Development – Joint venture – Parties obtaining planning permission for development of houses – Claimant wishing to amend pleadings to refer to other joint ventures – Judge refusing to amend particulars of claim – Whether judge misdirecting himself – Appeal allowed
The claimant and the defendants had entered into a joint venture (jv) for the development of a valuable plot of land. They had obtained planning permission to build six houses but subsequently fell out. The claimant maintained that he had a beneficial or proprietary interest in the land, alleging fraudulent misrepresentations.
At a pre-trial review, the claimant sought permission to amend his particulars of claim to include a reference to three further jvs involving the same parties and connected disclosure. The judge refused to grant permission to amend. He also directed, pursuant to CPR 3.1(2)(k), that issues in respect of the ancillary jvs should be excluded from the trial of the action.
The claimant appealed, contending that the issues raised and evidence relating to the other jvs would corroborate the evidence relating to the present proceedings.
Held: The appeal was allowed.
This was an appeal from a case-management decision that had been made in the exercise of his discretion by a judge who had an accumulated knowledge of the background and the issues that an appeal court could not match. The judge was in the best position to decide the future course of the proceedings. An appellate court should respect the judge’s decision and should not yield to the temptation to second guess the judge in a matter that was within his province.
An appeal court should not interfere with case-management decisions made by a judge who had applied the correct principles and taken account of relevant matters and omitted those that were irrelevant, unless it was satisfied that the decision was so plainly wrong that it must be regarded as falling outside the generous ambit of the discretion entrusted to the judge. It was pertinent to have in mind the fact that the judge was would be aware of the need for caution when considering whether to direct a trial of issues on assumed facts; and knew of the dangers in the course that he decided to take. The judge would appreciate that his decision might lead to delay and to wasted costs. If his approach to the evaluation of the risk were correct, it would not be appropriate to substitute this court’s view for that of the judge: Royal & Sun Alliance Insurance plc v T&N Ltd (in administration) [2002] EWCA Civ 1964 applied.
However, in the present case, the judge had misdirected himself and reached a incorrect decision so that this court was required to interfere. The judge had misdirected himself by taking account of irrelevant matters and failing to take account of relevant ones, notably the fact that, in each case, all the jvs had used nominee purchasers to acquire land and the same estate agents. The court could not agree that the other transactions bore no relevance to the present case. It would be unfair to deprive the claimant of the opportunity to cross-examine witnesses relating to other similar jvs when he was trying to make out his case in respect of the joint venture at the heart of the present litigation.
Timothy Penny was instructed by the claimant; Rupert Reed (instructed by Osbornes) appeared for the defendants.
Eileen O’Grady, barrister
