Al Nehayan v Kent [2015]

In Al Nehayan v Kent [2015] EWHC 1176 (QB) at a case management conference before Master McCloud on the 23rd January 2014 she ordered that the Claimant should file and serve his amended particulars of claim in the form set out in the CMC bundle and by the 7th March 2014 the Defendant should also file and serve his amended defence and counterclaim.

The order also provided for the case management conference to be relisted with the possibility of the matter being transferred to the Chancery Division with the Defendant paying the Claimant’s costs as to his amended pleading.

On the 1st September 2014 there was a hearing before Master Eyre as Master McCloud was unable to conduct the hearing. The Claimant’s Solicitor had contended that Master McCloud’s Order from 23rd January 2014 only granted permission to make amendments following the Claimants amended particulars of claim and the Claimant was ordered to serve evidence in response to the Defendants evidence, which evidence was late and therefore on the 2nd October 2014 he applied for an extension of time and relief from sanctions.

On the 12th November 2014 Master Eyre conducted a hearing before the parties where the Master observed that the defence and counterclaim seemed to him to be a substitution with which the Defendant’s counsel agreed saying that

  • As there had not been any admissions, permission was not required
  • If there had been admission then Master McCloud gave permission to withdraw in the hearing before her on the 23rd January and
  • Alternatively, if permission had not been given then this was a matter when it should have been

Claimant’s counsel contended that Master McCloud was only agreeing in principle to the amended defence and counterclaim.

In Master Eyre’s order of the 24th November 2014 he stated Master McCloud’s order of the 23rd January 2014 must be seen as giving the Defendant leave to amend in accordance with the Amended Defence and Counterclaim which was filed at the Court and served on the 7th March 2014. Further, the Defendant, therefore, would not need leave of the Court to withdraw any admissions from its original Defence.

Claimant’s counsel argued that the orders of Master McCloud of the 23rd January 2014 and Master Eyre’s of the 12th November 2014 were both flawed in respect of withdrawal of the Defendant’s admission under CPR 14 and amended defence and counterclaim under CPR 17.

The Honourable Justice Cranston in his judgment found that Master Eyre had acted correctly as the Claimant had before him accepted that Master McCloud had agreed “in principle” to amendment of the defence and counterclaim and that the Claimant could not appeal against his order arguing on a procedural irregularity particularly when Master Eyre in his draft order had allowed a window for the Claimant to make further argument which the Claimant did not take advantage of.

Justice Cranston concluded that the overall aims of the CPR are to allow the Courts to manage cases in a just and fair manner at proportionate cost in accordance with the rules.

He continued that the Masters may not have followed the rules to the letter but that they had treated the Claimant fairly given the way he had conducted his claim during the 18 month period and he was in the same position he would have been if the Masters had behaved and handled the case any differently. He therefore dismissed the appeal.

Suite 205/206 Cotton Exchange
Bixteth Street, Liverpool L3 9LQ

T — 0151 541 2040
T — 0203 846 2862