Michaelmas Term
[2017] UKPC 41
Privy Council Appeal
No 0082 of 2012
JUDGMENT
Hemery (Appellant) v Ramlogan (Respondent)
(Mauritius)
From the Supreme Court of
Mauritius
before
Lord Kerr
Lord Carnwath
Lady Black
JUDGMENT GIVEN ON
11 December 2017
Heard on 14 November 2017
|
Appellant
Satyawan K
Trilochun
Julia Lowis
(Legal Aid)
|
|
Respondent
Rowan
Pennington-Benton
(Instructed by
Harcus Sinclair LLP)
|
LADY BLACK:
1.
In February 1998, the appellant, Mr Hemery, and his then wife, Ms
Coralie, agreed to pay the respondent, Mr Ramlogan, to construct two apartments
for them on a plot of land belonging to the three of them. The present
litigation results from a dispute over the payment of the price.
2.
The proceedings began on 26 April 2005 when the respondent filed a claim
in the Supreme Court of Mauritius, against the appellant and Ms Coralie, for
the balance of the monies due under the agreement, together with interest
thereon, and further sums by way of damages and costs. On the respondent’s
case, the total price of the transaction was 3,877,000 rupees, made up of
3,500,000 rupees for the construction of the apartments and 377,000 rupees for
additional works requested by the appellant and Ms Coralie. The respondent
averred that only part of the price had been paid, and claimed the outstanding
balance of 1,324,050 rupees, plus interest thereon and an additional sum by way
of damages. The respondent asserted that the appellant and Ms Coralie owed the
money “jointly and in solido”. A copy of the agreement was included with the
plaint with summons.
3.
The appellant put in a plea dated 8 March 2007. He admitted the
existence of the agreement and admitted that the total price was as pleaded by
the respondent. His case was that he had paid more than the respondent said,
and the outstanding sum was 1,028,050 rupees. It was pleaded that this was due
from Ms Coralie, not from him, because he and Ms Coralie had agreed to pay for
their apartments separately and he had paid his dues. Ms Coralie thereafter put
in her own plea, but it is unnecessary to go into the detail of it. In short,
she said that if anything was due to the respondent, it was the appellant who
was liable, not her.
4.
In October 2007, the appellant was given permission to amend his plea.
The amended plea is dated 11 March 2008. In it, it was still admitted that the
basic price for the two apartments was 3,500,000 rupees. The sum remaining due
to the respondent was revised to 1,075,000 rupees, together with interest, and,
as before, it was pleaded that this was owed by Ms Coralie and not by the
appellant, because he had paid his dues.
5.
The case was before the court a number of times during its preparation
and eventually, on 18 February 2009, it was fixed for a hearing on the merits
on 13 July 2009.
6.
With the trial approaching, the appellant wished to amend his plea
again. The proposed amendments were set out in a lengthy document dated 9 July
2009. In this, many of the admissions in the earlier plea were withdrawn and a
new defence to the claim was set out. Gone was the admission that the price for
the two apartments was 3,500,000 rupees. The defendant now wished to assert
that the agreed price was 2,700,000 rupees. He agreed (as he had before) that
payment for two lots of extra work (377,000 rupees and 46,950 rupees
respectively) must be added to this. Accordingly, on his amended case, the
total figure payable under the agreement with the respondent was 3,123,950
rupees. For the first time, a counter-claim was advanced. This proceeded upon
the basis that the appellant and Ms Coralie had in fact paid 3,196,300 rupees
and had therefore overpaid the respondent by 72,350 rupees. The counter-claim
was for repayment of this sum, together with damages of 10,000,000 rupees plus
interest, on the basis that the respondent’s “wrongful acts and doings” (which
were described in the amended pleading) constituted “a faute”. The only
explanation for seeking to amend at such a late stage was to be found at para
4(xxxiii) of the proposed amended pleading. There it was said that, in June
2009, the appellant had “found all the documents which he thought were lost in
support of his averments”. The proposed amended pleading was accompanied by a
notice, dated 8 July 2009, of the appellant’s intention to tender in evidence
30 listed documents.
7.
The appellant says that the amended pleading was sent to the respondent
on 9 July 2009 but there seems to be some dispute about that. What is clear,
however, is that the amended pleading will have reached the respondent very
close to the hearing date.
8.
When the parties appeared for trial on 13 July 2009, the appellant’s
counsel moved to amend his plea. The respondent’s counsel opposed this and the
judge (P Lam Shang Leen J) refused to allow it; it will be necessary to return
to this in due course. The matter was maintained at the request of counsel for
the appellant and, when it was called again later in the day, the respondent’s
counsel told the learned judge that it had been settled, with the appellant
undertaking to pay the respondent 3,600,000 rupees with costs in full and final
satisfaction. Judgment was entered accordingly and the claim against Ms Coralie
was struck out.
9.
The next day, an appeal was lodged on the appellant’s behalf with the
Supreme Court of Mauritius, Court of Civil Appeal. There were 17 grounds of
appeal in total, directed to the alleged errors of the judge in failing to hear
argument in support of the amended plea, refusing to permit the amendment,
giving judgment on the basis of the agreed terms, and putting Ms Coralie out of
cause.
10.
By a judgment dated 13 May 2011, the Court of Civil Appeal dismissed the
appeal with costs against the appellant. The court in Mauritius subsequently
granted the appellant leave to appeal to the Judicial Committee of the Privy
Council.
The issues for determination by the Board
11.
The central issue for determination is whether the judge erred in his
treatment of the appellant’s motion to amend his plea on 13 July 2009. The
appellant complains, as he did in the Court of Civil Appeal, that the judge
wrongly failed to provide him with an opportunity to advance his submissions in
support of the amendment, failed to have regard to the relevant law on the
subject, and failed to consider the proposed pleading and supporting
documentation so as to enable himself to reach a proper conclusion on whether
the amendment should be permitted.
12.
It is convenient to start with rule 17(1) of the Supreme Court
Rules 2000. This provides:
“(1) The Master may grant the
amendment of any pleading and the Court may at the hearing of a case grant an
amendment of any pleadings, in such manner and on such terms as may be just and
reasonable, for the purpose of determining the real question in controversy
between the parties.”
13.
The appellant argues that the amendment was necessary in order to enable
the court to determine the real question in controversy between the parties
here, and that no prejudice would have been caused to the respondent that could
not have been dealt with by a payment in respect of costs. He submits, relying
on English authorities as well as decisions of the Supreme Court of Mauritius,
that the cases show that, where no prejudice is caused to the other party,
amendments ought in general to be allowed so that the court can deal with cases
justly, adjudicating on the real issue in dispute, and that it can be
appropriate to allow even late amendments.
14.
Complaint is made that neither the judge at first instance nor the Court
of Civil Appeal cited rule 17(1) or any authority on the amendment of
pleadings. Amendment of pleadings is, however, a standard feature of civil
practice and P Lam Shang Leen J would have been very familiar with the
principles governing it which, as counsel for the appellant says in his written
case for the Board, “have been the subject of numerous judicial pronouncements
and are now quite well settled”. It is by no means always necessary for a judge
to cite chapter and verse when determining a case management issue such as
this, and there is nothing here to suggest that P Lam Shang Leen J failed to
keep the provisions of rule 17(1) in mind when approaching the motion for
amendment. As for the Court of Appeal, they had the benefit of a skeleton
argument from the appellant, in which the principles upon which he wished to
rely were very fully set out, so there can be no doubt that the court would
have been mindful of them and that is reflected in the way in which they
approached the appeal.
15.
Turning to the submission that the judge erred in failing to hear from
the appellant’s counsel in support of the amendment, it is necessary first to
set out the minute of what occurred in court on 13 July 2009. There is no
transcript of the hearing so the minute is the best record available. The relevant
part of it reads as follows:
“At this stage, Mr Trilochun moves
to amend the plea and files a proposed amendment plea.
Court observes that there was an
amendment in 2007.
Mr Domingue objects and states
that the proposed amended plea is signed by two Attorneys and there is
counterclaim incorporated. Further the proposed amended plea is completely
different from the original one.
At this stage, Mr Glover states
that he has been communicated a notice of substitution.
Mr Trilochun files the notice of
substitution and states that he insists on the amendment.
Upon a remark from Court, Mr
Glover states that he will not take any stand as far as Defendant No 2 is
concerned.
Court observes that it is a 2005
case and there is objection from the plaintiff. Further, there is a
counterclaim and amendment should have been done before the date of hearing.
Court does not grant the motion to amend the plea.
Mr Trilochun moves to maintain the
matter.
Case is maintained.
Later, case is called anew.
Appearances as before.
Mr Domingue states that the matter
has been settled. He moves to put Defendant No 2 out of cause.
Mr G Glover does not insist on
costs.
Mr Domingue states that the
Defendant No 1 undertakes to pay to the plaintiff the sum of 3.6m rupees with
costs within a delay of three months as from today in full and final
satisfaction of the claim.
Mr Domingue moves for judgment
accordingly.
Motion is granted.
Court orders Defendant No 1 to pay
to plaintiff the sum of 3.6m rupees with costs as per agreement and the matter
be struck out against Defendant No 2 no order as to costs.”
16.
Mr Trilochun, who appeared as counsel for the appellant before the Board
(with Ms Lowis), also represented him before P Lam Shang Leen J and before the
Court of Civil Appeal. He submits that the record in the minute that he
“insisted on his motion for amendment” means that he indicated to the judge
that the matter had to be heard by way of presentation of arguments on both
sides, but instead, he says, the judge proceeded to give his ruling without giving
him the opportunity that he should have had to make submissions. He submits
that this was unfair to the appellant and in breach of natural justice.
17.
The Court of Civil Appeal had this to say about this aspect of the
appellant’s argument (p 109):
“… we consider … that the
appellant cannot be heard to say that he was not heard on his motion for
amendment. We agree with learned counsel for the respondent that there is
nothing on record to suggest that appellant’s counsel intended to offer
submissions in law in support of the appellant’s belated motion for a further
amendment of the plea. Nor is there anything on record, we may add, to suggest
that appellant’s counsel was prevented from doing so, had he been minded to
offer such submissions. In fact all counsel were heard, with learned counsel
for the appellant merely insisting upon his motion for amendment.”
18.
The appellant faces a difficult task in attempting to persuade the Board
to go behind this factual appraisal of the Court of Appeal, and it is not made
any easier by the fact that, as he concedes, he did not attempt, once the judge
announced his decision, to press him to hear argument on the proposed amendment
before confirming his ruling. However, he submits, relying on a passage from Spackman
v Plumstead District Board of Works (1885) 10 AC 229 (at p 240), that it
was the duty of the court to give the appellant an opportunity to be heard in
support of his application and that this was not dependent on any request being
made to the judge by counsel.
19.
Counsel for the respondent responds by relying upon Labrouche
v Frey [2012] EWCA Civ 881; [2012] 1 WLR 3160 where Lord Neuberger of
Abbotsbury MR said:
“29. [Counsel] quite rightly
said that it is the duty of an advocate to stand up to a judge who is proposing
to take an inappropriate course, such as refusing to hear argument. He was also
right to suggest that, if a judge states that he is proposing to take a certain
course and a party’s advocate does not object to that course, an appeal by that
party based on the proposition that the judge ought not to have taken that
course would, in the absence of special factors, be doomed to failure.”
20.
Lord Neuberger went on to say (in para 30) that where a judge makes
clear that he is resolved on taking a certain course and there is no prospect
of a party’s advocate being able to dissuade him from it, it is hard to see
what the party or his advocate can do other than appeal against the judge’s
decision. However, counsel for the respondent submits that this was not such a
case and that, whilst ideally the judge should perhaps have invited submissions
himself, given the nature of the application here and the late stage at which
it was made, it was not surprising that he did not and it was incumbent on the
appellant to pursue the matter with the judge rather than proceeding to an
appeal.
21.
Taking all matters into account, including in particular the factual
appraisal of the Court of Civil Appeal, the Board considers that there is no
basis for interfering with the Court of Civil Appeal’s rejection of the
appellant’s argument that he was not provided with a proper opportunity to put
his case. That court made an unequivocal finding that the appellant did have an
opportunity to make submissions on the amendment but did not take it. It would
be entirely inappropriate for the Board to go behind that finding.
22.
A court invited to give leave to make an amendment to pleadings must not
refuse to hear the party who seeks such leave but it is no part of its duty to
insist that submissions must be made. In effect this is what the appellant’s
case resolves to: that the court was obliged to receive submissions, and that,
in their absence, it was incompetent to make the order which it made. The Board
does not accept that proposition.
23.
The same position obtains in relation to the appellant’s complaint that
the judge failed to hear him before determining that Ms Coralie should be put out
of cause. On this argument the Court of Civil Appeal said (p 110):
“… we note from the record that no
objection was voiced on the appellant’s behalf. The appellant was legally
represented at the trial and his counsel could have taken an objection if he
felt that the motion was objectionable. The fact that he did not demur to the
motion can only mean that he agreed thereto.”
24.
That leaves for consideration the appellant’s submissions (1) that the
judge’s decision was vitiated by a failure to consider the proposed amended
pleading and supporting documents so as to be able to understand the reason for
the late change to the appellant’s case and to be able to decide whether
amendment was necessary for the purpose of determining the real controversy
between the parties, and (2) that he erred in refusing the amendment.
25.
The Court of Civil Appeal’s view on the submission that the judge had
ignored the contents of the proposed amendments was as follows (p 110):
“There is nothing on record to
suggest that the learned Judge has ignored the contents of the proposed
amendments and that the appellant had a good defence and a valid counterclaim.”
26.
The Court of Civil Appeal also concluded, having had written and oral
argument from the appellant as to why the amendment should have been allowed,
that the judge properly refused to permit it. On this, they said:
“…we agree with learned counsel
for the respondent that in fact the learned Judge made a judicious exercise of
his discretion and rightly refused the belated motion for amendment made on the
day of the trial. The trial court rightly observed that an amendment had been
made two years earlier, that the claim, which was in relation to a debt which
had arisen in 1998, dated back to 2005 and that there was an objection from the
respondent especially as the appellant was seeking not only to raise a defence
which was totally different from the original one but also to include a
counterclaim. There is nothing on record to suggest that the learned judge has
ignored the contents of the proposed amendments and that the appellant had a
good defence and a valid counterclaim. In any event, once the amendment was
refused the appellant’s counsel moved for the case to be maintained and a
settlement was reached subsequently.”
27.
They further described the judge’s decision as “a discretion exercised …
in accordance with his assessment of the requirements of justice so as to
ensure a fair trial within a reasonable time”.
28.
An examination of the history of the litigation confirms that the Court
of Civil Appeal were entitled to take this view of matters. It is not easy to
divine from the amended pleading what the precise nature of the appellant’s
proposed defence to the respondent’s claim now is. The amended pleading is
therefore of very questionable value as a tool to assist the trial judge to
identify the real question in controversy between the parties and determine it.
29.
Furthermore, it is clear that there were substantial difficulties
attending the proposed revised defence and the counterclaim that flowed from
it. The proceedings had been going on for over four years by the time the
appellant sought to amend, and during the whole of that period he had admitted
that the basic price agreed with the respondent for the transaction was
3,500,000 rupees. There was support for that in the form of a written
agreement. It seems that the written agreement originally specified a price of
1,750,000 rupees, but the appellant subsequently initialled a handwritten
addition to it to the effect that the price was per apartment, making the total
price therefore 3,500,000 rupees, albeit that he seems now to be suggesting
that this process was not explained to him. In the circumstances, considerable
scepticism was inevitably going to be provoked by the appellant’s new case that
the price for the transaction was the significantly lower one of 2,700,000
rupees. It can be anticipated that that scepticism would not readily have been
dispelled by the appellant’s explanation that he had erroneously admitted to
“the wrongful and dishonest claim” of the respondent because he was extremely
depressed following the hostile breakdown of his marriage (para 4(xxv) of his
amended pleading) or that he had only recently found the documents which
supported his averments (para 4(xxxiii) of his amended pleading), even
amplified by the further detail contained in para 4(iii) of his affidavit in
support of his application for leave to appeal to the Privy Council that with
old age and poor health he could not remember everything clearly.
30.
Considering these difficulties alongside the matters identified by the
trial judge and the Court of Civil Appeal - the age of the debt, the length of
time that the claim had been pending, the extreme lateness of the proposed
amendment, the fact that the plea had already been amended once before in 2007,
and the transformation of the appellant’s case together with the addition of a
counterclaim - it is clear that there is no reason to interfere with the Court
of Civil Appeal’s dismissal of the appellant’s appeal. It follows that the
Board should dismiss the present appeal.
31.
In the circumstances, there is no need to address the respondent’s argument
that the appellant required leave to appeal from P Lam Shang Leen J and, as he
had not obtained it, the Court of Civil Appeal should not have entertained the
appeal at all. As for the appellant’s challenge to the final order requiring
him to pay 3,600,000 rupees to the respondent, he concedes that unless he
succeeds in his challenge to the judge’s case management decision, he cannot
make any headway with this argument. By virtue of the Board’s decision
concerning the judge’s refusal to permit the amendment of the plea, this issue
therefore falls away.
32.
Accordingly, the appeal is dismissed.
