Case Note: SKBHCVAP2014/0027 Mark Brantley and Dwight C. Cozier

Amending a Statement of Case pursuant to Rule 20.1 of the Eastern Caribbean Civil Procedure Rules 2000 as amended (CPR)

by Dia C. Forrester and Theon Tross

 

In SKBHCVAP2014/0027 Mark Brantley and Dwight C. Cozier judgment delivered on the 27th day of August 2015 the full panel of the Court of Appeal held that in exercising its discretion with regard to an application to amend a defence, “the Court should be guided by the general principle that amendments should be made where they are necessary to ensure that the real question in controversy between the parties is determined, provided that such amendments can be made without causing injustice to the other party and can be compensated in costs. The amendment should be allowed regardless of how negligent or careless the omission from the statement of case may have been, and no matter how late the proposed amendment is…”.

Mark Brantley and Dwight C. Cozier was an appeal against the refusal of a learned master to grant Mr. Brantley leave to amend his defence.[1]  The Court of Appeal in this case addressed how the Court should apply its discretion when examining the provisions of Rule 20.1 (3) of the CPR which rule sets out the factors that the Court must have regard to when considering whether or not to grant permission to amend a statement of case at a case management conference or at any time on an application to the court.   A statement of case is defined in Rule 2 of the CPR as including a claim form, statement of claim, defence, counterclaim, ancillary claim form or defence and a reply.  Rule 20.1 (3) of the CPR provides as follows:

(3) When considering an application to amend a statement of case pursuant to Rule 20.1(2), the factors to which the court must have regard are –

(a) how promptly the applicant has applied to the court after becoming aware that the change was one which he or she wished to make;

(b) the prejudice to the applicant if the application were refused;

(c) the prejudice to the other parties if the change were permitted;

(d) whether any prejudice to any other party can be compensated by the payment of costs and or interest;

(e) whether the trial date or any likely trial date can still be met if the application is granted; and

(f) the administration of justice.

A brief account of the facts of the decision is necessary.  In 2008, Mr. Cozier filed a claim against Mr. Brantley alleging that Mr. Brantley had libelled him by republishing and reposting defamatory words about Mr. Cozier on the internet.  In January 2010, Mr. Brantley filed a Defence to Mr. Cozier’s claim where he admitted to having made some comment on the original email and pleaded fair comment.  There were several applications in relation to the substantive claim that were dealt with at case management conferences between 2008 to 2015.  Some of the rulings on the applications were disposed of by the Court of Appeal and the matter was remitted to the High Court for it to be continued with in accordance with the CPR.  The parties complied with case management orders relating to disclosure and the filing of witness statements and were given a trial date for June 2012.  Notably, that June 2012 trial date was vacated as a consequence of the interlocutory applications that were engaging the attention of the court.  In March 2014, Mr. Brantley applied to the Court for permission to amend his Defence to plead the defence of justification.  The circumstances in which the defence of justification arose are not relevant, but it will be useful to note that the application for permission to amend the Defence was submitted two years and six months subsequent to Mr. Brantley becoming aware of those circumstances.  At the time of the application to amend the Defence being filed and the hearing of that Application, no pre-trial review hearing and or trial date was set in relation to the substantive claim.

In analysing the circumstances of this case, Justice Blenman at paragraph 55, stated that there are several factors that the Court takes into consideration when exercising its discretion to amend a statement of case taking into account the prerequisites of Rule 20.1 (3) of the CPR, those are, “the justice to the parties; the legitimate expectation that the basis of a claim will not be fundamentally challenged at the last minute; the adverse effect on other litigants of lost judicial time; the stage reached in the proceedings; whether the other side can be adequately compensated in costs. There is public interest in allowing a party to deploy its real case, provided it is not irrelevant and has a real prospect of success.[2]  Further, Justice Blenman indicated that all the provisions of the overriding objective as stated in Rule 1.1 of the CPR must be also considered as “the court needs to deal with cases proportionately, taking into consideration the amount of money involved; the complexity of the issues and the financial position of the parties”.[3]

Significantly, Justice Blenman took the opportunity to weigh in on how the issue of costs must be considered when the court exercises its discretion to amend a statement of case.  When determining whether any prejudice sustained by a party can be compensated for in cost, “the question remains as to whether this is an appropriate case in which costs would be adequate given the totality of circumstances including the date of the filing of the claim, the date on which the new information became available, the date on which the judgment was rendered, and taking into account that it was three years after…  The current jurisprudence indicates that a defendant will not be prejudiced if he can be adequately compensated in costs…”. [4]  Further, Justice Blenman states that “the general rule is that in these circumstances where any potential prejudice can be compensated by an award of costs, the court should lean in favour of granting the amendment…[5].

The universal and timeless principle on whether or not to permit a statement of case to be amended as adopted by Justice Blenman is that “however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs…”.[6]

Clearly, the issue of costs is a salient and determining consideration on any application for a statement of case to be amended when considering the provisions of Rule 20.1 (3), the overriding objective and what will further what is just, in any claim.

 

Footnotes

[1] Claim No. NEVHCV2009/0180 Dwight C. Cozier v Mark Brantley and Gawain Fraites judgment dated 26th September 2014

[2] See GDAHCVAP2014/0007 George Allert (Administrator of the Estate of George Gordon Matheson, deceased) et al v Joshua Matheson et al per Justice Blenman at paragraph 54

[3] See paragraph 43 of decision

[4] See paragraph 50 of decision

[5] Ibid 4

[6] See paragraph 56 of decision

 

Authors Information

Ms. Dia C. Forrester, Daniel Brantley – Senior Associate Email: Dia.forrester@danielbrantley.com

Mr. Theon Tross, Daniel Brantley – Summer Intern

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