When does amendment become abandonment?

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It is well known that a claimant can seek permission from the court to make amendments to its pleaded case.  Sometimes this will be a subtle adjustment as certain facts become clearer or where new issues arise once proceedings are underway.  On other occasions the changes will be more significant - perhaps when a claimant has second thoughts about how its case should (or should not) be advanced.

The second example occurred in the recent case of RG Carter Projects Ltd v CUA Property Ltd [2020] EWHC 3417 (TCC).  The claimant brought proceedings with multiple heads of claim and sought damages of over £14m.  After a defence and reply had been filed, the claimant instructed new lawyers who evidently advised that some aspects of the claim were unsustainable.  The claimant applied for permission to amend its case by removing two of the four heads of claim, thereby reducing the damages sought to under £2 million.  The claimant no doubt anticipated that, if permission to amend the case was granted, the court would make the usual order for it to pay the defendant's costs of and occasioned by the amendments.

However, the court went much further.  Mr Justice Pepperall decided that the amendments amounted to discontinuance - even though the claimant had not filed any notice of discontinuance for these parts of the claim.  The Judge agreed with the defendant who argued that the usual costs order for amendments was insufficient by way of compensation for all its work on the abandoned claims.  The Judge was careful to distinguish this from the desertion of remedies which would not have amounted to discontinuance.  He ordered the claimant to pay the costs of the two abandoned heads of claim in addition to the costs occasioned by the amendments.  The claimant was ordered to make an interim payment of £100,000 with the balance to be assessed.

This case highlights the importance of pleading cases properly at the outset.  A claimant cannot just assume it will be able to adjust the claim once it is up and running.  Of course, however carefully a case is pleaded at the start, it may become necessary to make tweaks or change tack after setting sail.  This needs equally careful consideration.  If a court decides that amendment is abandonment, this could prove very costly.

If you would like more information on the article above please contact James Crighton or Ceris Fuller.

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