England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		33 Bull Street Birmingham B4 6DS
		15th April 2015

HIS HONOUR JUDGE SIMON BARKER QC :

1. This is an application by National Westminster Bank Plc in proceedings begun in March 2013, that is more than two years ago. The application was issued by this court either on the eve of, or effectively shortly after, the Easter weekend this year, so either on 2 April or on 7 April 2015. The action is listed for trial next week, 21 to 24 April 2015. The application is for an order (1) permitting NatWest to amend its defence, which is said to be dated 20 March 2013 (but is in fact dated 20 May 2013) in the form of a draft amended defence attached to the application, and (2) permitting NatWest to serve and rely at trial on a witness statement of a Mr. Jonathan Logan, which statement is dated
   2 April 2015; and (3) if need be, granting for relief from sanctions. The evidence of Mr. Logan is a statement running to 27 pages to which there is an exhibit running to more than 220 pages; the exhibit comprises largely - if not entirely – undisclosed documents (including a 50 page schedule prepared by Mr Logan) which NatWest wishes to add to the trial documents. Mr Logan is not, at present, amongst the witnesses who have made statements for and are to be called by NatWest.
2. In the evidence filed in support of the application there is not even one word to explain why the evidence of Mr. Logan is prepared late, could not have been prepared earlier, and ought now, at this very late stage, to be permitted to be adduced at trial; nor is there even one word to explain why the defence, which has stood for almost two years, and has been the subject of a detailed reply, should be amended only 3 working days before the trial begins.
3. In this context the procedural chronology of this case is also significant. Pleadings had closed in early June 2013. The first case management hearing took place on 1 August 2013, at this hearing Mr Monks' claim was allocated to the multi-track, the court directed a stay for two months for the purpose of negotiations, and gave directions for disclosure by 11 November 2013, inspection by 25 November 2013, witness evidence by 17 January 2014, and a further case management hearing to take place on the first open date after 24 January 2014. On 18 March 2014, there was a further case management hearing at which directions were given for the NatWest's counterclaim, which included further directions for disclosure and witness evidence. On 18 July 2014, there was a yet further case management hearing at which a trial estimate of three days was given. On 28 October 2014, there was a further procedural hearing before Newey J at which the parties must have confirmed that the case was ready for listing for trial because Newey J increased the trial estimate from three days to four days. There was a fifth and final procedural hearing before His Honour Judge Cooke on 5 January this year, at which, and on the basis that no outstanding matters had been raised, Judge Cooke gave directions for the listing of the trial, and reminded the parties of their obligations to comply with the court's directions orders. So from 1 August 2013 through to 5 January 2015 NatWest maintained its case as it had been pleaded in May 2013 without a murmur of suggestion that anything was or might be amiss.
4. The changes that are sought have been helpfully summarised by Miss Nesterchuk, who appears for NatWest, in her skeleton argument and in her oral submissions. In relation to the defence the proposed amendments are as follows :

(1) at paragraph 18 NatWest seeks to raise a new case as to the effect of a 'product switch' between one mortgage and another mortgage taken out by the claimant, Mr. Monks, who appears as a litigant in person;

(2) at paragraph 18(a) there is a new allegation of a second product switch. This is said to arise from the discovery within NatWest - so I am told by Miss Nesterchuk, although this is not explained anywhere in the evidence - of undisclosed documents in the possession of both parties which had come to light and are disclosed by way, as I understand it, of inclusion in Mr. Logan's exhibit;

(3) at paragraph 42.2 there is a new point, which is based on 34 pages of documents included in Mr. Logan's exhibit which have not previously been disclosed by NatWest. They are, so I am told, at pages 283 to 317 of the hearing bundle. On the face of it they are copies of communications between NatWest and Mr Monks. Miss Nesterchuk says from the Bar, and again presumably on instructions because there is no evidence to this effect or to provide any alternative explanation, that these documents were not disclosed earlier because there had been inadequate searches by NatWest;

(4) paragraph 46 and paragraph 54 contain amendments which are entirely consequential on paragraph 18, and therefore stand or fall with the amendment proposed at paragraph 18, which raises, or seeks to raise, a new case as to the effect of the product switch;

(5) paragraph 57 raises a new factual point, which is based on what Miss Nesterchuk describes as documents found recently by NatWest;

(6) paragraph 64.1 and paragraph 64.2 are again, as with paragraphs 46 and 54, entirely consequential on paragraph 18.

5. The core of the submissions by Miss Nesterchuk is that what NatWest is now seeking to do is to correct factual errors and omissions in the pleadings with the consequence that NatWest's case and the prospects of success are not affected. I find it difficult to accept with the latter part of that submission.
6. In relation to the law, Miss Nesterchuk helpfully refers me to the well known and relatively recent Court of Appeal decision in Swain Mason v. Mills & Reeve LLP [2011] EWCA Civ 14, and in particular to the judgment of Lloyd LJ at paragraphs 70, 72 and 104.
7. At paragraph 70, there is the citation by Lloyd LJ of an extract from
   the judgment of Waller LJ in Worldwide Corporation Ltd v. GPT Ltd, a 1998 case, so before the CPR but held by the Court of Appeal to be relevant to the modern procedural era. The passage cited from the judgment of Waller LJ is as follows :

"Where a party has had many months to consider how he wants to put his case and where it is not by virtue of some new factor appearing from some disclosure only recently made, why, one asks rhetorically, should he be entitled to cause the trial to be delayed so far as his opponent is concerned and why should he be entitled to cause inconvenience to other litigants? The only answer which can be given and which, [counsel] for Worldwide has suggested, applies in the instant case is that without the amendment
a serious injustice may be done because the new case is the only way the case can be argued, and it raises the true issue between the parties which justice requires should be decided. 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."

At Paragraph 72, Lloyd LJ observes that :

" … I do accept that the court is and should be less ready to allow a very late amendment than it used to be in former times, and that a heavy onus lies on a party seeking to make a very late amendment to justify it, as regards his own position, that of the other parties to the litigation, and that of other litigants in other cases before the court."

Then at paragraph 104, four considerations are identified by Lloyd LJ :

"The matters which need to be considered for this purpose include the terms of the amendment, the previous history as regards amendment, including the sequence of events [at the time in that case] which led to the first amendments, the absence of any evidence explaining why the re-amendment was sought to be made so very late, and the various factors relevant to prejudice to each side."

8. The submissions made by Miss Nesterchuk are that, first of all, in relation to the terms of the amendment they are clear from the amended defence and are supported by documents exhibited by Mr. Logan. That they are clear is unquestionably so. The original pleading and the amendment by
   Miss Nesterchuk is a concise, well set out and very clear document.
9. As to a previous history of amendments, Miss Nesterchuk submits, correctly, that there is none (Mr Monks takes issue with this point by reference to NatWest's counterclaim made many months after close of pleadings, but the defence itself has not been amended hitherto).
10. As to the third reason, the absence of any evidence explaining why the re-amendment is sought to be made so late, Miss Nesterchuk frankly concedes that that is the position here and no good reason has been put forward.
11. As to prejudice, starting with prejudice to each side, Miss Nesterchuk accepts that Mr Monks is likely to say that he will require time to consider the proposed amendments, but she submits that Mr. Monks has supplied his calculations and so in that sense he will not be doing further work. Miss Nesterchuk initially made but withdrew a submission to the effect that Mr. Monks had in any event undertaken further calculations; Miss Nesterchuk's initial submission was misconceived because it is clear that the document attached to Mr. Monks' skeleton argument is not a further calculation; further, Miss Nesterchuk accepts that Mr. Logan was preparing his evidence, which is extensive, over the course of a period of four to six weeks from, on her instructions, late February or early March 2015 to the point at which it was finalised on 2 April 2015. NatWest has put forward no explanation in evidence as to how the proposed amendment at paragraph 18(a) raising the second product switch was overlooked.
12. Miss Nesterchuk turns to the prejudice to NatWest and submits that the bank should be permitted to present its case on a true and not a fictitious basis, that NatWest wants to prove that there has been no double charging, but it wants to prove this in a way different from the way that it has throughout the case up to Easter 2015 sought to do. She submits that it is more efficient to have the evidence of Mr. Logan before the court, but accepts that in the course of the trial in so far as calculations need to be made, that could be done either in the course of evidence or in the course of submissions.
13. Turning to the administration of justice, other litigants, and the factors relevant to prejudice to both of those broader concerns, Miss Nesterchuk submits that there is no prejudice because no adjournment is necessary.
14. Mr. Monks submits that he would not seek an adjournment because he cannot afford the knock-on effect on himself of delay caused by an adjournment; what that means is that if the further evidence is permitted to go in and if the amendment is also permitted, Mr Monks would have to approach NatWest's new case on the basis that he will not have had time to consider his response to it. On analysis, what he means is that in order to actually address NatWest's case, if the amendment is permitted, and its new evidence, what he would really have to do would be to change his own case - which might lead to further pleadings, further disclosure and possibly further or new evidence on his part, and possibly to a different trial duration, and certainly to the vacation of the trial. That is what Mr Monks says he would be likely to have to do in order to do justice to his case. He also asks the court to bear in mind that he is a litigant in person, and so the speed with which he would be able to do that is likely to be less than that that would be taken by lawyers. Mr Monks also has concerns as to continuation, or revival, of his own practice and professional commitments on which he has not been able to concentrate and would not be able to concentrate in the meantime. Mr Monks' primary submission, though, is that this is a long running matter which has been joined in issue for some two years, in which the parties cases and evidence has been settled for over a year, and which he really does need to have resolved now.
15. Mr. Monks submits that Mr. Logan's statement follows on from the hearing before Newey J on 28^th October last year and a skeleton argument he submitted to the court for that hearing. On instructions Miss Nesterchuk says that that is not the case, but it is common ground that the work of NatWest in relation to its proposed amendment did start at some point after the hearing before Newey J.
16. Mr. Monks submits forcefully that his real complaint is that this is yet another occasion, and I make no observation as to what may have happened before - I just take his submission at face value, on which there has been a late or short notice dumping of a large volume of material by NatWest. As to previous occasions, as I have indicated, I am not in a position to express a view, but certainly this is a large volume of material delivered to Mr. Monks at a very very late stage in the run up to the trial.
17. Other elements of prejudice to Mr. Monks include, in his submission, the effect on him personally. He says that an adjournment will deprive him of the opportunity to try and keep his home because his home is to be sold or arrangements are to be made for sale or raising alternative finance within eleven months (ie before the term of his mortgages with NatWest expire), and what he really needs is a decision on these issues now in order that he may work out what his final position try and raise money in good time.
18. Mr Monks submits that the new case is an ambush which has been worked on for months and he observes that he could have been but was not given any prior warning. He says that he would be disadvantaged if he is not given a reasonable opportunity to respond if NatWest is permitted to run a new or revised case, and he submits NatWest has no one but itself to blame for its failure either to do the work that Mr. Logan has now done at a much earlier stage, or, if it is the case that its disclosure was inadequate, to look through its own documents contemporaneously with the preparation of its original case.
19. Miss Nesterchuk makes the submission that many of the documents ought to be on Mr. Monks' disclosure list as well. That of course turns on the question of whether the documents that are disclosed now were discloseable under standard disclosure in relation to the issues that were joined on the pleaded case as it stood in the middle of 2013. I am simply not in a position to evaluate that one way or the other at this urgently convened pre-trial hearing.
20. That summary of the procedural chronology, the scope of the proposed order, and the submissions that have been made to me lead me unhesitatingly to the conclusion that this very late application simply should not have been made. It is utterly inappropriate to come to a court a matter of days before the trial and seek to adduce substantial further primary evidence-in-chief and to amend a pleaded case without even one word of explanation as to why that amendment and why that further evidence is sought to be introduced at such a late stage and why - if such be the case - it could not have been put before the court much earlier.
21. It is inconceivable that a litigant in person should be expected to deal with a 27 page witness statement, over 220 pages of additional documentation (even if much or even all of it is common to the parties from their historic dealings over the course of years ago), and a revised case without there being an inevitable adjournment in order that there can be a fair response to this material and equality of opportunity to prepare for trial.
22. Further, I do not accept that necessitating an adjournment is the only measure of prejudice to the administration of justice or other litigants.
23. The prejudice to both the opposing party, Mr Monks, and to the administration of justice and litigants generally is so overwhelming that for those reasons alone this application must fail and be dismissed.
24. That is my ruling on this application.