Jersey Unreported Judgments

Family - application by the plaintiff for leave to amend Order of Justice dated 1st October 2014.

[2015]JRC203

Royal Court

(Samedi)

2 October 2015

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, sitting alone

 

Advocate C. Hall for the Plaintiff.

Advocate L. J. Glynn doe the Defendant.

judgment

the deputy bailiff:

1.        This is an application made by I ("the Plaintiff") for leave to amend her Order of Justice dated 1^st October, 2014, by, in effect, the addition of a further cause of action relating to the return of certain belongings that she alleges are retained unlawfully by J ("the Defendant"). 

2.        The application is made under Rule 6/12 of the Royal Court Rules 2004 which provides that I may allow the plaintiff to amend her claim at any stage of proceedings "on such terms as to costs or otherwise as may be just".  Although I was addressed on the principles relating to consolidation (Rule 6/11) in fact there is nothing to consolidate in that, at the present time, there are no separate proceedings in existence relating to this new matter. 

3.        I was referred briefly to authorities on the matter of amendment.  I was referred firstly to Brown v Barclays Bank Plc [2002] JLR N1, a judgment of the Court of Appeal in which the applicant sought to bring an amendment to his claim immediately prior to trial the Court of Appeal held that:-

"The burden was on the applicant to show:-

a) why the new matters had not been pleaded before;

b) the strength of the new case;

c) that an adjournment should be granted, if one was sought;

d) that the adverse effects of an adjournment or any other additional preparations for trial which were required of the Respondent, as a consequence of the amendment could be remedied; and

e) that the balance of justice came down in his favour."

4.        In the case of Van Neste and others v Saunders and Others [1997] JLR N 2A Le Marquand, Judicial Greffier, held that:-

"Any proposed amendment raising a case which is bound to fail, whether because it be inconsistent in material or useless, or because it is one which the plaintiff has procluded himself from making, will be disallowed; and making of any amendment which is subsequently  transpires was useless will be punished by an award of costs. Therefore an objection to an amendment which will be a valid ground for striking out the amended action should preclude the Court from allowing that amendment to be made, particularly since at that time the defendant will not have had the opportunity to support his case with an affidavit, which he would on an application to strike out."

5.        In Vezier v Bellego and Others [1994] JLR 75 paragraph 2 of the headnote states:-

"In any case, in exercising its discretion under the rules or, alternatively in the exercise of its inherent jurisdiction, the Court would apply the principles in body in order Rule 4 and 5 of the English Rules of the Supreme Court of present case. Whilst the court could grant leave to amend defects in procedure notwithstanding that this would deprive the defendants of a limitation defence, it could not thereby allow a new claim to be brought which would otherwise be prescribed, except:

(a) if the amendments sought would merely alter the capacity in which a party sued; or

(b) in any new cause of action brought in by the amendment arose out of the same facts or substantially the same facts as the claim already being brought, as in the present case...."

6.        Lastly, reference was made to the case of Alhamrani and Others v Alhamrani and Others [2007] JLR 44, which states, in connection with an application to amend proceedings where limitation was in issue, at paragraph 2 of the headnote:-

"If the limitation period for the dog leg claims had expired, the plaintiffs would not have been granted leave to introduce them because they did not arise from the same or substantially the same facts as the obsolete claims under Article 56. The director should not be put in the position, by an amendment introducing a new client that would defeat a limitation defence, of having to investigate facts of obtained evidence of matters not directly in issue previously in the proceedings...."

7.        The current proceedings, which as I have said have been ongoing since October 2014 relate to the claim by the plaintiff for £50,000 which she alleges to be due as a result of a contract between herself and the defendant arising out of their former relationship.  Although they had never married they had been in the relationship for a significant period and had had two children.  The claim for £50,000 arose out of the ending of that relationship and an alleged agreement between the plaintiff and the defendant that, amongst other things, related to the transfer by the plaintiff to the defendant of a shareholding in X Limited, which was the company through which the family's income was derived during the course of the relationship between the plaintiff and defendant. 

8.        The new claim which the plaintiff now seeks to introduce into this case is for the return of certain belongings improperly, so the plaintiff alleges, retained by the defendant following the end of their relationship.  The belongings relate to a number of pieces of jewellery and other things and in the proposed amendment a list of estimated values is given in the total sum of approximately £16,000.  The proposed amendment to the pleadings contains an allegation that the belongings were gifted by the defendant to the plaintiff during the course of their relationship but that the plaintiff had returned them to the defendant under duress.  They were therefore retained improperly by the defendant. 

9.        It is apparent from the correspondence that I have seen that the defendant does not dispute that certain belongings exist or that they are the property of the plaintiff.  What he appears to dispute is that he has retained those belongings and he says that he has looked for them but cannot find them.  The proposed amendment contains a claim by the plaintiff for damages in lieu of the return of the belongings. 

10.      The trial of the original Order of Justice is set down for two days beginning on 2^nd November.  We are, accordingly, some five weeks away from the hearing. 

11.      The allegations that are contained within the amendment are, in the context of these proceedings, entirely new and would clearly require some additional preparation.  Advocate Glynn for the defendant resists the amendment on the basis that it would place the trial dates in jeopardy because of the additional work needed.  It is argued that the alleged values of the assets will need to be considered as will the provenance.  It was not, apparently, conceded that the list of belongings claimed by the plaintiff (nor the value attributed to them) was accurate.  Furthermore there may be third party evidence to be introduced relating to the ownership and retention of the belongings. 

12.      Advocate Hall, for the plaintiff, argues that the matter is linked to the original claim in as much as the alleged agreement for the return of the belongings related to the end of the relationship, and would turn on the Court's perception of the credibility of the plaintiff and defendant.  It is a modest additional claim.  There were strong reasons to deal with all of the outstanding issues between the parties in one go, particularly, so Advocate Hall informed me, because the Court has on another occasion made it clear that the children of the relationship between the plaintiff and defendant should not be involved in the disputes between them in other proceedings between the parties.  Advocate Hall points out that J has already tendered an affidavit in the current proceeding from the parties' eldest child. 

13.      On the question as to why the application to amend has been brought so late in the day, Advocate Hall indicated that she had only been informed of the position by the plaintiff relatively recently and it had not been until June that the defendant's position with regard to the belongings had been clear.  The plaintiff had informed her lawyers who are acting in connection with a family dispute between the parties but not in connection with this civil claim.  An e-mail passing between the defendant's legal advisers and the plaintiff's legal advisers dated 23^rd June states:-

"Our client has never offered the items of women's fashion listed below.  He offered to look for them and provide them to your client if found.  He has unsuccessfully looked for these items in the past.  He will continue to search.  If they can be located, we are instructed your client is welcome to them."

14.      It is apparent, therefore, that not only has the plaintiff not given information about this new matter to her current lawyers at the earliest opportunity, but the defendant's position with regard to the items has been known at least since late June.  This application has been brought before me as a matter of urgency on 24^th September. 

15.      There is a limitation issue.  The amendment is put on the basis of the tort of conversion or a breach of contract.  Although I do not need to consider the various relevant dates I am advised that if it is indeed a contractual claim then no limitation issue arises but if it is a tortious claim then limitation is in issue.  I express no view as to what arguments may or may not be open to the defendant by way of limitation and indeed I was not addressed at any length at all on that issue.  All I can say at this juncture is that they may be a limitation defence available to the defendant in connection with the new claim which I should not disregard. 

16.      I do not think that the arguments put forward by Advocate Glynn, insofar as they related to the need to assess value of the belongings, carry a great deal of force.  It would theoretically be open to me to permit the amendment, for the Court to determine liability, and, if the defendant is found liable but is unable to return the belongings, then to deal subsequently with the quantum of damages. 

17.      It was submitted to me by Advocate Hall that were I to allow the amendment then there would be time between now and the trial dates for an application to be made by the defendant to strike out on the basis of limitation.  I do not think that this would necessarily be open to the defendant but, in any event, this does not seem to me to be a satisfactory way of proceeding.  It may be costly and, further, were an application to strike out to come before this Court or indeed before the Master then there may be an appeal from it and the trial dates would be in jeopardy. 

18.      It further appears to me that there is some risk that the two days currently set aside may not even prove to be entirely sufficient to dispose of the case as presently pleaded.  Whilst I am optimistic that two days will suffice, I cannot say so with certainty.  That uncertainty will of course become more marked were I to expand the issues before the trial Court. 

19.      Were I to allow the amendment in my view there would need to be consequential orders relating to discovery, the filing of supplemental statements on the part of the plaintiff and defendant and the potential filing of further witness statements.  The hearing would, in addition to further evidence, very possibly also need to deal with submissions as to the law relating to limitation. 

20.      It is apparent that the application to amend has not been made at the earliest opportunity and could certainly have been made some time ago.  If I allow the plaintiff to amend, the effect of that may well be to deprive the defendant of a limitation defence. 

21.      Whilst the new dispute would be connected in some respects to the current dispute it relates to a different subject matter and, to an extent, a different cause of action. 

22.      For these reasons in my view it is not appropriate to amend the proceedings at this stage in the manner proposed and I refuse the application. 

23.      I leave over the matter of the costs of this application to be dealt with by the trial court. 

Authorities

Royal Court Rules 2004.

Brown v Barclays Bank Plc [2002] JLR N1.

Van Neste and others v Saunders and Others [1997] JLR N 2A.

Vezier v Bellego and Others [1994] JLR 75.

Alhamrani and Others v Alhamrani and Others [2007] JLR 44.