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England and Wales High Court (Technology and Construction Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Milton Keynes v Viridor (Community Recycling MK) Ltd [2016] EWHC 2764 (TCC) (03 November 2016) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2016/2764.html Cite as: [2016] EWHC 2764 (TCC) |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE COUNCIL OF THE BOROUGH OF MILTON KEYNES |
Claimant |
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- and - |
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VIRIDOR (COMMUNITY RECYCLING MK) LIMITED |
Defendant |
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Michael Davie QC (instructed by Ashfords LLP) for the Defendant
Hearing date: 28 October 2016
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Crown Copyright ©
Mr Justice Coulson:
1. INTRODUCTION
2. BACKGROUND
3. THE AMENDMENTS INVOLVING VWML
"(2) The court may order a person to be added as a new party if–
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue."
"Rectification is an equitable remedy. The court may refuse it if it thinks fit to do so. This may be because an innocent third party has acquired rights or because the party seeking rectification has affirmed, that is, accepted that he is bound by, the unrectified agreement knowing that it did not reflect the parties' agreement."
In similar vein, Mr Davie also referred me to passages in chapters 6 and 7 of Rectification by David Hodge QC, 2nd Edition, and chapter 6 in Spry's Equitable Remedies, 9th Edition.
"(a) The lateness by which an amendment is produced is a relative concept (Hague Plant Ltd v Hague and others [2014] EWCA Civ 1609). An amendment is late if it could have been advanced earlier, or involves the duplication of cost and effort, or if it requires the resisting party to revisit any of the significant steps in the litigation (such as disclosure or the provision of witness statements and expert's reports) which have been completed by the time of the amendment.
(b) An amendment can be regarded as 'very late' if permission to amend threatens the trial date (Swain-Mason and others v Mills and Reeve LLP [2011] EWCA Civ 14) even if the application is made some months before the trial is due to start. Parties have a legitimate expectation that trial dates will be met and not adjourned without good reason (Brown v Innovatrone PLC [2011] EWHC 3221 (Comm)).
(c) The history of the amendment, together with an explanation for its lateness, is a matter for the amending party and is an important factor in the necessary balancing exercise (Brown; Wani LLP v Royal Bank of Scotland PLC [2015] EWHC 1181 (Ch)). In essence, there must be a good reason for the delay (Brown).
(d) The particularity and/or clarity of the proposed amendment then has to be considered, because different considerations may well apply to amendments which are not tightly-drawn or focused (Swain Mason; Hague Plant; Wani).
(e) The prejudice to the resisting parties if the amendments are allowed will incorporate, at one end of the spectrum, the simple fact of being 'mucked around' (Worldwide Corporation Ltd v GPT Ltd and another [1998] WL 1120764) to the disruption of and additional pressure on their lawyers in the run-up to trial (Bourke and another v Favre and another [2015] EWHC 277 (Ch)) and the duplication of cost and effort (Hague Plant) at the other. If allowing the amendments would necessitate the adjournment of the trial, that may be an overwhelming reason to refuse the amendments (Swain Mason)."
4. PARAGRAPH 33: LACHES
5. PARAGRAPHS 13, 13A, 14 AND 34: OPERATION IN PRACTICE/ ACQUIESCENCE