Analysis
The Claimant issued proceedings in October 2016 inviting the Court to pronounce against the will of the deceased dated 12 June 2007 and in favour of an earlier will dated 10 October 2006, which appointed the Claimant and one other as executors. The Defendant was the sole executor and beneficiary of the 2007 will. After the close of pleadings, directions were given and the matter listed for trial with a time estimate of 5 days, to commence on 5 November 2018.
On 6 March 2018 the Claimant invited the Defendant to consent to the deceased’s previous solicitors, Dixon Ward, being authorised to release their files. The Defendant initially refused, but later consented to an order in April 2018 that the Dixon Ward files be released. Those documents were obtained on 8 June 2018. On 13 June 2018 the Claimant put the Defendant on notice that in light of the documents obtained an amendment to plead undue influence was being considered.
By an application dated 21 June 2018 the Claimant applied for permission to amend its statement of case, to plead undue influence in relation to the 2007 will and further particulars of lack of capacity.
The defendant opposed the application, arguing it was made late and that many of the facts pleaded in support of the allegation of undue influence had been known to the Claimant for some time. It was further argued that the proposed claim did not have a real prospect of success.
Held:
- 1) The principles applicable to applications to amend are as summarised by Carr J. in Quah v Goldman Sachs International [2015] EWHC 759 (Comm) at paragraphs 36-38. The application will be refused if it is clear that the proposed amendment has no real prospect of success. Whether to allow the amendment is a matter for the discretion of the court, having regard to the overriding objective. A heavy burden lies upon the party seeking a very late amendment to show the strength of the new case and why justice requires him to be permitted to pursue it.
- 2) Whatever steps might have been taken earlier, the contents of the Dixon Ward files were only known to the parties on 8 June 2018. Although not a ‘passport’ to permission, the emergence of new evidence was likely to provide a good explanation for a very late amendment – Swain-Mason v Mills & Reeve [2011] EWCA Civ 1699.
- 3) The Court would not conduct a ‘mini-trial’ on an application to amend. This was not the type of case where the Court could be confident from reviewing the documents whether a claim was inherently implausible, and so lacked a real prospect of success. Similarly, the complaints made as to the quality of the evidence relied upon in respect of testamentary capacity were issues for the trial judge.
Application granted.
JUDGMENT MASTER TEVERSON: [1] This is an application by the Claimant, Ms Noriko Tachi, by application notice dated 21 June 2018, seeking permission to file and serve amended Particulars of Claim and to serve out of time two further witness statements. The application is made in the context of a probate claim which is scheduled …Continue reading "Tachi v Woodward [2019] WTLR 695"