ED & F Man Sugar Ltd v Lendoudis – strict approach to amendment of pleaded case where claim form served out of jurisdiction [2007]EWHC 2268 (Comm)

Continuing the restrictive theme of the Malmesbury case (above) when it comes to amendment, Christopher Clarke J refused to allow the claimant to amend its claim form seeking enforcement of an arbitration award under s26 Arbitration Act 1950 and the Judgment Regulation. He also refused retrospectively to grant permission to serve the amended claim form out of the jurisdiction. The original basis of the claimant's application to enforce the award had been defective, and to allow it to amend it so as to plead a new and different basis for enforcement (in this case a fresh action on the award at common law) would have the effect of allowing the claimant to introduce a new cause of action and a new basis of claim. The claimant’s original application had not referred to CPR 6.20(9) which applies where “a claim is made to enforce any judgment or arbitral award” and to allow this amendment would enable the claimant to circumvent the procedure for obtaining permission to serve proceedings out of the jurisdiction.

Comment: the general rule is that you do not have to plead points of law: it is enough to state the material facts. Where, however, permission is needed to serve a pleading out of the jurisdiction under CPR 6.20, the claimant is required to make clear the nature of the legal claim being made. If the pleading sets out a particular legal basis for the claim in such circumstances, the claimant is restricted to presenting the claim on that basis, unless perhaps he has referred to the alternative basis for the claim in the witness statement supporting the application for permission to serve out of the jurisdiction. This decision applies the strict pre-CPR approach when interpreting the power to allow an amendment outside the limitation period under CPR 17.4. As a result, over-hasty applications to seek permission to serve a claim form out of the jurisdiction are extremely dangerous since the usual entitlement to amend the legal basis for the claim at a later point will not be available.