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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Ali Meerza & Ors v Al Baho & Ors [2015] EWHC 3154 (Ch) (03 November 2015) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2015/3154.html Cite as: [2015] EWHC 3154 (Ch) |
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HC2015000031 & HC2015002330 |
CHANCERY DIVISION
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
(1) Asad Ali Meerza (2) Mohsen Mehra (2) Sheikha Hind Salem Homoud Al-Jaber Al-Sabah (acting as herself and as Administratrix of the Estate of Sheikh Salem Homoud Al-Sabah) |
Claimants |
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- and - |
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(1) Tareq Al Baho (2) Sheikha Salem Homoud Al-Jaber Al-Sabah (3) Andrew Pinnell (4) BC Penthouse Ltd (A company incorporated under the laws of Gibraltar) (5) Gulf Heritage Properties Ltd (A company incorporated under the laws of the British Virgin Islands) (6) Hussain Sajwani |
Defendants |
____________________
Adrian Davies (instructed by Wilson Barca LLP) for the First, Second and Third Defendants
Jawdat Khurshid (instructed by SC Andrew LLP) for the Fifth and Sixth Defendants
Hearing dates: 19th and 20th October 2015
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Crown Copyright ©
Peter Smith J:
INTRODUCTION
1) Permission to amend the Particulars of Claim in claim no. HC2011000065 ("the First Action") in the form of the draft Amended Consolidated Particulars of Claim in claim no. HC2015002330 ("the Third Action");2) Further or alternatively for an order that those draft Amended Consolidated Particulars of Claim in the Third Action stand as the Amended Consolidated Particulars of Claim in the First and Third Actions and in claim no. HC201500031 ("the Second Action"); and
3) Summary judgment in those actions in respect of the claims by the Third Claimant ("Sheikha Hind") against the First Defendant ("Mr Al Baho") the Second Defendant ("Mr Pinnell") and/or the Fourth Defendant ("BCP") including to the extent necessary permission to make this application pursuant to CPR 24.4 (1);
4) Alternatively Default Judgment pursuant to CPR 12 against BCP and/or Mr Al Baho in claim no. HC2015002330:
5) Payment out of the court of the sum of £78,418 lodged in Court by Sheikha Hind on 19th March 2015 as security for costs of Mr Al Baho, Mr Pinnell and BCP; and
6) Dismissal of the applications brought (variously) by Mr Al Baho the Second Defendant ("Sheikha Salem") Mr Pinnell and BCP.
1) Application by Mr Al Baho and Sheikha Saleem dated 1st July 2011 to strike out Sheikha Hind's claim for non compliance with CPR Part 19 (3);2) By Mr Al Baho, Sheikha Salem and Mr Pinnell dated 7th September 2011 seeking declaration that Sheikha Hind is not entitled to represent the Estate of the late Sheikh Salem Hamoud Al-Jaber Al-Sabah ("Sheikh Salem");
3) By the Third Claimant dated 7th September 2011 that if CPR 19 (7) applied she should be appointed to represent Sheikh Salem's estate ("the Estate").
4) By Sheikha Salem dated 8th December 2011 to strike out Sheikha Hind's claim under CPR Part 3.4 or for reverse Summary Judgment under CPR Part 24 for permission to bring contempt proceedings against all Claimants;
5) By Mr Al Baho and Sheikha Salem dated 14th February 2012 for permission to amend their Defence and to strike out Sheikha Hind's claim under CPR 3.3 or reverse Summary Judgment under CPR Part 24; and
6) By Mr Al Baho dated 20th May 2014 to strike out Sheikha Hind's claim.
SURPRISE APPLICATION OF MR AL BAHO
"Submission to the jurisdiction.
26 Civil Procedure Rule 11, so far as material, provides as follows:
"Procedure for Dispute in the Court's Jurisdiction"
11(1) A defendant who wishes to (a) dispute the court's jurisdiction to try the claim, or (b) argue that the court should not exercise its jurisdiction may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.
11(2) A defendant who wishes to make such an application must first file an acknowledgement of service in accordance with Part 10.
11(3) A defendant who files an acknowledgement of service does not, by doing so, lose any right that he may have to dispute the court's jurisdiction.
11(4) An application under this rule must -
(a) be made within 14 days after filing an acknowledgement of service; and
(b) be supported by evidence.
11(5) If the defendant -
(a) files an acknowledgement of service; and
(b) does not make such an application within the period specified in paragraph (4) he is to be treated as having accepted that the court has jurisdiction to try the claim."
Thus, mere failure to make the appropriate application within the period of 14 days gives rise to a deemed submission to the jurisdiction by virtue of 11(5). But subject to the power of the court under CPR Rule 3.1(2)(a) to extend the time for a challenge to the jurisdiction (see Sawyer v Atari Interactive Inc. [2005] EWHC 2351) If time is extended then the defendant is able to challenge the jurisdiction of the court over him on any grounds otherwise available to him. But if by conduct he has affirmatively submitted to the jurisdiction then there is no point in granting an extension of time to make an application for that purpose which is bound to fail.
27 The test to be applied in determining whether any particular conduct amounts to a submission to the jurisdiction was considered by Colman J. in Spargos Mining NL v Atlantic Capital Corporation [1995] reported only in "The Times" for 11th December, but quoted in full by Patten J. in SMAY Investments Ltd. v Sachdev [2003] 1WLR 1973 at p.1976. I reproduce the whole of the quote as set out in that paragraph 41 from the Judgment of Patten J:
""In approaching the question of submission, I have in mind the following authorities. In Astro Exito Navagacion S.A. v. W.T. Hsu, otherwise know, more pronounceably, as The 'Messiniaki Tolmi' , [1984] 1 Lloyds Reports, 266, Lord Justice Goff (as he then was) at page 270, said this:
'Now a person voluntarily submits to the jurisdiction of the Court if he voluntarily recognizes, or has voluntarily recognized, that the Court has jurisdiction to hear and determine the claim which is the subject matter of the relevant proceedings. In particular, he makes a voluntary submission to the jurisdiction if he takes a step in the proceedings which in all the circumstances amounts to a recognition of the Court's jurisdiction in respect of the claim which is the subject matter of those proceedings. The effect of a party's submission to the jurisdiction is that he is precluded thereafter from objecting to the Court exercising its jurisdiction in respect of such claim. Whether any particular matter, for example an application to the Court, amounts to a voluntary submission to the jurisdiction must depend upon the circumstances of the particular case.'
In Sage v. Double A Hydraulics Ltd, [1992] Times Law Reports, 165, Lord Justice Farquharson said (and this is a report of the judgment which is not reported in oratio recta):
'A useful test was whether a disinterested bystander with knowledge of the case would have regarded the acts of the Defendant, or his solicitors, as inconsistent with the making and maintaining of his challenge.'
In arriving at the view to be imputed to the disinterested bystander, it seems to me that one has to bear in mind that there will be an effective waiver, or a submission to the jurisdiction, only where the step relied upon as a waiver, or a submission to the jurisdiction, cannot be explained, except on the assumption that the party in question accepts that the court should be given jurisdiction. If the step relied upon, although consistent with the acceptance of jurisdiction, is a step which can be explained also because it was necessary or useful for some purpose other than acceptance of the jurisdiction, there will, on the authorities, be no submission.
If the well-informed bystander had been left in doubt because what the defendants had done was equivocal, in the sense that it was explicable on other grounds in addition to agreement to accept the jurisdiction of the court, then the conclusion must be, on the authorities, that there would have been no submission to the jurisdiction. The representation derived from the conduct of the party said to have submitted must be capable of only one meaning."
28 Thus the test to be applied is an objective one and what must be determined is whether the only possible explanation for the conduct relied on is an intention on the part of the defendant to have the case tried in England."
PRIOR DISPOSAL
STOCK TAKE
MR AL BAHO AND MR PINNELL'S APPLICATIONS
"Furthermore, and in accordance with the laws of the State of Kuwait, the heirs of the Deceased, who own at least 75% of the Deceased's estate, as calculated on the basis of the value of their respective shares in the Deceased's estate as set out in the above mentioned Succession Certificate, shall be entitled to carry out the ordinary acts of management of the Deceased's estate, or to dispose of any of the assets forming part of the Deceased's estate, may appoint one of them or any other person as a manager to perform such activities on their behalf."
BASIS OF MR AL BAHO'S APPLICATION
"First paragraph 14 noted that it was agreed between the parties that the decision of Judge Langan QC was correct and subject only to any help the Claimant might derive from CPR 19.8 (1) their claim was a nullity and must be struck out and could not be retrospectively validated by the subsequent grant of letter of administration."
"15 The latter point is well illustrated by this court's decision in Ingall v Moran [1944] KB 160. There the plaintiff issued his writ in September 1942 purportedly as the administrator of the intestate's estate, but did not obtain a grant of administration until November 1942. This court, allowing the defendant's appeal against the judgment the judge had entered against him, held that the grant did not retrospectively validate the writ, nor could the writ be the subject of an amendment validating the plaintiff's claim to sue as administrator. The grant enabled the plaintiff to issue a new writ, but that was all. Scott LJ, at 165, described the original writ as 'incurably a nullity. It was born dead, and could not be revived.' Luxmoore LJ, at 169, said that the plaintiff's action:
'… was incompetent at the date when the writ was issued, and that the doctrine of the relation back of an administrator's title to his intestate's property to the date of the intestate's death when the grant has been obtained cannot be invoked so as to render an action competent which was incompetent when the writ was issued.'
Goddard LJ, at 172, said that 'this action was, and always remained, incompetent, and judgment ought to have been entered for the defendant.'
16 I regard it as clear law, at least since Ingall, that an action commenced by a claimant purportedly as an administrator, when the claimant does not have that capacity, is a nullity. That principle was recognised and applied by this court in Hilton v Sutton Steam Laundry [1946] KB 65 (per Lord Greene MR, at 71) and Burns v Campbell [1952] 1 KB 15 (per Denning LJ, at 17, and Hodson LJ, at 18). In Finnegan v Cementation Co. Ltd [1953] 1 QB 688, Jenkins LJ said, at 700:
'As to the law, so far as this court is concerned it seems to me to be settled by Ingall v Moran and Hilton v Sutton Steam Laundry and, I may add, by Burns v Campbell, that an action commenced by a plaintiff in a representative capacity which the plaintiff does not in fact possess is a nullity, and, further, that it makes no difference that the claim made in such an action is a claim under the Fatal Accidents Acts which the plaintiff could have supported in a personal capacity as being one of the dependants to whom the benefit of the Acts extends.'
17 Before coming to Part 19.8(1), I should refer to what this court said about Ingall in Haq v Singh and another [2001] EWCA Civ 957; [2001] 1 WLR 1594. The point there in issue arose under CPR Part 17.4, a rule made under the provisions of section 35 of the Limitation Act 1980 and which, by its own terms, expressly applies only to cases where a period of limitation has expired. Part 17.4 provides, so far as material, that:
'(1) This rule applies where –
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired …
(4) The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.'
18 In Haq a discharged bankrupt brought in 1993 a claim for damages, whereas the relevant cause of action had upon her bankruptcy vested and remained in her trustee. An amended defence served in 2000 asserted her lack of capacity to sue, whereupon she obtained an assignment from her trustee of the cause of action. The issue was whether the judge was right to permit her to amend to plead the assignment. He had so held on the basis that before the assignment she had no capacity to sue, whereas after the assignment she had the capacity to sue as the trustee's assignee and therefore the case was within Part 17.4(4). This court allowed the defendants' appeal, holding that since both before and after the assignment the claimant was suing in a personal capacity, her capacity had not altered and so she was not entitled to amend. Arden LJ, however, also expressed the obiter view, at paragraph [22], that:
'The effect of CPR r 17.4(4) is therefore to remove the effect of Ingall v Moran [1944] 1 KB 160, the technicalities of which Singleton LJ in Finnegan v Cementation Co Ltd [1953] 1 QB 688, 699 described as a "blot upon the administration of the law."
Pill LJ expressed like obiter views at paragraphs [29] to [32].
19 For myself, I respectfully question the correctness of that assessment of the effect of Part 17.4(4). First, it is not easy to see how a claim which, as Ingall explained, is born dead and is a nullity can be given life by an amendment. Second, I am not confident that it was the Ingall principle pure and simple that was the 'blot' to which Singleton LJ was referring. He was, as I read Finnegan (see [1953] 1 QB 688, at 699), referring rather to the apparent injustice of the instant case (like Hilton, supra) in which a plaintiff who could have sued in her personal capacity under the Fatal Accidents Acts found herself barred by time from suing at all because she had mistakenly sued in time exclusively as administratrix when she had no capacity to do so. Third, as is pointed out in Executors, Administrators and Probate, Williams, Mortimer and Sunnucks, 19th Edition, 2008, in Note 68 to paragraph 8-10, Part 17.4 applies only where a period of limitation has expired and:
'Clearly, it would be an extraordinary result if proceedings could be saved by amendment where a limitation period has expired, but not where such a period had not expired. However, it is not clear on what statutory authority an amendment in the latter case is permitted and, without such authority, it is difficult to see how the earlier authorities (see fn. 65 above [which includes Ingall, Hilton and Finnegan]) can be ignored particularly as they deal with substantive rather than procedural law. Certainly the somewhat ambiguous words at the end of s. 35(7) of the Limitation Act 1980 would not seem sufficient for this purpose. … It may be, therefore, that the true effect of CPR r. 17.4(4) is much more limited than the Court of Appeal in Haq suggests…'
20 Having expressed my doubts about those observations in Haq, I regard it as unnecessary to say more about them. The judge was, I consider, right to regard Haq as providing no guidance for the purposes of the application before him. First, at the time of the application, the claimants had not obtained a grant and so no amendment application was before him. Second, no limitation period had expired and Part 17.4(4) applies only where one has. Mr Oakley expressly disavowed any reliance on Haq".
"29 Accepting all this, where I have difficulty is in seeing how any of it helps the appellants. In my judgment the flaw in their case is exposed by the decision in Ingall. What that case decided, by a decision binding upon us, is that a claim purportedly brought on behalf of an intestate's estate by a claimant without a grant is an incurable nullity. Subject only to whatever Part 19.8(1) may empower, it follows that the claim the appellants issued was equally an incurable nullity. The logic of Mr Oakley's submission is however that the force of Part 19.8(1) is to confer a jurisdiction upon the court to turn such a nullity into valid proceedings which may be pursued to judgment. "
30 I am unable to accept that and, in agreement with the judge, consider that Part 19.8(1) has no application to the present case. The appellants' invocation of Part 19.8(1) was responsive to the defendant's strike out application. Logically, however, if they are right about Part 19.8(1), they could (indeed should) promptly after issuing their claim form have applied to the court for an order that the nullity they had thereby conceived should have life breathed into it by way of an order that they be appointed to represent the estate of the deceased intestate and the claim permitted to proceed to trial. The reason that any such application should and would have failed is because Part 19.8(1) does not, in my view, have any role to play in the way of correcting deficiencies in the manner in which proceedings have been instituted. It certainly says nothing express to that effect and I see no reason to read it as implicitly creating any such jurisdiction. It is, I consider, concerned exclusively with giving directions for the forward prosecution towards trial of validly instituted proceedings when a relevant death requires their giving. In the typical case, that death will occur during their currency and will usually be of a party. More unusually, it may have preceded them. But on any basis it appears to me clear that it is no part of the function of Part 19.8(1) to cure nullities and give life to proceedings such as the present which were born dead and incapable of being revived. In ordinary circumstances there is no reason why anyone with a legitimate interest in bringing a claim on behalf of an intestate's estate should not first obtain a grant of administration and so clothe himself with a title to sue. I am unable to interpret Part 19.8(1) as providing an optional alternative to such ordinary course. I would dismiss the appeal on the Part 19.8(1) issue.
"39 Neither at trial nor when he obtained permission to appeal did Azam have any standing to conduct litigation on behalf of his mother's estate. He has no legal standing to conduct this appeal on the basis of that permission, even though he has now obtained a grant of letters of administration to his mother's estate. The grant on 31 January 2012 has not retrospectively given him a capacity that he did not have to issue an appeal notice or to apply for and obtain the permission to appeal from Arden LJ on 20 April 2011: see Millburn-Snell & Ors v Evans [2011] EWCA Civ 577; [2012]1 WLR 41, a decision on the nullity of proceedings commenced on behalf of an estate without first obtaining a grant of letters of administration. An administrator's title is derived solely from the grant of letters of administration, which does not retrospectively validate antecedent suits.
40 Azam should have informed the court, the Court of Protection and the parties of his mother's death, instead of carrying on with the litigation while positively asserting that his mother was alive. He actively and intentionally misled the court and the Bank and his pro bono advisers that his mother was alive. He did so in witness statements in February and July 2010; in evidence on oath at the trial in September 2010 saying that his mother was living in the USA, and in relation to obtaining permission for this appeal.
41 I would set aside the order granting permission to appeal on the basis that there is a compelling reason for so doing: CPR 52.9(2). Arden LJ would not have granted Azam permission to appeal, had she been informed, as she should have been, that Mrs Qutb had died and that Azam had no legal standing to act for her or for her estate.
42 I would strike out the appeal notice for the same reason. See CPR 52.9 (1)(a).
43 That does not mean that the order of Newey J is a nullity. Like all orders of the court, it stands and has effect, unless and until it is set aside on an application to the Chancery Division, which may impose conditions on granting such an order, or on an appeal to this court. So far as this court is concerned, the permission to appeal was obtained by the deception of a person without standing to launch an appeal or to obtain permission to appeal and, on the permission being set aside for those reasons, there is no appeal to be decided and so it must be dismissed."
"20 Mr Millett's primary proposition remains, however, that no amendment can be made to introduce a cause of action arising out of facts occurring subsequent to the commencement of proceedings, where at the date of their commencement no cause of action existed so that the claim as originally issue was "incurably bad". He relied upon Roban Jig & Tool Co. Ltd. and Elkadart Ltd. v Taylor [1979] 1 FSR 130. There the plaintiffs commenced proceedings in August 1995 as owners of the copyright in certain drawings, in which the judge held (on a summons to strike out the claim) that the pleadings contained no shadow of a suggestion that the plaintiffs had either a legal or any equitable title. Before striking out the claim relating to these drawings, the judge considered whether the defect was one which could be cured if the plaintiffs took an assignment of the copyright from the individuals owning the copyright, and then sought to amend. He concluded that it could not beso cured, after referring to Eshelby v Federated European Bank [1932] KB 254 and 423. On appeal, his decision was upheld. Before the Court of Appeal, reference was evidently made to specific assignments in 1977, on which it was now suggested that the plaintiffs could and should be allowed to rely by way of amendment: see per Bridge LJ at p.143. Bridge LJ referred to Lord Denning MR's statement in Alfred C. Toepfer v Peter Cremer [1975] 2 LL.R. 118, 125, that the rule against allowing amendments to a claim to plead a subsequently arising claim is one of practice, not law, and can be departed from when the justice of the case required. Lord Denning went on to refer to the everyday practice of giving judgment for mesne profits, interest or loss of earnings arising post-writ. Bridge LJ recognised that "those departures in practice from the absolute rigour of the rule that a plaintiff cannot recover on a cause of action which accrued only after the writ was issued were the daily practice of the court". But he went on to say that nothing "could possibly lead to the conclusion that it was appropriate to allow a plaintiff to amend so as to introduce a fact giving him a cause of action when at the time when the writ was issued he had no cause of action at all".
21 In Vax Appliances Ltd. v Hoover plc [1990] RPC 656, the claim was for infringement of a patent relating to a cleaning head. The defendants counter-claimed for revocation of the patent. Later, they sought to amend to seek a declaration that a new cleaning head that they had by now developed did not infringe the patent. This represented a cause of action that did not exist at the date when the original counter-claim was made. Mummery J allowed the amendment. He distinguished Roban Jig as a case where the original claim was "incurably bad", and pointed out that, since the decision in Eshelby, there had been two changes: first, the doctrine of "relation back" has been disapproved in Liff v Peasley [1980] 1 WLR 781 and Ketteman v Hansel Properties Ltd. [1987] AC 189; second, RSC O.18 r.9 gave a more general power to amend to include in a pleading matters arising since the date of the pleading. I interpose to say that that power was however subject to RSC O.18.r.15(2), precluding a plaintiff from raising in his statement of claim any cause of action which was not mentioned in the writ or did not arise from the same or related facts. Mummery J. pointed out that the matters sought to be introduced were "not a wholly new cause of action".
22 In Bastone & Firminger Ltd. v Nasima Enterprises (Nigeria) Ltd. [1996] CLC 1,902 Rix J again took a general view of the court's discretion to allow the addition (within the limitation period) of causes of action based on assignments subsequent to the writ, but was also able to distinguish Roban Jig on the facts. Finally, in Hendry v Chartsearch Ltd. [1998] CLC 1,382, this court was concerned with proceedings begun in April 1994 claiming breach of an agreement for data processing and computer services, entered into with the defendants by a company Interface of which the plaintiff was chairman and with his wife owner. The defendants applied to strike out the claim on the ground that the plaintiff was not party to the agreement. The plaintiff maintained that, shortly before the hearing of the application, he had taken an assignment from his company of its claims against the defendants under the agreement. The defendants resisted leave to amend on the ground that it was not appropriate to add a fresh cause of action, unless the plaintiff had some valid cause of action at the date of the writ or counterclaim. Evans LJ (with whose judgment Henry and Millett LJJ agreed) said that scope of the Rules had changed since Eshelby, and that
"in accordance with modern practice generally, the court has a general discretion which should not be restricted by hard-and-fast rules of practice, if not of law, such as that suggested here".
Evans LJ went on to say that the general discretion should be "exercised in accordance with the justice of the case". He granted leave to amend, saying that the cause of action (breach of contract) remained the same, and that the amendment merely specified the reason why the plaintiff was entitled to pursue it.
23 We are in my view bound by Hendry v . Chartsearch Ltd., which appears to me also to reflect the appropriate modern approach. Further, if and so far as it may be material, I do not regard the present case as one where, as at the date when Moore-Bick J. made his order allowing an amendment, the original claim could be said to be "incurably bad". The validity or otherwise of the first demand was a properly arguable point, which was only decided after a preliminary issue (issue (i)) leading to full argument first before HHJ Hallgarten and now before this court.
24 I therefore consider that, if the appellants had prior to 20th August 2000, sought permission to amend their particulars of claim to rely on the second demand, the court would have had power to grant and could properly have granted such permission. Although this is a matter which is probably anyway concluded in the appellants' favour by Moore-Bick J's order, I also consider that the court would have done so. It would not have been sensible to insist on separate proceedings being begun."
"21 In the light of those documents Mr McGhee QC applied to amend the Kendall Freeman action to claim in the alternative a right to light based on this deed. That would be retrospective if granted to the date of the commencement of the action. At the date of the commencement of the action of course Kendall Freeman would have no such right by the deed as it did not then exist. Notwithstanding that Mr McGhee QC cited a number of authorities (summarised in the Supreme Court Practice at paragraph 17.3.5), which showed that under the Civil Procedure Rules the Courts have allowed an amendment to introduce a cause of action arising out of facts occurring subsequent to the commencement of the proceedings. In Maridive & Oil Service (SAE) –v- CNA Insurance Co. Ltd. [2002] EWCA Civ 369 the Court of Appeal allowed such an amendment. In so doing they followed an earlier Court of Appeal decision Hendry –v- Chartsearch [1998] CLC 1, 382 where Evans LJ had said, that the modern practice was that the court had a general discretion and should not be restricted by hard and fast rules of practice or of law. In the same case, Chadwick LJ (paragraph 54) said:-
"There is no absolute rule of law or practice which precludes an amendment to rely on a cause of action which has arisen after the commencement of the proceedings in circumstances where (but for the amendment) the claim would fail. The court has a discretion whether or not to allow the amendment in such a case; a discretion which is to be exercised as justice requires. …"
22 Faced with those observations Mr Morgan QC did not feel able to oppose the amendment, not submitting that there was any prejudice nor any other disadvantage, which could not be dealt with in respect of these amendments. This was a realistic stance given the fact that the Claimants could have issued fresh proceedings based on the grant and then would be in an incontestable position of showing that they had established a right to light. I allowed the amendment given Mr Morgan QC's acceptance of these authorities, which are binding on me, although I have some difficulty in dealing with the cases in the light of the retrospective effect of the amendment. This was a point which Goulding J proceeded on in the case of Halliard Property Co. Ltd. –v- Jack Segal Ltd. [1978] 1 All ER 1219 where he declined an application to amend to rely upon a fresh ground of forfeiture (namely bankruptcy) when no notice under section 146 Law of Property Act 1925 had been served before the commencement of the proceedings. It is fair to say that the arguments proceeded on an assumption that the amendment would not be granted if such a notice was required, because of the retrospective effect of the amendment. This authority used to be in the White Book under the Rules of the Supreme Court, but has since disappeared following the CPR. It was not cited in the case to which I have made reference, but nevertheless it does seem to me that the modern procedure should not allow a technical objection to deprive the court and one of the parties of an opportunity to have a merits based decision on an issue. The objection to the amendment could only have been technicalities and would not have prevented, as I have said the Claimant bringing a fresh action based on the deed. It would be a waste of the parties' time and the court's time to require that procedural technicality to be gone through when the court is already seized of the real issue between the parties, namely the infringement of the claimants' rights."
BACKGROUND TO THE PRESENT DISPUTE
SALE OF THE PROPERTY
OTHER PAYMENTS
SUMMARY OF CLAIMS AGAINST MR AL BAHO
MR AL BAHO'S STANCE
THE CLAIM AGAINST BCP
FORM OF ORDER