained in their pleadings. I do not here go into the way in which the case was sought to be amended, but I shall have to say something about that hereafter.
11. The application was supported by a witness statement by a Mr David Hayle, which appears to be of an expert nature: because Mr Hayle says that he is a director and chief engineer of another motor racing team, and explains his function in that capacity, saying also that he knows about FPA. In paragraph 3 of that statement he says this:

"As chief engineer at Fortec [that is his company] I am responsible for the engineering and preparation of all Fortec cars. I am also responsible for the race day set-up on all our Formula 3 and Renault TOCA Sport 2000 cars."

12. He then goes on to say in some detail why crack testing and lifeing are, in his view, important, including in paragraph 17 of the statement the following:

"I am informed that FPA used parts from previous seasons without maintaining a record of the history of the part and without crack-testing. These practices would be wholly unacceptable in Fortec (and I believe in any comparable motor-racing team) as they unnecessarily expose the car and drivers to risk of component failure."

13. It is clear, on reflection, that the complaint that the car was inherently dangerous and inherently raceworthy just because crack testing and lifeing had not been performed on it was, and is, a complaint of a radically, it might be said completely, different nature from the complaint contained in the pleadings, which is that the car suffered certain apparent, in fact very apparent, mechanical defects, failures or breakdowns when it was actually being driven. The judge was asked to allow the pleadings to be amended to establish that case. It would, of course, have been inevitable, as he recognised, and so did everybody, that if that application was allowed the trial could not go on, and that a future trial would be much more extensive than the trial as envisaged, involving the adduction of expert evidence.
14. The judge heard submissions and read evidence about this application over a period of two days, though it is fair to say that not all of each day was taken up with this business. The judge also, it will be recalled, had been intimately involved in this case from the beginning, including hearing a number of interlocutory applications, not least the one-day hearing to which I have already referred. He rejected the application, pointing out the difficulties that I have already indicated, but then going on to give what he described as his main reason for refusing this application. It is only fair to the judge to set that out in full, even though that will take up some substantial part of this judgment.

"However, my main reason for refusing this application is this: the Claimants say that all this comes upon them out of the blue and it is no fault of theirs that it was not known about. The Defendants assert roundly that they should have had it in mind before. In my view, on the evidence that there is, Bill Hall is not just a successful businessman who wants to further his son's racing ambitions. Both having regard to the statements that he has put before the court and what has been said by counsel on behalf of the Claimants, he is an experienced racing driver, who knows his way about the motor racing world. I am quite satisfied that this case has been forwarded with him as the guiding hand. Throughout the period to which the litigation relates he has asserted how he saw things going wrong, which the Defendants and the mechanics failed to rectify, or were themselves doing wrongly. He has always asserted the car was not being properly prepared and set up, that adjustments were badly made, and in some instances the Defendants' failures resulted in an unsafe condition of the car, which obviously was to be used at high speeds.

In his submissions Mr Hunter went further, and the matter is helpfully set out in the transcript which has been prepared and arises at pages 19, 20 and 21. Mr Hunter was asserting to me that:

`The Claimants had no idea that during Charles' time at Formula Palmer Audi', which is the Defendant's concern, `those tests had not been carried out', in regard to safety, crack testing and the like.

He went on:

`If they had suspected that, of course, they would have investigated it, but they did not. So to suggest that somehow they should have divined that this was the case and then gone and sought evidence to support it is, in my submission, unreasonable.'

I then asked him:

`Is it conceded or asserted that they knew -- that is the Halls -- that the proper practice in regard to racing cars was to carry out such tests and to keep such records?'

Mr Hunter began to respond. I did not think he quite grasped what I was asking about, so I asked for elucidation of this

`...is it being said by your clients "Well, of course, we always knew there ought to be crack testing and lifeing and these records ought to be kept and we had always assumed those things were done. Now we discover they have not been done", or is it being said by them "Well, of course, despite our involvement in racing, we did not know what the proper practices were in regard to testing and record-keeping, but now we know these things ought to have been done and we have discovered that they were not done"?'

Mr Hunter roundly said:

`It is the former.'

He then referred to the experience of both the Halls, and in regard to the father, William, he said that he had run a racing team very much like Formula Palmer Audi. Charles also knew about crack testing and lifeing of parts. They were familiar with what other teams did. I then put the point to him:

`But they never enquired into any of this, despite their unhappiness allegedly with the Defendants and their belief that things were not being properly prepared, and bolts were dropping out, and all the rest of it?'

The answer is essentially that they did not enquire into it.

Now, it seems to me that to say that the penny suddenly dropped when Mr Angeloni turned up in September is really not good enough. Here we have a very experienced man in the field, who knows what the proper practices are said to be, who is very anxious about safety issues, knows the importance of proper records being kept, faced with incidents which are said to make his son's car unsafe, and he does not insist on getting the records that he believes will be kept and ought to be kept.

It is further asserted that the matters which are complained of are the very sort of thing that records, check lists and so on would have prevented happening. It is simply not good enough to say the Defendants' aggressive posture on disclosure put the Claimants off. The Claimants have professional advisors of the highest calibre, and Bill Hall is no shrinking violet himself. In my view the Claimants ought to have had this line of enquiry well in mind from the beginning. In fact, they did not and simply failed to pursue it.

If there is some suggestion that the previous solicitors were at fault, then I do not think the Claimants can leave it all to them. They had specialised knowledge, they assert, about what went on and ought to go on in this field of life, and they ought to have made sure proper enquiry was made. If the matters now raised are as important as alleged, it is impossible to understand how the Defendants' alleged failures have not been highlighted from much earlier. There is fault about the lateness of the issues being raised and plainly, in my view, it falls on the Halls. This is the fifth attempt, I think, in two years to get their pleading right, and it is extraordinary that it has not been raised before.

Further, I am influenced to a degree, I am bound to say, by this consideration. I think it is at least arguable that this is all a variant on the initial assertions of unraceworthiness and lack of safety in the car. It is just moving matters back one stage as to why that alleged state of affairs may have occurred. There are obviously issues of remoteness and causation between record-keeping and things going wrong on the track, and it is perhaps not right to address those now, but I do not think they are going necessarily to be easy to overcome.

I conclude, therefore, that the matters now being raised were well capable of being raised before. Either the Claimants knew of these alleged failures and decided not to go down that line; alternatively, they knew what procedures should be followed and failed to discover and assert that the Defendants were failing to follow them. The only effort that was made for specific disclosure, as far as I know, was to see CVs of all the mechanics and the winter work sheets, rather than those documents which might have related to the time when Charles was actually driving the car."

15. The judge refused permission to appeal. An application was made to me on paper for permission. I took the view on paper, and in the light of the matter that had been put before me, that the guiding rule was, and continued to be, that in looking at an interlocutory decision of this type this court should not interfere unless satisfied that the judge's decision was plainly wrong. That test is not challenged in the appeal. But, for the record, I will say that it was based upon the observations of Rose LJ in Croft v Jewell [1993] PIQR at page 273 and reinforced, in the world of the Civil Procedure Rules, by paragraphs 30 to 33 of the judgment of this court in Tanfern v Cameron McDonald [2000] 1 WLR 1311. My view was that it could not be said that the judge's conclusions just set out were plainly wrong.
16. That application was renewed before me in court by Mr Hunter on behalf of the present appellants. I was persuaded that permission should be granted, even though I expressed some hesitation. I did that, as I indicate in paragraph 11 of that judgment, because, first of all, it was put to me that cracking and life testing were completely different from race day set-up; and, second, that the two Mr Halls, even though they were very knowledgeable about what happened on race day set-up, would not know anything about earlier preparation which would have included, or in this case did not include, crack testing (in the way that the Halls say it should be done) and lifeing. It therefore appeared to be arguable that the judge's basis for finding, as he did, that the Mr Halls knew, or should have known, and should have enquired about, the matters that were now sought to be introduced on the basis of Mr Angeloni had been misconceived.
17. I go into that history of the matter for no reason other than that it to some extent illuminates the issues on the appeal. In this appeal we are not concerned, of course, with re-running the permission application; because permission has been granted and this court is now seized of the appeal.
18. As I have said, crack testing and lifeing and complaints about their absence present a new case from that which is to be found in the pleadings. It is true that the judge at the end of his observations just set out casts doubt on that, thinking that this might all simply be a variation of the existing assertions of unroadworthiness. That was a background factor, and only that, to his judgment. He was not, I think, right if he thought that the two were the same, but he could be forgiven for some uncertainty on that matter. That was because, first, in the pleading for which permission was sought (the amended pleading) cracking and lifeing, or the absence thereof, were not pleaded as a completely separate ground of complaint - as they now have been in response to various observations that I made on the permission application - but were included in the particulars of the original breach really pari passu with the original incidents, none of which had been withdrawn, and which are presented, as I have said, as not merely evidential but as being in themselves breaches of the obligation. Second, no doubt understandably in the hurly-burly of the exchanges before the judge, it was at least at some point suggested to him that the new allegations were supportive and demonstrative of the old particulars. I refer in that respect to what was said by Mr Hunter at page 27 of the transcript of the hearing at line 18. But that is only in passing: because although it does demonstrate the difficulties that this case caused the judge, that was not the basis upon which he decided the case. He decided the case, as he said, on the basis that it was far too late for these matters to be introduced, and that even without Mr Angeloni it was incumbent on the Halls, and open to them as men experienced in the industry, no-one more so than Mr William Hall, to have investigated or to have been aware of the possibility of investigation of these points much earlier in the proceedings.
19. The judge had put before him, and to some extent referred in his judgment, to two different categories of consideration that led him to that conclusion. The first was the general knowledge (if I can put it in that way) of, in particular, Mr William Hall, and his understanding of the racing industry and the way in which cars are prepared. But that is not a relevant or fair consideration in the contention of the appellants. That complaint is based upon, or at least partly based upon, the stark distinction that they now say exists between race day preparation (where it is agreed that Mr William Hall was active in the pits and intervened vigorously, indeed, we were told without contradiction, indicated to the defendant how a car should be set up) and the overall background preparation of the car. That distinction, for reasons good or bad, was only faintly put before the judge, and there was no evidence to support it. Mr Hunter says, reasonably enough I think, that was because this point about Mr William Hall only emerged late in the day. But I do not think, even if that criticism is, if not justified, at least well-based, that that in itself undermines the way in which the judge approached this matter. He looked at the general knowledge and standing of Mr William Hall. Although he had never heard Mr Hall give evidence, I have no doubt at all that he heard a great deal about him. Indeed, the appellant's counsel had spoken in expansive terms of Mr Hall's expertise in the motor racing industry in those very proceedings before the judge. The judge formed the view that if things went badly wrong, as on the appellant's case they clearly had, in connection with a motor racing event and, more particularly, a motor racing event in which Mr William Hall's son was participating, then he might have been expected to bring his knowledge of the industry to bear and enquire into it.
20. I would go no further than to say that the impression that I received on the permission application was that it is axiomatic in the motor racing industry at all levels that lifeing and crack testing would take place - a view expressed by Mr Hayle on behalf of the appellant in the witness statement I have referred to. There was other evidence before Judge Bullimore that contradicted that. Two witnesses from FPA, who said it was not FPA's practice, and another witness, who denied that it was the practice in the industry at large, at least at the level at which FPA operated.
21. If the matter goes further, that no doubt would be a matter for a considerable contest. But the fact that there was that uncertainty before the judge, as it now appears, and that Mr Hayle's evidence was not uncontradicted, seems to me at least to demonstrate that the judge cannot be said to have been plainly in error on the evidence before him in thinking that the Halls would at least have considered, as people expert in the field, whether crack testing and lifeing were indeed taking place. Their case, of course, I accept, is that it never crossed their minds that it was possible for crack testing and lifeing not to be occurring. But at least, as a background to his approach, the judge was entitled, in my judgement, to have in mind (and I put it no higher than that) the general knowledge of the two Halls and, more particularly, Mr William Hall as to the industry and the way it operated.
22. More particularly, however, there were a number of matters which the judge considered and which were put before him, some of which he mentioned, some of which he did not, which in my judgement entitled him to think that the Halls, and therefore the claimants, had been put on notice as to problems of a more far-reaching nature at FPA than those that were pleaded; and, as a corollary of that, should have instituted enquiries which, if pursued, would have revealed that, rightly or wrongly, lifeing and crack testing was not taking place. The first is the matter of the records. We have already seen that Mr Angeloni criticises FPA for not keeping records; and it is part of the complaint now made against them that records were not kept; and, if records are not kept, safety is likely to be compromised. It will be recalled that Mr Hayle said in the passage I have already quoted:

"I am informed that FPA used parts from previous seasons without maintaining a record of the history of the part and without crack-testing. These practices would be wholly unacceptable."

23. In the particular matter of records, the judge was critical of the Halls in not seeking or making further enquiries about the record position of FPA. The sole enquiry that was made was an application for specific discovery about what are called the "winter work sheets". It was the case, expressed by the then solicitors for the claimants, that the sheets would be revealing about a particular incident of which complaint was made in which Mr Hall had discovered that there were no bolts at all in the left side of a cross-member of the car. On 27th June 2000 the solicitors wrote to FPA's solicitors asking for the curriculum vitae of the engineer, about whose qualifications they were deeply suspicious, and then adding this:

"Similarly we consider that the `winter work sheets' are directly relevant to the issues in this matter. Whilst it is your case that the bolts in the left hand side of the cross member simply dropped out, it is our case that the bolts were never in fact fitted. It is for this purpose that we require sight of the winter work sheets and again unless these documents are disclosed to us within 7 days of the date of this letter we will make the appropriate application to the Court."

24. There had been previous correspondence on that matter, and they got the reply within seven days:

"We are instructed that our client has no such documents to disclose."

25. It therefore must have been apparent that FPA had no winter work sheets at all. No further attempt was made to pursue that point, or to draw any inferences from it, or to correspond further in any form of critical terms with the solicitors.
26. The judge himself raised that point at page 50 of the transcript of the hearing on Day 1, saying this:

"JUDGE BULLIMORE: Despite all his experience himself running teams and all the rest of it he has never asked: `Where are the records for looking after these motor cars? Where are the check lists like pilots have before they take off?' He has never done that?

MR HUNTER: Well, your Honour, he went down that route by making his specific discovery application.

JUDGE BULLIMORE: But he wanted the CVs of all the mechanics.

MR HUNTER: Yes.

JUDGE BULLIMORE: Well, that hardly bore on the issue of the records in relation to the individual vehicles.

MR HUNTER: At that stage it did. What he asked for was two categories: the CVs of all the mechanics and the winter work sheets. Now the winter work sheets would at least in part have fallen within this category of missing documentation described by Mr Angeloni."

27. Then the matter went on to another point. But the judge clearly identified the striking oddity that in what might be thought to be an important, indeed central, aspect of the case and directly linked to one of the complaints already made, there was no record of any sort; and he expressed that concern, quoting something that he had said to counsel, at page 23 line 5 of his judgment, which I venture to repeat:

"`But they never enquired into any of this, despite their unhappiness allegedly with the Defendants and their belief that things were not being properly prepared, and bolts were dropping out, and all the rest of it.'

The answer is essentially that they did not enquire into it."

28. I have to say I have no doubt, and the judge had no doubt, that the difficulty as to records and the fact that FPA said they had no records about their winter preparation, should have put the claimants on notice.
29. It is disputed before us as to whether the winter work sheets in themselves would have demonstrated whether or not cracking and lifeing was taking place. But, for my part, I find it difficult to see how the process that Mr Hayle refers to could have been going on universally if, when one comes to look at what is being done for winter set-up, one finds no records at all. But it was not necessary for the judge to go that far. All that was necessary for him was to take the view, which he strongly did, that further enquiry should have been made once this surprising - on the claimant's case very surprising - matter came forward that there were no records at all of winter work; and it should be noted that the defendant's solicitor did not say, as one might have expected him to say, or might have expected the claimants' solicitors to ask him if he did not say, We have these records, but we destroy them every six months, or something like that. The enquiry was about records of testing for the immediately previous season, and their absence, should have put the claimants on enquiry.
30. The next two matters relate to two particular incidents already pleaded. The first is an incident that took place at Thruxton on 11th April 1999, set out in the pleadings where various complaints were made about the preparation of the car. Then this was said:

"Furthermore, Roger Cowman [he, I think, is a representative of the plaintiffs] was told by phone after the race by one of the senior engineers that a `rose' joint in one of the push rods was stripped. This apart from having potential fatal consequences meant that the shock absorber on this push rod would only work in `Bump' and not in `Rebound'."

31. The pleading goes on to say that that explains the problems that Mr Charles Hall had in driving the car on that day. The senior engineer referred to was in fact Mr Angeloni, though only represented there anonymously.
32. The defendants say that this incident should, on reflection, have given rise to further enquiry by the Halls. The case that the defendants put is that the incident did not take place at all. But they say, and in my judgement justifiably, that if it is the claimants' case that it took place, it should have been properly pursued; and it raised questions about the overall practices of FPA. Whilst I hesitate to attribute submissions to counsel without great care, it is undoubtedly the case that Mr Hunter did say to the judge in relation to this incident:

"Rose joints should not be allowed to get anywhere near being stripped or worn out. If there was a lifeing procedure in place, that would not happen."

33. Of course, Mr Hunter made that submission against the assumption that, as he said, we now know what was going on, through Mr Angeloni. But what he said certainly, if I may say so, has the ring of sense about it. Whether this joint was stripped through mechanical operation or whether it was worn out, questions had to be raised about the overall practices of the defendant company.
34. Third, the question of difficulties with the bolts. I have already referred to a number of cases where, as pleaded and as the judge identified, bolts had fallen out of the car or the car had been set up without them. In the pleading as it now stands that is said to be illuminatory of lack of system. It is another matter that in my view, and in the judge's view, should have raised questions, not just about the incompetence of the mechanics, but about the general practices of FPA. If the car was set up without bolts at all, that should not be attributed simply to the failings of the individual mechanic. These are matters that the judge relied on, and in my judgement was entitled to rely on, in determining whether he should allow these amendments.
35. As I say, I remind myself of the test, which is whether he was clearly wrong. Now that the matter has been gone into in considerable detail, I cannot accept the submission that he misunderstood the case to the extent of coming to conclusions about it that were clearly wrong.
36. It was said, Well, even if the Messrs Hall had had the suspicions it is said they ought to have had, what could they have done about it? Faced with the blank wall of no documents on discovery, they could not amend their pleadings - that would be opposed - and, in any event, even if they simply did know enough, as alleged, they did not suspect enough in order to enable the pleadings to be amended. I think there are two things to say about that. The first is that I do not accept that it would have been impossible or improper on the basis of the material that they knew about, added to expert knowledge of what ought to happen in motor racing, particularly in regard to record keeping, for an amendment to be pleaded to this claim: not of course at that stage pinning down lifeing and crack testing, but opening out the case in that direction. Secondly, however, that is what they did not do. If they had come before Judge Bullimore and said, Well, yes, we were worried about this and we tried to plead it, but the other side threw us out and said that it was improper; would not give discovery; obstructed us so we could not get any further, then they would have been in a much stronger position, when Mr Angeloni gave chapter and verse, to say that the pleading ought now to be amended.
37. The judge's criticism is that they took no step. In my judgement that was a justifiable view for him to take.
38. In my judgement, therefore, this matter fell comfortably within the discretion of the learned judge, and he was right to come to the conclusion that he did. He also expressed considerable concern about extension of the case, the expense and burden of the new pleadings, and matters of that sort. But he did not decide the case on that basis, and I make no comment about whether he would have been entitled to decide the case on that basis had he come to a different conclusion on the central reasons which I have discussed.
39. Therefore, despite the persistent, clear and helpful submissions of Mr Hunter that we have had today, I would dismiss this appeal.
40. MR JUSTICE JACKSON: I agree.
41. The claimants, Mr Charles Hall and Apex Racing Ltd, and the Part 20 defendant, Mr William Hall, put forward a single case. For simplicity, I shall refer to these three parties collectively as "the claimants".
42. On 3rd October 2001 His Honour Judge Bullimore gave a lengthy and careful judgement refusing the claimants leave to re-re-re-amend their statement of case. I would summarise the reasons which the judge gave in the course of his judgment under four heads:

(1) the amendments involved a dramatic departure from the claimants existing case;

(2) the costs of the litigation, which were already disproportionate, would be vastly increased;

(3) the trial, which was due to start on the day of the claimants' application, would be substantially delayed;

(4) the proposed amendments related to matters about which the claimants were, or should have been, alerted at a much earlier date.

43. In the course of this appeal, which has been pursued in numerous and detailed skeleton arguments and at two oral hearings (one, I add, relating only to permission), none of the reasons given by the judge has been undermined. The claimants' application to re-re-re-amend their statement of case in such a fundamental way on the first day of trial was an application which was not consonant with the overriding objective contained in Part I of the Civil Procedure Rules. The judge quite rightly had regard to the overriding objective in refusing permission to amend.
44. In my view the judge's exercise of discretion cannot be challenged in this court. Accordingly, this appeal must be dismissed.
Order: Appeal dismissed. The appellants will pay the costs of the defendants in the appeal subject to detailed assessment. We give no direction to the Costs Officer as to the disallowance of the costs of any part of the evidence. We order that £10,000 should be paid on account within 28 days. We do not grant, subject to one point, a costs order in respect of the application to set aside the permission. We order that the defendants recover their costs in respect of the preparation of what is described as Bundle 1, the small bundle for Respondent's application. Save for that we make no order for costs. The £17,500 paid into court pending this appeal to be paid out to the defendants's solicitors within 14 days. (Order does not form part of approved judgment)