England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Nicholas Strauss QC (sitting as a High Court Judge)
HC12D04110

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/11/2015

Lord Justice Kitchin:

Introduction

1. This is an appeal against a costs order made in these proceedings by Mr Nicholas Strauss QC, sitting as a deputy judge of the High Court, on 14 April 2014. By this order the deputy judge dismissed an application by Mr Otuo to re-amend his particulars of claim to include an allegation that Mr Brierley had defamed him, awarded Mr Brierley 80% of his costs and ordered Mr Otuo to pay to Mr Brierley £20,000 on account of those costs.
2. Upon this appeal, brought with permission granted by Sir Stanley Burnton, Mr Brierley contends that the deputy judge fell into error in two respects: first, he wrongly discounted the costs which he awarded to Mr Brierley by 20%; second, he erred in failing to make an order precluding Mr Otuo from pursuing the rest of his claim unless he complied with that part of the order which required him to pay the £20,000.

Background

3. These proceedings have a long and complex history and arise from a partnership agreement entered into by Mr Otuo and Mr Brierley in 2008 for the purpose of acquiring and managing properties in London. In early 2010 Mr Brierley became concerned that Mr Otuo was failing to account for rental receipts and make mortgage payments in respect of various partnership properties in accordance with the terms of the agreement. He received no satisfactory response to his enquiries and accordingly, in March 2010, issued proceedings against Mr Otuo in the Chancery Division of the High Court.
4. On 14 January 2011 Mr Brierley and Mr Otuo entered into a settlement agreement which brought the proceedings and the partnership to an end. By clause 4 of that agreement, Mr Brierley undertook to ensure payment of such sums as might be due to a number of partnership creditors identified in schedule 2 to the agreement. One of these creditors was Mr Robert Wee.
5. In August 2011 Mr Otuo issued these proceedings against Mr Brierley. He asserted that, in breach of the settlement agreement, Mr Brierley had failed to sell various partnership properties; had neglected to pay the partnership creditors; and had failed to indemnify him in respect of a number of payments he had made to those creditors. He accordingly sought damages and specific performance.
6. In his defence to the particulars of claim, Mr Brierley contended that the creditors relied upon by Mr Otuo were not truly creditors of the partnership at all; he put Mr Otuo to proof that he had paid any monies to any partnership creditors; and he denied that he was obliged by the settlement agreement to sell any properties at Mr Otuo's direction.
7. Thereafter Mr Otuo issued a battery of applications, a number of which resulted in costs orders against him. Our attention has been drawn in particular to the order of Mr Anthony Elleray QC, sitting as a deputy judge of the High Court, dated 24 September 2013 which required Mr Otuo to pay to Mr Brierley the sum of £30,000 on account of costs, and an order of Newey J dated 24 June 2013 which required Mr Otuo to pay Mr Brierley's costs summarily assessed in the sum of £10,000. Neither of these orders has been complied with.
8. In the autumn of 2013 Mr Otuo sent to Mr Brierley a number of different versions of his proposed re-amended particulars of claim. After settling upon a final version, he made an application for permission to amend which, after several adjournments, came on for a substantive hearing before Mr Nicholas Strauss QC, sitting as a deputy judge of the High Court, on 3 December 2013. Some of the proposed amendments were not controversial. Others concerned the claim for breach of the agreement and these were allowed in part. Importantly for present purposes, the proposed amendments also included two allegations that Mr Brierley had defamed Mr Otuo.
9. The first allegation was that Mr Brierley had contacted Mr Wee and "lied to him that [Mr Otuo] was responsible for half of the amount owed by the partnership to Mr Wee". This alleged lie was said to be evident from an email dated 12 December 2011 from Mr Wee's assistant, Mr Davidson, to Mr Otuo. The deputy judge refused to give permission for this amendment for reasons which he gave in a written judgment handed down on 28 February 2014. Specifically he held that there had been a failure to set out the precise words used; that the application was being made far outside the one year limitation period provided by s.4A of the Limitation Act 1980; and there was no basis for contending that Mr Brierley had said anything which might harm Mr Otuo's reputation or damage him in any other way.
10. The second and more material allegation for the purposes of this appeal concerned another conversation which was said to have taken place between Mr Brierley and Mr Wee. Mr Otuo asserted that Mr Wee had told him in the course of a telephone conversation on 28 August 2013 that Mr Brierley had said to him "that the £166,000 that was paid to [Mr Otuo] under the agreement with [Mr Brierley] was meant to be paid to [Mr Wee] and that [Mr Otuo] had kept it for [himself]".
11. Mr Otuo contended that this statement by Mr Brierley to Mr Wee amounted to an accusation that Mr Otuo was guilty of criminal wrongdoing and that it was therefore actionable without proof of special damage.
12. Mr Brierley resisted the application on the following grounds. He contended first, that the alleged statement did not necessarily mean that Mr Otuo's conduct had been dishonest and so it was not defamatory; second, that the allegation had been inadequately particularised and so permission to amend should be refused; and third, that the one year limitation period provided by s.4A of the 1980 Act had long since expired and so the allegation was bound to fail for this reason too.
13. For reasons which are set out in detail in the judgment of 28 February and to which I must return, the deputy judge decided it was appropriate to adjourn this aspect of the application yet again; to order Mr Brierley to provide further information about any conversation or conversations that he had had with Mr Wee between January 2011 and August 2013 in which he had used words to the effect alleged in the proposed re-amended pleading; and to give Mr Otuo permission to have a witness summons issued requiring Mr Wee to attend court to answer questions about the allegation. These directions were eventually embodied in an order dated 11 March 2014.
14. A witness summons was duly issued and Mr Wee attended before the deputy judge on 14 April 2014. Mr Wee was then sworn and examined by Mr Otuo. It became apparent during the course of this examination that the allegation that Mr Brierley had defamed Mr Otuo was not sustainable and so the deputy judge indicated to Mr Otuo that it was obvious that he must refuse Mr Otuo's application for permission to amend his pleading to introduce it. The deputy judge then proceeded to deal with various consequential matters, including the costs of the amendment application and, in doing so, he made the order against which Mr Brierley now appeals.

The judgments

15. I must now explain how the deputy judge came to make the orders that he did and the reasoning that lay behind them. For that purpose, I begin with the judgment of 28 February 2014. As I have mentioned, Mr Brierley resisted the application on three grounds. He contended first, that the alleged statement was not defamatory; second, that the allegation suffered from a fatal lack of particularity; and third, that the limitation period had expired.
16. As for the first issue, namely whether the alleged statement was defamatory, the deputy judge recognised that this could not be wholly separated from the issue as to the exact words spoken, but he considered that, in all the circumstances, it was least strongly arguable that the words would reasonably have been understood to mean that Mr Otuo had stolen money that should have been paid over to Mr Wee. Mr Brierley contended that the words were capable of being interpreted differently. The deputy judge accepted that was so but that was, in his judgment, no reason to refuse the amendment.
17. The next question was whether the pleaded allegation was sufficiently specific. Here the deputy judge recognised the general rule that a claimant must set out the exact words alleged to have been used. However, he continued, this rule, if applied too rigorously, might give rise to an injustice in a case where the claimant knows he has been defamed and has a genuine case but cannot gain access to the exact words used. The deputy judge then proceeded to consider a considerable number of authorities, including the decision of this court in Best v Charter Medical of England Ltd [2001] EWCA Civ 1588 in which it was explained that the exception to the general rule only operates where the claimant can satisfy the court that he has a good cause of action because there is credible evidence that the defendant on a particular occasion and to a particular person made a defamatory statement about him of a specified nature. Unless there is evidence that there is a good cause of action, an order for further information would amount to a fishing expedition. But, if the claimant can meet this test, the precise words used may be ascertained by an order for further information, so that both sides may have the benefit of a properly pleaded claim.
18. The deputy judge then referred to a passage in Gatley on Libel and Slander (at paragraph 26.17 of the 12^th edition) in which it is suggested that, where a defendant does not admit speaking words which constitute an actionable slander, the claimant might consider issuing a witness summons to the person to whom the words were allegedly spoken to attend court to give evidence, if that person is known but will not assist voluntarily.
19. The deputy judge then proceeded to apply these principles to the instant case and concluded, in relation to this second issue, that it was appropriate to follow the course of action suggested in Gatley because, on the assumption that the evidence given by Mr Otuo was true, Mr Otuo had a genuine case that Mr Brierley had made a statement to a specified person, Mr Wee, which, on a reasonable interpretation in the relevant context, meant that he had committed a serious criminal offence. Further, Mr Otuo had pleaded what he knew but the only way of finding out the exact words used was to require Mr Brierley to give further information and to issue a witness summons requiring Mr Wee to attend court to give evidence. Finally, Mr Otuo had shown he had a genuine case and was not embarking on a fishing expedition, and an order would not be in the least oppressive.
20. The last issue the deputy judge had to consider was that of limitation. Here he began by observing that it was unclear whether the statement relied upon had been made over one year earlier, and there was no way in which this could be discovered save by asking Mr Wee or Mr Brierley. Accordingly, he continued, unless it was clear that Mr Otuo was entitled to an extension of the limitation period, if needed, he must either dismiss the application to amend or direct a preliminary issue.
21. The deputy judge then referred to Mr Otuo's submission that Mr Brierley had deliberately concealed what he had said. This, he considered, might prove to be so, but it was not a conclusion he could reach as a matter of certainty on the evidence before him.
22. That brought the deputy judge to a consideration of the application of s.32A of the 1980 Act, and the critical issue on this aspect of the appeal. At the outset the deputy judge made a number of important findings, namely that there was no real prospect of Mr Brierley establishing that Mr Otuo knew of the alleged slander before August 2013; that there was no reason to think that the lapse of time, assuming the conversation with Mr Brierley had taken place more than a year before, would materially affect Mr Wee's recollection or make his evidence less cogent; and that there was no suggestion that Mr Brierley had been in any way prejudiced by the delay (again assuming there had indeed been a delay). In all these circumstances the deputy judge considered that, there being no other factors which might affect the exercise of the discretion under s.32A, and if it was open to him to exercise it, he would have no hesitation in doing so in Mr Otuo's favour if he was outside the one year period at the time of the amendment.
23. There followed a consideration by the deputy judge of Mr Brierley's submission that it was not, however, open for him to do so because this course was precluded by s.35(3) of the 1980 Act. However clear the case, so the argument went, Mr Otuo had to bring a new action and seek his extension in that action.
24. The deputy judge rejected this submission and his reasoning ran as follows. Section 35(3) looked to the time when the court allowed or refused the amendment, not the time of the application for permission. Accordingly, if the court had first considered and allowed an extension by directing that s.4A of the 1980 Act should not apply to the claim, the limitation period would not have expired at the time the amendment was allowed. There was, the deputy judge continued, nothing in s.35 or in the rules to the effect that an application under s.32A could only be made in a new action, and it would make little sense for this to be so. The consequence would be that Mr Otuo would have to start a fresh action and, if he succeeded in his application, apply to consolidate the two sets of proceedings, and this would result in needless cost and delay. Nevertheless, and in the light of the deputy judge's conclusion on the second issue, that is to say the lack of specificity of the pleading, he proceeded to make the directions to which I have referred.
25. As I have said, the application was restored on 14 April 2014 for the examination of Mr Wee. Following that examination and the collapse of Mr Otuo's claim in defamation, Mr Roseman invited the deputy judge to award to which Mr Brierley his costs of the application. The deputy judge clearly considered that these costs should be discounted to reflect the time spent on the limitation issue. His judgment is short and I should set it out in full:

"I am going to make an order that Mr Otuo should pay 80% of the costs of the hearings plus any additional costs, I do not know whether they have been incurred or not but such additional costs, if any, as have been incurred in respect of the applications for summary judgment and the applications for specific disclosure and expert evidence, that is 100% of those costs, 80% of the costs of the hearing.

The reason why, obviously the starting point, as Mr Roseman has correctly submitted, is that costs follow the event but I think that I do need to make some allowance for the relatively minor issues on which Mr Otuo has succeeded and, to my mind, for the quite significant issues about limitation in relation to the claim for slander which complicated matters and I think caused significant additional cost over and above that which would have been incurred anyhow in relation to the application to amend the slander [sic].

That is my decision, 80% of the costs of the hearing and 100% of any additional costs incurred in relation to the other matters that I have identified, summary judgment, specific disclosure and expert evidence."

26. That brought the deputy judge to a consideration of the request by Mr Brierley that he should both order a payment on account of costs and impose a condition that, if Mr Otuo failed to make the payment, he should be barred from pursuing his claim. The deputy judge ordered the payment on account of £20,000 but he declined to impose the condition. Once again, his judgment is short and it reads:

"I am sorry, Mr Roseman, I have never heard of such an order being made before and I do not think it is appropriate, having allowed the amendment on the basis that it is arguable and you are not prejudiced by any delay then I think, to now disallow it on that basis would potentially lead to the court reaching the wrong result because it has not been permitted to consider something that is properly an issue.

Of course, given that the amendments that have been allowed are not all that significant, I do not think it will be a very sensible order to make anyhow."

The appeal

27. Mr Roseman, who has appeared on this appeal on behalf of Mr Brierley, as he did below, submits that the deputy judge fell into error in discounting the costs which he awarded to Mr Brierley and that he did so for two reasons: first, he ought to have found that s.35(3) of the 1980 Act precluded a consideration of the application under s.32A in the context of this case; and second, he fell into error in his approach to the exercise of discretion because it was plainly arguable on all of the materials before the court that the one year time limit imposed by s.4A of the 1980 Act had indeed expired and further, that Mr Otuo knew of the alleged slander a good deal earlier than August 2013. Accordingly, and in accordance with well established principle, Mr Brierley had a reasonably arguable case on limitation which would be prejudiced by amendment. For his part, Mr Otuo, who has appeared upon this application in person, has submitted that the reasoning of the deputy judge is unimpeachable and that he came to the right conclusion.
28. As Mr Roseman has pointed out, the general period of limitation for a cause of action in tort is six years from the date of the accrual of the cause of action. In the case of actions for libel or slander this period was first reduced by the Administration of Justice Act 1985 to three years from the date of the accrual of the cause of action and then, by the Defamation Act 1996, to one year. Section 32A of the 1980 Act now reads in material part:

"32A(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which

(a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

the court may direct that that section shall not apply to the action or shall not apply in any specified cause of action to which the action relates.

(2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A:

(i) the date on which any such facts did become known to him, and

(ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and

(c) the extent to which, having regard to the delay, relevant evidence is likely:

(i) to be unavailable, or

(ii) to be less cogent that if the action had been brought within the period mentioned in section 4A."

29. The discretion conferred by s.32A is plainly a wide one but one of the important considerations to which the court must have regard is the length of, and reasons for, the delay on the part of the claimant and the impact that may have on the ability of the court to deal with the case justly.
30. In this case the claim in defamation was sought to be introduced into the pending action. Accordingly the deputy judge was required to have regard to s.35 of the 1980 Act. This reads, so far as relevant:

"35(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced –

(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and

(b) in the case of any other new claim, on the same date as the original action.

(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either –

(a) the addition or substitution of a new cause of action; or

(b) the addition or substitution of a new party;

…

(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.

…

(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.

(5) The conditions referred to in subsection (4) above are the following –

(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts as are already in issue on any claim previously made in the original action; and

(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action."

31. The rules of court referred to in s.35(4) of the 1980 Act are contained in CPR Rule 17.4. This reads, so far as relevant:

"17.4-(1) This rule applies where –

(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and

(b) a period of limitation has expired under –

(i) the Limitation Act 1980; …

(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."

32. It is now well established that, in a case such as that before us, where a new claim does not arise out of similar facts, if it is arguable that the new claim is statute barred, leave to amend should not be given. The claimant should not gain the benefit of relation back under s.35(1) of the 1980 Act for this would deprive the defendant of his limitation defence. On the other hand, if the claimant can show that the defendant does not have a reasonably arguable limitation defence which would prejudiced by the operation of s.35(1), the court may give leave to amend.
33. Further, and as Jackson LJ explained in Chandra v Brooke North (a firm) [2013] EWCA Civ 559, if a claimant seeks to raise a new claim by amendment and this is met by an objection that the new claim is barred by limitation, the court has two options in deciding how to proceed. It can deal with the matter as a conventional amendment application or, alternatively, it can direct that the question of limitation be determined as a preliminary issue.
34. The court will generally adopt the first option and, if it does so, it will not seek to resolve factual issues which are seriously in dispute. It will simply determine whether the defendant has a reasonably arguable case on limitation which would be prejudiced by the amendment and, if he has, it will refuse the claimant's application and leave him to issue a new claim. As for the second option, this is a course which the court should be wary of following for the reasons explained by Jackson LJ in Chandra:

"70. … In practice, this course will seldom be appropriate. Before ordering any trial of preliminary issues, the court must carefully consider the ramifications of such an order. Will the same witnesses have to give evidence on related topics at two different trials? What will be the consequence if there is an appeal on the preliminary issue? Will the separation out of preliminary issues ultimately lead to a saving or a wastage of time and costs? Particular problems attach to an order for the trial of preliminary issues before the pleadings are complete. Having said that, I must accept that there are some rare cases where the court will order trial of the limitation issue before deciding whether to give permission to amend."

35. It was this second option, or something akin to it, which the deputy judge adopted in the present case. There is nothing in his judgment to indicate that he directed his mind to the various matters to which Jackson LJ referred and its resolution took some time and resulted in the parties incurring considerable costs. But there is no appeal against this aspect of the deputy judge's order and so I shall say no more about it.
36. Turning now to Mr Roseman's first submission, he focuses on s.35(3) of the 1980 Act and contends that it is clear that, except as provided by s.33 or by rules of court, the court cannot allow a new claim within s.35(1)(b), other than an original set-off or counterclaim, to be made after the expiry of a time limit which would affect a new action to enforce that claim. The omission of s.32(A) of the 1980 Act is, he continues, significant. It was therefore not permissible for the deputy judge to consider the application of s.32(A) in the context of this application to amend and the deputy judge should not have concluded as he did that he would have no hesitation in exercising the discretion under s.32(A) in Mr Otuo's favour if he was outside the one year limitation period at the time of the amendment.
37. I accept that it is striking that there is no mention of s.32A in s.35(3) and that is particularly so in light of the inclusion in s.35(3) of s.33, a provision which performs a similar function to that of s.32A in actions in respect of personal injury or death. However, Mr Roseman has not shown us any authority which supports his submission and I entertain considerable doubt as to whether it is well founded, essentially for the reasons given by the deputy judge. In short, it seems to me to be strongly arguable that if, upon an application to amend to introduce a new cause of action in defamation after the expiry of the one year limitation period (but within the normal limitation period), the judge is able to conclude that, having regard to the provisions of s.32(A), it would be equitable to allow the action to proceed and is properly able to make a direction that s.4(A) shall not apply to the claim then, at the time of the amendment, the limitation period would not have expired. Moreover, as the deputy judge indicated, there is nothing in s.32(A) to indicate that its application can only be considered in the context of a new action and, for the reasons he gave, it would make little sense for this to be so. Indeed support for the deputy judge's conclusion can, I think, be derived from the decision of this court in Wood v Chief Constable of the West Midlands Police [2003] EWCA Civ 2971. It is not, however, necessary for me to express a final view on this issue in light of Mr Roseman's second contention, to which I now turn.
38. Mr Roseman argues that the deputy judge fell into error in concluding that he would have no hesitation in exercising his discretion under s.32(A) of the 1980 Act in Mr Otuo's favour. It will be recalled that a critical part of his reasoning was that there was no real prospect of Mr Brierley establishing that Mr Otuo knew of the alleged slander before August 2013. This, continues Mr Roseman, was plainly not the case because, on 1 October 2013, Mr Otuo sent to Mr Brierley a version of his proposed re-amended particulars of claim, signed with a statement of truth, which alleged, inter alia:

"32. He further told Mr Wee and his assistant Mr Andrew Davidson that he had in fact given me £166,000.00 which was intended to be given to Mr Wee to at least pay half of the debt owed to him but it appears I have kept that money for myself.

33. When contacted by Mr Wee on this, the Claimant told him that in fact the money was paid as [sic] result of his severance from the Partnership as demanded by the Defendant in order to pave [sic] way for him to pay the rest of the Partnership Creditors.

…

37. The Defendant continued to maliciously peddle the lie to reinforce to Mr Wee that his version of accounts was the truth.

38. In August 2011 after several failed attempts to get the Defendant to honour the terms of the agreement, I issued court proceedings against the Defendant to enforce the contract.

39. The Defendant on receipt of the service of proceedings, threatened that he will peddle the same malicious falsehood to my Congregation's (Jehovah's Witnesses) Body of Elders presided by one Jonathan Morley …

…

46. It was not known to me that the Defendant had indeed carried out his threat to peddle such falsehood to the Elders until his letter of 16^th November 2012 where these maliciously [sic] falsehoods and sweeping statements about me were brazenly repeated to my solicitors.

47. I became aware the link [sic] the allegation of fraud by Mr Wee and the Church Elders had with the Defendant on receipt of this letter. This so [sic] because these were some of the issues that were raised on the Church's own "judicial hearing" into the matter. The Church Elders will not disclose to me at the time, where all these allegations have emerged from.

48. The Claimant has suffered gross injustice at the hands of the Church Elders as they had put more faith in the Defendant's allegations against me. I was disfellowshipped from the Church on the 19^th July 2012."

39. Mr Roseman submits and I agree that it was clearly arguable in the light of this draft pleading that Mr Otuo knew of the alleged defamatory statement by 16 November 2012 and further, that the statement must therefore have been made some time earlier. We have been told that the draft pleading was drawn to the attention of the deputy judge but he makes no mention of it in his judgment. In light of the contents of this draft pleading and the questions to which it gives rise, I am satisfied that the deputy judge was not entitled to make the finding that he did. He ought rather to have held that it was at least arguable that the statement the subject of the allegation had been made over one year earlier and that Mr Otuo had delayed unduly in making his application to amend, and so it was not possible to reach a final conclusion as to how the discretion under s.32(A) should be exercised on the materials then before the court.
40. In my judgment it also follows that the deputy judge fell into error in approaching costs in the way that he did on 14 April 2014 following the collapse of Mr Otuo's case. It is clear from the deputy judge's judgment that, in exercising his discretion, he attached considerable weight to the conclusion he had reached on the limitation issue. Had the deputy judge approached the matter correctly he would not have found that Mr Otuo had succeeded on the limitation issue. The deputy judge having made this error, it is open to this court to re-exercise the discretion and to consider for itself where the costs burden of the amendment application should fall. I have no hesitation in concluding that, the defamation allegation having collapsed, Mr Brierley was entitled to his costs and there was no proper basis for discounting them at all. I would therefore allow Mr Brierley's appeal against this order.
41. I must now deal with the final aspect of the appeal, that is to say the refusal by the deputy judge to make an order which would have the effect of preventing Mr Otuo from pursuing the other allegations in his re-amended claim unless he complied with the order to pay to Mr Brierley £20,000 on account of costs. The deputy judge refused to make this order because it would defeat the purpose for which the permission to amend had been given and because he had never heard of such an order being made before. But of course it would only defeat the purpose for which permission to amend had been given if Mr Otuo was unable to pay the costs, and there was no satisfactory evidence before the deputy judge that this was so. Further CPR Rule 3.1 plainly conferred upon the deputy judge the power to make his order giving permission to amend subject to the condition that Mr Otuo complied with the order requiring him to pay a sum on account of costs. In the circumstances of this case, including, most importantly, Mr Otuo's failure to comply with earlier orders and the lack of evidence of his inability to pay, the order was, in my view, plainly justified. However, we were told at the hearing that the action has now proceeded to trial before Mr Edward Murray, sitting as a deputy judge of the High Court, and that Mr Otuo's claim has been dismissed by an order dated 6 July 2015. Accordingly the imposition of a conditional order would no longer serve any useful purpose.

Conclusion

42. I would allow the appeal. In my judgment Mr Brierley is entitled to all of his costs of the amendment application.

Lord Justice Christopher Clarke:

43. I agree.

Lord Justice Laws:

44. I agree that this appeal should be allowed. I have some short observations on the issue discussed by my Lord Kitchin LJ at paragraphs 36 - 37 of his judgment.
45. I consider it extremely doubtful whether the court, by force of s.32A of the Limitation Act 1980, would be entitled to permit a new claim which is arguably out of time to be added by amendment. Such a course is on the face of it expressly excluded by the terms of s.35(3). If (as has apparently been suggested) the legislature omitted from s.35(3) an intended reference to s.32A by mistake, I find it very difficult to suppose that this court could properly correct the mistake.
46. However as Kitchin LJ observed at paragraph 37, it is unnecessary to decide the s.32A/s.35 issue: I agree that this appeal falls to be allowed for the reasons given by my Lord at paragraphs 39 - 40. I also agree with his observations at paragraph 41.