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Removing the Shackles? - Bill Braithwaite QC, Head of Exchange Chambers

05/06/14. Yet another procedural decision today, but an interesting one. In a road traffic accident, the defendant in his defence denied liability and included the words "the Claimant caused the collision". The Defence did not include an explicit claim for contributory negligence, although it was obvious that it was critical of the claimant’s driving, referring to his losing control because of travelling too fast.

The defendant appealed against a decision by a district judge refusing him permission to amend his Defence in order to plead contributory negligence more fully. The defendant had applied to do so at the beginning of the trial, but permission was refused. Judgment was entered against F on a full liability basis. The district judge refused the application to amend on the ground that it should have been made in writing and supported by evidence, but did remark, foolishly not properly in the course of his or her judgment, that the defendant’s liability would have been reduced by one third had contributory negligence been pleaded.

The defendant’s appeal was heard by a retired High Court judge – not one of the specially allocated judges who have been hearing these procedural appeals. Is it too cynical to suggest that retirement has removed the shackles from the judge’s ability to do the right thing?

The judge said in terms that discipline should not be imposed for its own sake. The district judge had been told by the defendant’s counsel why the application was being made late, and there would have been nothing to gain by putting that in a witness statement. “The district judge had done his best to apply the relevant principles in the recent authorities to F's case, but in attending to the detail he had overlooked the overall picture. Insofar as he had balanced the potential prejudice to G against that to F, the exercise had yielded the wrong outcome. Justice and fairness required that the amendment should have been allowed so that the real dispute between the parties could be judged. There was no prejudice to G, no need for an adjournment, or for further delay or extra cost. The court was able to deal with the issues of causation, including those relevant to contribution on the appointed trial date.”

Bill Braithwaite QC
Head of Exchange Chambers
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