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Cite as: [2001] 1 ILRM 24, [2000] IESC 10

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Wildgust v. Bank of Ireland [2000] IESC 10; [2001] 1 ILRM 24 (13th April, 2000)

THE SUPREME COURT

21/99

Denham, J.

Murphy, J.

McGuinness, J.

BETWEEN

HAROLD WILDGUST AND CARRICKOWEN LIMITED

PLAINTIFFS/APPELLANTS

AND

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND AND NORWICH

UNION LIFE INSURANCE SOCIETY

DEFENDANTS/RESPONDENTS

JUDGMENT of Mrs. Justice Catherine McGuinness delivered the 13th day of April 2000 (nem. diss.)

1. This is an appeal from the orders and judgment of the President of High Court whereby he dismissed the claim of the Plaintiffs/Appellants as set out in their statement of claim, granted liberty to the Plaintiffs/Appellants to amend their statement of claim to include a claim for negligent misstatement or a claim broadly based on the Hedley Byrne v Heller principle, and granted leave to the second named Defendant/Respondent to amend its pleadings accordingly. As a condition of the said amendment the learned President also ordered that the Plaintiffs pay to the second named Defendant their costs of the days on which the case had ready been at hearing.

2. The factual background of the proceedings is helpfully summarised by the learned President in his judgment of the 28th July 1998 as follows: [*2]

"The first named Plaintiff is a businessman and is the principal if not the sole shareholder in the second named plaintiff company. That company, Carrigowen Limited, was incorporated for the purpose of holding two commercial units in industrial estates in Coolock. The first named Plaintiff Mr Wildgust and his late wife wished to create an arrangement whereby they would sublet smaller units within these commercial units at a rent sufficient to pay the mortgage on the property and thereby create a pension fund for themselves. With this intention they applied for and obtained from Hill Samuel Merchants Bankers a loan of £215,000 (which sum was subsequently increased by an additional £50,000). This loan was secured by the primary security of a mortgage over the property in favour of Hill Samuel and was backed by a personal guarantee from Mr Wildgust and the late Mrs Wildgust. As an additional secondary security Mr and Mrs Wildgust were required to obtain and assign to Hill Samuel a policy of insurance on their joint and several lives. All of these transactions were satisfactorily carried through.

Mr Wildgust put in place an arrangement whereby the rents of the tenants occupying the sub-units were paid direct, in the first instance, into a company account with Allied Irish Bank but this arrangement was subsequently changed to one whereby the rents were paid into a company account in the Bank of Ireland at their Ballsbridge branch and arrangements were made with the bank that the premiums on the life policy were to be discharged to Norwich Union by direct debit. The premiums were due monthly on the 23rd of each month.

[*3] A breakdown in the system occurred as a result of which the direct debit payment due on the 23rd March 1992 was not paid. Mr Wildgust held the Bank of Ireland responsible for this fact. They were accordingly joined as Defendants in the present claim. However after the hearing had progressed for some days a settlement was reached between Mr Wildgust and the Bank of Ireland as a result of which they were struck out of the case.

Because of the failure to discharge the premium due on the 23rd March 1992 the life policy lapsed. The late Mrs Wildgust died on the 1st January 1993. The amount payable under the terms of the policy on her death was not paid as the Norwich Union claimed that the policy had lapsed. Mr Wildgust brings this action to enforce payment of that amount and claims that as a result of withholding payment consequential loss has been suffered by him and by his company.”

3. The proceedings were commenced against the first and second named Defendants by plenary summons issued on the 27th July 1993. The statement of claim was delivered on the 25th May 1994. Notices for particulars and replies were duly exchanged. The second named Defendant filed its defence on the 7th November 1994, the first named Defendant on 30th November 1994. There was a further exchange of particulars in regard to special damages in early 1998. The matter came on for trial before the President of the High Court on the 15th July 1998. It was at hearing on the 15th, 16th, 17th, 21st and 22nd July. On the 23rd July 1998 it was announced to the Court that a settlement had been reached between the Plaintiffs and the first named Defendant, the Bank of Ireland; the case was, however, to continue against the second named Defendant, Norwich Union. [*4]

4. At this point the learned President asked Counsel for the Plaintiffs to summarise the way in which the case as it then stood was put against the second named Defendant, saying that he felt that this might clarify the matter. Mr Bradley S.C. then restated the case against the second named Defendant (as set out at pages 4 to 8 of the transcript of the 23rd July) and replied to a number of questions put to him by the trial judge. At this stage stress was laid on the Plaintiffs' claim of negligent misrepresentation, or negligent misstatement, arising under the principles enunciated in the case of Hedley Byrne v Heller [1964] AC 465.

5. A number of further witnesses were then called on behalf of the Plaintiffs. At the close of the Plaintiffs' case Counsel for the remaining Defendant, Mr Sreenan S.C., made an application for a non-suit. Full and comprehensive submissions were made by Counsel on both sides and the learned President reserved his judgment until the 28th July 1998. On that day he gave judgment and made the order to which I have already referred.

6. In this appeal the Plaintiffs/Appellants seek the following orders:

(a) An order setting aside so much of the said judgment as directs the requirement

on the part of the Appellants to amend the pleadings to reflect a claim upon

the broader principles of Hedley Byrne v Heller .

(b) An order setting aside so much of the said order of the High Court wherein the learned High Court Judge determined that the said pleadings did not disclose a claim based upon the negligence of the Respondent in relation to representations and statements made to third parties.

(c) An order setting aside so much of the said judgment as to the grant of the costs of the hearing to date to the Respondent.

(d) An order setting aside so much of the said judgment as refuses to grant a stay pending appeal in relation thereto. [*5]

(e) An order in lieu thereof directing the continuation of the trial herein.”

7. It will be seen from this that the Plaintiffs/Appellants do not seek to overturn the non-suit granted by the learned trial judge in respect of the other claims raised in the statement of claim.

8. The Defendant/Respondent opposes the appeal and seeks to uphold the order of the High Court. No cross-appeal has been brought by the Respondent.

Submissions of Counsel

9. At the outset it was correctly (and not surprisingly) agreed by Counsel that the purpose and function of pleadings was as set out in the following passage from Mahon v Celbridge Spinning Company Limited [1967] IR 1 , which had been cited with approval by Keane J. (as he then was) in McGee v O'Reilly [1996] 2 IR 229:

"The whole purpose of a pleading, be it a statement of claim, a defence or reply, is to define the issues between the parties, to confine the evidence of the trial to the matters relevant to those issues, and to ensure that the trial may proceed to judgment without either party being taken at a disadvantage by the introduction of matters not fairly to be ascertained from the pleadings. In other words a party should know in advance, in broad outline, the case he will have to meet at the trial.”

10. Counsel for the Plaintiffs/Appellants, Mr Bradley, submitted that the facts on which the Plaintiffs' claim of negligent misstatement was based had been fully set out in the statement of claim and in the replies to particulars. He referred in particular to paragraph 13 of the statement of claim, to which the learned President had not referred in his judgment, and also to paragraphs 15 and 18. He submitted that these paragraphs established both the [*6] making of the communication which the Plaintiffs/Appellants allege was a negligent misstatement and the detrimental results to the Plaintiffs/Appellants which followed from that communication. The relevant paragraphs of the statement of claim state as follows:

"13. Upon realisation of the non-payment of the first direct debit a representative of Hill Samuel Bank Limited contacted the second named Defendant, its servants or agents, informing it and confirming with it that in the event of direct debits not being met by the Plaintiffs that the said direct debits would be met by Hill Samuel Bank Limited. At the date of the said Agreement the second named Defendant, its servants or agents confirmed that the earlier direct debit, which had been returned unpaid had subsequently being paid and that the said policy had been reinstated and that accordingly no obligation or necessity to discharge any sums arose. In addition the second named Defendant, its servants or agents did not subsequently despite the terms of the said Agreement contact Hill Samuel Bank Limited or the Plaintiff to inform either or both of them that direct debits had not been met and that the said policy was in jeopardy. This was despite the clear representations and agreement entered into in relation to the discharge of any such sums ......

15. In addition to the foregoing, it is the Plaintiffs' contention that it is the normal

practice and custom of bankers for lending institutions with an interest noted

in relation to policies of insurance, which said policies have been pledged by

way of security for advances, that the said institutes would discharge unpaid

premia which said custom and practice the second named Defendant, its

servants or agents were aware of and participated in save with the exception [*7]

of the instant case herein. Such non-participation was wrongful and in breach of agreement and negligent and in breach of duty including breach of fiduciary duty .....

18. As the result of the matters aforesaid, the first named Plaintiff has been

exposed to a risk of liability, pursuant to his guarantee and furthermore in his

capacity as personal representation (sic) of Margaret Wildgust deceased has not received the benefit of the said policy of insurance and further the Plaintiffs and each of them, have suffered loss, damage and distress by reason of non-payment of the said policy of insurance in relation to the liabilities on foot of the borrowings from Hill Samuel Bank Limited.”

11. Mr Bradley also drew attention to the fact that the second named Defendant/Respondent in its notice for particulars of the 21 ^st June 1994, at paragraph 3, specifically sought particulars of the communication set out in paragraph 13 of the statement of claim, asking for particulars of the identity of the Hill Samuel representative who allegedly contacted the second named Defendant, the date on which the said contact was made, the identity of the person in the second named Defendant company who allegedly confirmed that the earlier direct debit had been paid, and the identity of the person who allegedly confirmed that the policy had been reinstated. In addition the second named Defendant sought copies of any documents if the aforesaid communications had been made or recorded in writing. In their replies to particulars dated the 4th July 1994 the Plaintiffs had stated that the relevant Hill Samuel representative was one Declan O'Hanlon and that the contact had been made in or around the 22nd April 1992. It was stated that the Plaintiffs had no knowledge as to the [*8] identity of the Norwich Union official to whom Mr O'Hanlon had spoken but the Plaintiffs provided a copy of a file note signed by Mr O'Hanlon and dated 22nd April 1992 which was entitled: Carrickowen Limited and read as follows:

With regard to the above account I have been advised by Mr Harry Wildgust that Mrs Margaret Wildgust has been diagnosed with cancer. We hold as security a policy assigned to ourselves with Norwich Union Life Insurance Society.

On the 6th April 1992 we received an advice from Norwich Union Life Insurance Society that the direct debit on the policy had been returned unpaid. I contacted the clients and was informed that they had forwarded a cheque to Norwich Union to keep the policy in order.

I rang Norwich Union today, 22 ^nd April, to confirm that the policy was correct and in order. Norwich Union confirmed that the cheque had been received and everything was correct and in order”.

12. Senior Counsel for the Appellants submitted that, given the matter set out in the statement of claim and in the replies to particulars, the Defendant was well aware of the nature of the case being made against it. In addition he referred to the defence of the second named Defendant at paragraphs 12 to 15 as follows:

"12. It is denied that a representative of Hill Samuel Bank contacted the second named Defendant, its servants or agents as alleged or at all and the particulars of the alleged communication are denied as if same were set out separately and traversed seriatim . [*9]

It is denied that the alleged or any agreement was made between a representative of Hill Samuel Bank and the second named Defendant as alleged or at all.

It is denied that the second named Defendant confirmed to Hill Samuel, its servants or agents, that the earlier direct debit had been paid or that the policy had been reinstated as alleged or at all.

It is denied that the second named Defendant confirmed to Hill Samuel Bank Limited, its servants or agents, that there was no obligation or necessity to discharge any sums under the policy of insurance as alleged or at all.”

13. The nature of this defence, Counsel claimed, made it clear the second named Defendant was aware of the nature of the Plaintiffs' case and was well able to deny the allegations made against it and fully to defend itself. In this context he referred to the judgment of Lord Denning M.R. in the case of Karsales (Harold) Limited v Wallis [1956] 2 All ER 806 at 869 where the learned Judge stated:

"The only difficulty that I have felt in the case is whether this point is put with sufficient clarity in the pleadings. It is not put as clearly as one could wish. Nevertheless I have always understood in modern times that it is sufficient for a pleader to plead the material facts. He need not plead the legal consequences which flow from them. Even although he has stated the legal consequences [*10] inaccurately or incompletely that does not shut him out from arguing the points of law which arise on the facts pleaded.”

14. Going beyond the matters set out in the pleadings, Mr Bradley went on to refer to his original opening of the case on 15th July 1998. During the course of that opening he had referred in some detail to the telephone call made by Mr O'Hanlon to the Norwich Union on the 22nd April 1992 and had opened the file note of 22nd April 1992 to the Court (see page 20 of the transcript). Later in his opening, in reply to a question from the Trial Judge, Counsel stated that the Norwich Union had represented that the policy was in order as of the 22nd April 1992 and that had either Hill Samuel Bank, through Mr O'Hanlon, or Mr Wildgust being informed at that stage that there was a problem the policy could have been kept in being by a payment before the thirty days of grace had lapsed. Again (at page 26 of the transcript) Mr Bradley stated:

"And also of course, My Lord, we would be saying that if Your Lordship accepts the evidence of Mr O'Hanlon that there will be negligence in the misstatement on the part of the Norwich Defendants in relation to what occurred on the 22nd April 1992. "

15. Following Mr Bradley's opening of the case Mr Sreenan, Senior Counsel, for the second named Defendant, had protested vigorously in regard to an allegation of mala fides which was apparently being made against the second named Defendant, but had raised no objection to the allegation of negligent misstatement.

16. During the course of the hearing Mr O'Hanlon was a witness for the Plaintiffs and gave evidence concerning the alleged telephone conversation and the file note of April 22 ^nd [*11] 1992. He was cross-examined by Mr Sreenan in considerable detail. Mr Bradley pointed out that Mr Sreenan put a large number of factual matters concerning the records and procedures of the Norwich Union to Mr O'Hanlon. These matters, he said, could only have stemmed from full instructions to Counsel and from research carried out by Norwich Union to meet this aspect of the case. Both in Mr Sreenan's cross-examination and in the later submissions which he made to the Court it was clear that the second named Defendant well understood the case that was being made against it and was fully prepared to meet it.

17. Counsel for the Plaintiffs also drew attention to the fact that the whole matter of the telephone call and the file note was well known to the second named Defendant from at least December 1992 onwards, and had been the subject matter of correspondence between Hill Samuel Bank Limited and the second named Defendant in December 1992, well before the issue of the proceedings in July 1993 and the delivery of the statement of claim on the 25th May 1994.

18. Mr Bradley drew attention to his "second opening" of the Plaintiffs case at the request of the learned President on 23rd July 1998, where he set out even more clearly the claim of negligent misstatement and signalled his reliance on Hedley Byrne v Heller and on the decision of the late Shanley J. in Amanda Forshall v Walsh and Others delivered on the 18th June 1997.

19. Arising out of these considerations Mr Bradley submitted that the claim of negligent misstatement had been quite sufficiently pleaded, that it had at all relevant times been well understood by the second named Defendant and that the second named Defendant had come to Court well prepared to defend it. There was therefore no requirement to amend the pleadings as directed by the learned President of the High Court. In addition it was an [*12] injustice to the Plaintiffs to require them, after five days of hearing, to recommence their case before a new Judge and to meet the costs of the hearing to date.

20. Senior Counsel for the second named Defendant/Respondent, Mr Sreenan, submitted that nowhere in the statement of claim was a claim in negligent misstatement pleaded or made out. He argued that in order to make a case in negligent misstatement, the Plaintiffs/Appellants would have to plead:

that a statement was made by the second named Defendant to the Plaintiffs;
that the second named Defendant intended that the Plaintiffs would rely and act upon this statement; and
that the Plaintiffs did so rely and acted upon the statement to their detriment.

21. He referred to the amended statement of claim which had been served by the Plaintiffs and submitted that paragraph 13(a) had had to be added to the statement of claim in order to make the case in negligent misstatement. Paragraph 13 (a) amended paragraph 13 of the original statement of claim by adding the following:

"13(a) A representative of Hill Samuel Bank Limited made enquiry of the second named Defendant, its servants or agents, relating to the returned unpaid debit on or about the 22nd day of April 1992 and it was represented to him on that date that everything was in order. At the time of furnishing the said information the second named Defendant, its servants or agents, well knew or ought to have known that Hill Samuel Bank Limited would rely on the said information and but for the said information would have made whatever payments were necessary in maintenance of the said policy and knew that it would have done so in the interests of the Plaintiffs and itself [*13] as holder of the said policy as security for the liabilities of the Plaintiffs and each of them. In the premises the second named Defendant was under a duty of care in furnishing the said information and was in breach of the said duty and guilty of negligence in that the information in truth and in fact was false, untrue, inaccurate and misleading. Furthermore the second named Defendant its servants or agents knew or ought to have known that in the furnishing of the incorrect information to Hill Samuel Bank Limited it would and did cause the Plaintiffs loss and damage.”

22. Mr Sreenan submitted that if a claim had been properly pleaded in negligent misstatement the second named Defendant would have approached the case differently because it would have known what case was being made before the trial began and could have met it accordingly. The claim of negligent misstatement could have been evaluated by the second named Defendant who could have obtained Counsel's advice as to whether it was a claim which was capable of being sustained or not. The second named Defendant could also have obtained Counsel's advice on what proofs were required to meet the claim and would have been in a position to consider the possibility of making a lodgment in respect of the claim. Further discovery might have been required in regard to the relationship between the Plaintiffs and Hill Samuel. Telephone records and other documents from Hill Samuel might have been critically relevant to the issue of the alleged telephone conversation by Mr O'Hanlon.

23. Counsel for the Defendant/Respondent also submitted that, had the case being correctly pleaded, there would have been a proper opportunity to consider the legal [*14] implications of basing the Plaintiffs' claim on the judgment of the learned Shanley J. in the Amanda Forshall case.

24. Mr Sreenan went on to make a number of submissions both in regard to the import of the Amanda Forshall case and in regard to the discussion of the law on negligent misstatement as set out at pages 7 to 10 of the judgment of the learned President of the High Court and to the conclusion reached by him at page 10 where he stated:

"Accordingly in approaching this matter on the basis of an application for a non-suit I am satisfied that the Plaintiffs have presented the Court with evidence which, if accepted, would establish that there was a negligent misstatement of fact by the servant or agent of the Norwich Union, that this statement was communicated to Hill Samuel and by reason of the relationship between Hill Samuel and the Plaintiff (i.e. that of mortgagor and mortgagee) there was a proximity between the Norwich Union and the Plaintiffs. I am also satisfied that evidence has been tendered which shows that damage as a result of misstatement was foreseeable.”

25. Had Counsel been initially aware of the nature of the Plaintiffs' claim, Mr Sreenan submitted, he would have been prepared to deal with what he described as the considerable widening of the tort of negligent misstatement contained in the Plaintiffs' claim which in the event was accepted by the learned President.

26. In regard to paragraph 13 of the statement of claim, Mr Sreenan said that the Defendant/Respondent was of course aware of the allegations made by Mr O'Hanlon, and denied them in its defence, but had at all times believed that these allegations formed part of the Plaintiffs claim that the Defendant/Respondent had acted in bad faith.[*15]

27. In reply Counsel for the Plaintiffs/Appellants pointed out that the Defendant/Respondent had brought no appeal against the conclusions reached by the learned President in his judgment but had confined themselves to seeking to uphold the order made by the High Court.

The Issues

28. A number of issues arise on this appeal as follows:

1. Was the Plaintiffs claim in negligent misstatement pleaded with sufficient clarity and particularity in the statement of claim?

2. If not, were the Defendants, and in particular the second named Defendant, made sufficiently aware of the nature of this claim and of its factual background during the course of correspondence, by the pleadings generally, by Counsel's opening of the Plaintiffs case, and by the course of the proceedings viewed as a whole?

3. If the Plaintiffs claim was not in fact correctly pleaded, were the Defendants materially prejudiced in their defence and would they have continued to be materially prejudiced had the trial continued in the High Court before the learned President.

4. Should the trial in the High Court have continued, with or without amendment of pleadings?

5. The issue of costs.

Conclusions

29. As was accepted by both parties the purpose of pleadings is to define the issues between the parties, to confine the evidence of the trial to the matters relevant to those issues, [*16] and to ensure that neither party will be taken at a disadvantage by the introduction of matters not fairly set out in the pleadings.

30. Order 19 of the Rules of the Superior Courts deals with pleadings generally. Rule 5(1) of that order provides:

"In all cases alleging a wrong within the meaning of the Civil Liability Acts 1961 and 1964, particulars of such wrong, any personal injury suffered and any items of special damage shall be set out in the Statement of Claim or counterclaim and particulars of any contributory negligence shall be set out in the defence.”

31. Order 20 deals with the Statement of Claim. At Rules 7 and 8 the order provides:

“7. Every Statement of Claim shall state specifically the relief which the Plaintiff claims, either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given, as the Court may think just, to the same extent as if it had been asked for. The same rules shall apply to any counterclaim made or relief claimed by the Defendant in his defence.

8. Where the Plaintiff seeks relief in respect of several distinct claims or causes of

complaint founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly. The same rules shall apply where the Defendant relies upon several distinct grounds of defence, set off , or counterclaim, founded upon separate and distinct facts .” [*17]

32. Mr Bradley submits that paragraph 13 of the Statement of Claim and the following paragraphs meet these criteria. I would accept that paragraph 13 of the Plaintiffs' Statement of Claim refers to the confirmation by the second named Defendant that:

"The earlier direct debit which had been returned unpaid had subsequently been paid and that the said policy had been reinstated and that accordingly no obligation or necessity to discharge any sums arose.”

33. However, the reference to this communication is in the context of what is described as an "agreement". This "agreement" is somewhat ill-defined, but it appears to refer to the fact that Hill Samuel Bank informed the Norwich Union that in the event of the direct debits not being met by the Plaintiffs that the said direct debits would be met by Hill Samuel Bank Limited. The paragraph concludes by stating that the second named Defendant:

"did not subsequently despite the terms of the said agreement contact Hill Samuel Bank Limited or the Plaintiff to inform either or both of them that direct debits had not been met and that the said policy was in jeopardy. "

34. I cannot accept that this in any way sets out a claim of negligent misstatement under Hedley Byrne principles. It does not state the duty of care owed by the second named Defendant to the Plaintiffs. It does not state that the communication in question was made to the Plaintiffs, or at least to agents of the Plaintiffs. It does not state that the Plaintiffs, or indeed Hill Samuel Bank Limited, relied on the communication or that Norwich Union knew that they would rely on it; nor does it clearly set out that the Plaintiffs acted to their detriment in reliance on the communication. It does not even set out that the communication was untrue. All of these things would be normal elements in the pleading of a claim [*18] negligent misstatement and are material facts rather than matters of law. Even given the subsequent details provided in the replies to particulars it could not be clear to the Defendant on the basis of the pleadings that they had to meet a claim of negligent misstatement. Mr Sreenan is, I consider, justified in arguing that paragraph 13 and the following paragraphs appeared to him to be part of the Plaintiffs' allegation of mala fides on the part of the second named Defendant.

35. Accordingly in my view the learned President of the High Court was correct in holding that on the pleadings he was "unable to find any case based upon negligent misstatement or broadly based on the Hedley Byrne v Heller principle”.

36. The learned President was, therefore, also correct in holding that it would be necessary for the Plaintiffs' to amend the pleadings if they were to pursue their claim under Hedley Byrne v Heller.

37. When one considers the course of the proceedings as a whole, however, it is more difficult to accept that the Defendant/Respondent was not, at least in a general way, aware of the nature of the Plaintiffs' claim. On 18th December 1992 Messrs Giles J. Kennedy & Company, Solicitors for the Plaintiffs, wrote to the Norwich Union setting out in broad outline the claims being made by the Plaintiffs. This letter stated, inter alia,:

“We also understand that a representative of Hill Samuel contacted the Norwich Union Life as an interested party on the policy, inquiring about the premium and this representative was assured by the Norwich Union Life that the premium have (sic) not initially been paid, but had subsequently been paid and that accordingly, matters were in order." [*19]

38. The letter went on to set out the options open to the Plaintiffs. These included:

"Option 2. Commence proceedings against the Norwich Union and is (sic) against

the Bank of Ireland for breach of contract and negligence on the date

of death of Margaret Wildgust for the loss and damage sustained,

namely the sum insured on the policy and interest accruing thereafter

after death. Our clients will be relying on the negligence and breach

of contract of the Bank of Ireland, Ballsbridge, and the negligence and

breach of contract to include breach of duty of your company in

respect of the cancellation of the policy herein and in particular the

negligent misrepresentations made to the Hill Samuel Bank and

your failure to notify our client of cancellation of the policy within a

reasonable time and that the debit remained unpaid. " ( my emphasis).

39. The second named Defendant received this letter well before the issue of the proceedings or the delivery of the Statement of Claim, and even before the unfortunate death of Mrs Wildgust in January 1993.

40. In addition, while Mr Bradley's references to negligent misrepresentation in his original opening of the case are somewhat vague, he is, it seems to me, correct in his contention that the run of the evidence and in particular Mr Sreenan's cross-examination of Mr O'Hanlon demonstrate a knowledge on the part of the Defendant/Respondent of the full significance of the alleged telephone conversation and the file note of 22nd April 1992. It is clear from that cross-examination that the Respondent had carried out considerable research into its own records and business practices in order to be able to meet and deny the Plaintiffs' [*20] claim. Certainly the Plaintiffs' claim in negligent misstatement was made fully clear in Mr Bradley's clarification of the case on the 23rd July 1998.

41. As far as the second issue is concerned, therefore, I consider that during the course of the proceedings viewed as a whole the Respondent was made aware in general terms of the nature of the Plaintiffs' claim.

42. Was, then, the Respondent materially prejudiced in its defence? In its pleadings the Respondent clearly denied the allegations of fact made by the Plaintiffs (paragraphs 12 to 15 of the defence). As already set out above, the Respondent had carried out researches and given full instructions to Counsel to enable Counsel to cross-examine witnesses and to make cogent and comprehensive submissions, which he did. I accept that the lack of clarity and particularity in the pleadings was to an extent prejudicial to the Respondent, but the effect of this prejudice would not, it seems to me, have persisted had the trial been continued after a relatively brief adjournment to permit the amendment of pleadings. In his submissions to this Court Mr Sreenan on behalf of the Respondent was somewhat critical of what he felt was the undue broadening by the learned President of the tort of negligent misstatement in the light of the Amanda Forshall case. Perhaps the President inclined to a generous interpretation of the tort but that is not an issue for this Court. It is an issue of law which will arise, will be argued and will be decided in the trial of the Plaintiffs' reconstituted claim in the High Court, just as the relevant issues of fact will fall to be decided in the High Court.

43. Should therefore, the Plaintiffs' claim of negligent misstatement be put back for a new trial or should there be a continuation of the trial before the President of the High Court?

44. It is not impermissible for pleadings to be amended during the course of a trial. Order 28 Rule 1 of the Rules of the Superior Courts provides as follows: [*21]

"The Court may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just, and also such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”

45. While no one would suggest that amendment of pleadings in mid-trial is normally a desirable practice or should frequently be permitted, it was open to the trial judge in the instant case to take that course. In my view to put back the whole matter for a new trial, presumably before another judge, would be to place an undue burden on the Plaintiffs/Appellants which is not necessitated by the level of possible prejudice against the Defendant/Respondent arising out of the continuation of the current trial.

46. I would therefore direct that an amended Statement of Claim as directed by the President of the High Court in his order of 28th July 1998 be served on the Defendant/Respondent within 21 days. The Respondent may file an amended defence to that claim within 28 days from the date of delivery of the amended Statement of Claim. The matter should then with the least possible delay be listed before the learned President of the High Court with a view to continuing and concluding the current trial.

47. Given the conclusions which I have reached, it would seem the better course that the costs of the trial to date be treated as part of the costs of the proceedings as a whole, to be dealt with in his discretion by the learned trial judge at the conclusion of the trial. I would therefore allow the appeal in regard to costs.