Pearce v East and North Hertfordshire NHS Trust [2020] EWHC 1504 (QB) 

This article originally appeared in Issue 6 (September 2020).

In a succinct judgment from Lambert J, the High Court has provided a useful summary of the court’s approach to applications for permission to amend a statement of case. 

The claim related to a delay in carrying out an ultrasound examination of the Claimant’s hips following his birth in the breech position. As a result of the delay, a diagnosis of hip dysplasia was made belatedly, with a worse outcome and prognosis for the Claimant. The Defendant had a protocol indicating that such scans should take place within six weeks. However, the Defendant offered the Claimant’s mother an appointment at nine weeks, which she then re-arranged as she was not aware of any urgency. 

The Claimant alleged that the appointment should have been arranged within six weeks in accordance with the protocol, and further that the Defendant failed to explain to the mother that timing was critical. As a result, she did not press for an appointment to be arranged within six weeks, and felt able to rearrange the appointment that was offered at nine weeks. 

As the litigation progressed, the Defendant admitted breach of duty by failing to carry out an ultrasound scan at six weeks (in breach of its protocol). Other allegations of breach were denied – including the allegation of a failure to communicate to the Claimant’s mother that a scan was time-critical. 

It was agreed between the parties that they would proceed to a liability trial only, on the sole basis of the particular breach of duty that had been admitted. In other words, the only liability question for the court was the causative effect of failing to arrange an appointment within six weeks (the Defendant argued that had an appointment occurred within the protocol timeframe, the outcome would have been the same). 

The trial was listed for mid-July 2020, and the Defendant made an application to amend its Defence in early May 2020. The effect of the amendment was, in essence, to argue that the proximate legal cause of the Claimant’s injury was his mother’s failure to take up the appointment that had been offered at nine weeks (the Claimant having argued that treatment at any point up to 12 weeks would have avoided injury). 

The judgment 

At paragraph 10 of her judgment, Lambert J gives an extremely helpful summary of principles to be applied by the court when entertaining applications such as the Defendant’s (under rule 17.3 CPR based on CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345 (TCC) and Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm)). 

The key principles she extracted from the case law were that: 

  • In exercising the discretion under CPR 17.3 , the overriding objective is of central importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted. 
  • A strict view must be taken to non-compliance with the CPR and directions of the Court. The Court must take into account the fair and efficient distribution of resources, not just between the parties but amongst litigants as a group. 
  • The timing of the application should be considered and weighed in the balance. An amendment can be regarded as ‘very late’ if permission to amend threatens the trial date, even if the application is made some months before the trial is due to start. 
  • Where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed. Rather, there is a heavy burden on the amending party to show the strength of the new case and why justice requires the amendment to be allowed. 
  • There needs to be a good reason for the delay in seeking to make the amendment. 
  • The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission. 
  • Prejudice to the amending party if the amendments are not allowed will, obviously, include its inability to advance its amended case, but that is just one factor to be considered. Moreover, if that prejudice has come about by the amending party’s own conduct, then it is a much less important element of the balancing exercise. 

Lambert J concluded that allowing the amendment in this case would necessitate vacating the trial, because it would necessarily have the effect of reviving the Claimant’s allegations of breach which it had previously decided not to pursue (for good reason). That was so because whether or not the failure of the Claimant’s mother to take up the appointment at nine weeks could be said to be the proximate legal cause of the injury would depend to some extent on whether she ought to have been told that the appointment had some urgency. In turn, exploring that argument would require expert evidence on breach which had not been obtained in light of the admissions made and the agreed basis of the trial. 

Because the trial date would be lost, the application was to be treated as “very late”, and in order to be granted permission the Defendant would need to show a good reason for the delay and the amended case had some genuine strength. On the facts, Lambert J found that the amendment had been in the mind of the Defendant for some considerable period (indeed, the argument had been deployed in the Letter of Response), and the explanation for delay was unsatisfactory. Further, she had doubts about the merit of the proposed amendment. The application was therefore refused. 

This is a very digestible case, and there are some key points of which practitioners should take note. In particular, the reminder that for very late amendments the court will not start from the assumption that amendments ought to be allowed, and in particular, the principle that an application to amend will be treated as “very late” if it threatens the trial date, even if made some months before trial. Practitioners are therefore well advised, when considering a potential amendment, to review the directions timetable and ensure that any consequential directions and changes to the timetable can be arranged whilst retaining the trial fixture.