The court refused permission to amend particulars of claim in circumstances where the application had been made very late, there was no good reason for the delay, and permitting the amendment would mean losing the trial date in circumstances where the parties had been preparing for trial for some time.
A professional indemnity policy was issued in July 2007 by the defendant to the claimant, an Italian lawyer. The policy was governed by Italian law. Two claims for professional negligence were brought against the claimant in England and Northern Ireland. In 2014, the claimant issued a claim for cover in respect of only one of the professional negligence claims, and a trial was set for May 2016. The claimant was granted permission to amend his particulars of claim to add the second claim. Following expert evidence, in October 2016 the claimant indicated his intention to further amend his particulars of claim on the basis that a further issue of Italian law required investigation, namely that as a matter of Italian law the defendant was liable for the unlawful conduct of its agent whether negligent or fraudulent.
The claimant served his proposed amended particulars in late November 2016. Following refusal by the defendant to consent to the amendment on 16 December 2016, the claimant made an application to the court for permission to amend his particulars on 21 December 2016. The claimant asserted that a letter dated July 2007, which accompanied the policy, stated that the policy complied with the minimum terms and conditions and could not be avoided on any grounds. Giving evidence, a former employee, who had been the defendant’s agent, stated that he had not signed the letter and that he no longer worked for the defendant at the time. The claimant’s case was that there had been a fraudulent misrepresentation and that the defendant was vicariously liable for the acts of its employees.
The court found that, from mid-2015, the claimant had had grounds to assert that there had been a misrepresentation in the July letter. The court also found that from November 2016, the claimant had had grounds to suspect that the misrepresentation had been fraudulent. However, the court considered that the claim for damages for misrepresentation could have been made earlier, and could see no good explanation for the delay. The court considered that a balance was needed between the injury to the claimant if the amendment was refused, and the injury to the defendant if the amendment was permitted. If the amendment were permitted, investigation would be necessary as to what had happened some 10 years ago, and the court would need to consider whether the employer of the defendant’s agent handed the claimant a letter, whether they knew that the letter was untrue in saying that the agent had signed it, and whether the agent had actually signed the letter. The trial date would certainly be lost, which the court considered to be unjust where the trial had been listed for some time. On the basis that the claimant had given no good explanation for the delay, the court considered that this was a clear case where the application to amend the particulars should be refused.