Practice and Procedure


PUBLISHED May 30, 2003

The master's decision to refuse permission to amend a statement of claim to include a new complaint had been correct as the proposed claim had no realistic prospect of success.Appeal from the order of Master Turner dated 19 December 2002 refusing permission to amend the claimants' ('B') statement of claim to add the complaint that the defendant solicitors ('H') had been negligent in failing to pursue a claim for negligence against the claimants' previous solicitor ('H'). S acted for the claimants pursuant to a retainer which was terminated on 4 November 1996. S was originally instructed on 24 July 1992 to advise B in connection with proceedings brought against them and a counterclaim they wished to pursue. The original litigation arose out of a transaction whereby the B had acquired a business. It was the B's case that the relevant contract was entered into orally on or about 18 February 1991 and completed in the following April. As part of the arrangements B acquired 135 goats, in respect of which they pleaded that certain representations were made prior to contract about the health of the goats, which they later relied upon. The representations turned out to be false and B suffered loss as a result. The vendors of the business issued proceedings to recover the outstanding balance of the purchase price. B wished to rely on the alleged misrepresentations by way of set off and counterclaim. They engaged S to take over the litigation from H. Summary judgment had already been entered in respect of the vendor's claim. However, S obtained an order for conditional leave to defend. Progress in the litigation thereafter was said to have been "desultory". B alleged that their lost opportunity to pursue the full extent of their counterclaim was caused by the S's negligence and/or breach of contract during the period of their retainer.HELD: (1) The master had considered both the merits of a claim in negligence against H and those of a claim against the defendants for not having pursued H. He had placed emphasis upon the lack of any evidence to the extent that B had not informed H about the representations on which they wished to rely. He had therefore concluded that there was no realistic prospect of success for any claim founded upon negligence on H's part. No fault could be found with this reasoning. (2) Another of the master's substantive grounds for refusing permission was that the claim would be statute barred. It was true that the master could have set out the arguments in rather more detail but it was quite possible from what he had said on the face of the judgment and from the limitation arguments advanced before him, to identify what his reasons had been. The master had been correct to hold that the proposed claim would be statute barred. (3) The master had also set out his thoughts on delay as militating against granting permission for these amendments. It was plainly relevant but not determinative. Delay would only have been of significance if the proposed plea had been admissible in principle but had given rise to disproportionate prejudice by reason of lateness.Appeal dismissed.

[2003] EWHC 1091 (QB)