Get your Claim right 1st time – Courts refuse amendment

In Bourke and another v Favre and another [2015] EWHC 277 (Ch) (2 February 2015), the High Court refused the Claimants’ request to amend their particulars of claim only a month before trial in order to add an additional claim.

The Court held that the Claimants should have thought of the alternative claims sooner, particularly as the claim related to a property matter and one of the Claimants was a Partner in a firm of Solicitors specialising in property disputes.

It wasn’t overlooked that there was potential for the Claimants to bring a second action in any event so the Court chose to first allow the Defendants the option to decide whether they wished to deal with the new claims in the forthcoming trial.

In reaching his decision, the Judge considered the four relevant factors set out in Brown v Innovator One plc [2011] EWHC 3221 (Comm), as to whether the late amendment should be permitted, being:

  1. The history regarding the amendment;
  2. The prejudice to the Applicant if it were refused;
  3. Any prejudice to the Respondent if it were allowed; and
  4. The clarity and particularity of the amendment.

Furthermore, in the absence of a good explanation for any delay in seeking an amendment within proceedings, the Courts commented that an Applicant only has itself to blame.

This case shows the importance of careful consideration and, where appropriate, taking professional advice before commencing a claim. Unjustified late amendments are likely to either be refused or, at best, come with costs implications that are best avoided!

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