Cambridge Country Club Group Ltd v Jane Myott Broome

HIS HONOUR JUDGE HODGE KC:

1. This is my extemporary judgment on two applications in a claim brought by Cambridge Country Club Group Ltd against Mrs Jane Myott Broome in her capacity as the sole executrix of the estate of her late husband, Mr John Broome, which is proceeding in the Business List of the Business and Property Courts in Manchester under claim number BL-2024-MAN-000016. There is a linked claim number BL-2024-MAN-000012 which was created in connection with the Claimant’s application for a freezing injunction against the Defendant. The claim form was issued on 14 February 2024.

2. The brief details of the claim state as follows: “The Claimants claim is against the Defendant as the executor of the Will of John Lawson Broome (deceased). The Claimant and the deceased signed a Settlement Deed and Release on 10 March 2021 whereby the Claimant agreed to receive a sum of £900,000 (defined as ‘the Settlement Sum’) from the deceased in consideration of settling any dispute in relation to the sale of a leisure park business and resort known as Camel Creek in Cornwall alongside other disputes. The deceased failed to pay the Settlement Sum.”

3. There are supporting particulars of claim which are verified by a statement of truth made by the Claimant’s solicitor, Bahman Rashidi, dated 1 February 2024. Paragraph 3 pleads that: “On 10 March 2021, the Claimant entered into a Settlement Deed and Release with the deceased whereby the Claimant agreed to receive a sum of £900,000 from the deceased in consideration of settling any dispute in relation to: (a) the sale of a leisure park business and resort known as Camel Creek in Cornwall; (b) the acquisition by Time (Cornwall) Ltd of shares in Camel Creek Capital Ltd; (c) monies paid and/or payable to the deceased pursuant to arrangements between the deceased and Camel Creek Capital Ltd and Camel Creek Ltd.” Paragraph 4 pleads that: “The deceased would be liable to pay the Settlement Sum to the Claimant upon receiving £1 million in cleared funds pursuant to terms which: (a) have been agreed between the deceased and [the two main companies]; and (b) include provision for such sum to be paid to him within three months of planning permission being granted for additional units at the site known as Camel Creek, Tredinnick, Wadebridge PL27 7RA.” Paragraph 5 pleads that: “The terms stated in paragraph 4 above were satisfied and the deceased was liable to pay the Settlement Sum to the Claimant pursuant to the Settlement Deed.” Paragraph 6 pleads that: “In breach of the terms of the Settlement Deed, the deceased failed to pay the Claimant the Settlement Sum.” Loss of the Settlement Sum is particularised in the sum of £900,000. There is also a claim for interest.

4. The issue of the claim form had been preceded by a without notice application, made by the Claimant’s solicitor, for a freezing injunction against the Defendant. That came on for hearing before HHJ Bever on 5 February 2024. No notice of the hearing had been given to the Defendant, and so she did not attend. Judge Bever found that the application failed to comply with the applicable provisions of the Civil Procedure Rules and the related Practice Direction 25A. He found that there was no reference to the Applicant offering any undertaking to pay damages to the Respondent if the court determined that it should do so; there was no evidence as to why notice of the application should not be given to the Respondent; there was no draft order attached to the application notice; and there was no clarification of the basis on which the order should be made. The judge’s order recorded that the Applicant’s solicitor confirmed that notice of the Applicant’s intention to seek an injunction had been communicated to the Respondent as long before the hearing as 13 January 2024. In light of that, it could not be said that there was any need to proceed by stealth. The order also recorded that the Applicant’s solicitor no longer sought an injunction order on a without notice basis. Having made those recordings, Judge Bever adjourned the application; and he directed that it should be relisted, on notice, on 8 February, to be heard remotely by Microsoft Teams. He abridged time for service of the application and the order; and he reserved the costs of the hearing.

5. The return date came on for hearing before HHJ Halliwell on 8 February 2024. The Claimant was represented by counsel (not the counsel who appears for the Claimant today). The Respondent appeared as a litigant in person, in the presence, and with the assistance, of her daughter, Ms Georgina Clavel. The matter was disposed of on cross-undertakings. The court directed that the Applicant should issue a claim form seeking substantive relief against the Respondent by no later than 4.00 p.m. on 15 February 2024. Paragraph 3 of the order provided that the Respondent might apply to the court at any time to vary or discharge the order, and/or be released from her undertakings, subject to first informing the Claimant’s solicitors in writing at least 48 hours in advance. The costs were reserved.

6. There was an unfortunate hiccup in the proceedings in that, whilst still acting as a litigant in person, the Defendant failed to give notice of intention to defend the claim. That led to the entry of a judgment in default against the Defendant for over £1 million. That in turn led to an application to have that default judgment set aside, which was eventually granted by HHJ Halliwell on 12 November 2024. HHJ Halliwell ordered that the costs should be costs in the case.

7. In due course, the Defendant filed and served a detailed defence to the claim which was settled by Mr Elis Gomer (of counsel), acting on her behalf on a pro bono basis.

8. There are two applications presently before the court. The first in point of time is the Claimant’s application dated 6 March 2025. That seeks permission to amend the particulars of claim, although not in terms the claim form, and also to add the Defendant’s daughter, Ms Georgina Clavel, as a co-defendant to the proceedings. That application was not supported by any witness statement. The only evidence relied upon in support of that application is that set out in box 10 of the application notice. That states that: “Permission is sought to amend the particulars of claim, a copy of which is enclosed, and to add Ms Georgina Clavel as a Defendant to the proceedings in accordance with CPR rule 19.4(1). As we have not yet been directed to file direction questionnaires, amending the particulars of claim, and adding an additional defendant, will not prejudice the defendants.”

9. That application came on for hearing before DJ Banks on 9 April 2025. It had been listed for 30 minutes, with 10 minutes judicial pre-reading. That was in accordance with the Claimant’s estimate in the notice of application. There is a dispute between the parties as to whether the Defendant only received notice of the hearing of the application dated 6 March as shortly before the hearing as 7 April. That assertion is recorded in the recitals to DJ Banks’s order.

10. The order records that the Defendant is a litigant in person and had been unable to obtain pro bono representation in time for the hearing, otherwise than for the purpose of providing a skeleton argument from Mr Gomer. DJ Banks recorded that, in light of the wholesale amendments proposed to the Claimant’s claim, the continuation and/or variation of the freezing injunction obtained by the Claimant would need to be reconsidered. He recorded that the 30 minutes time estimate for the hearing was insufficient for the matters to be properly considered. He therefore ordered that, if and in the event that the Defendant sought the variation or discharge of the freezing injunction in the event that the Claimant’s application was successful, she was, by 4.00 p.m. on 22 May, to file and serve an application notice, together with any evidence in support. He then adjourned the matter to the next available date after 28 days. He directed that it should be relisted as follows: (a) in the event that the Defendant made an application for discharge, the matter was to be relisted before a section 9 Deputy High Court Judge, with an estimated length of hearing of two hours (plus 30 minutes pre-reading); (b) in the event that the Defendant did not make such an application, the matter was to be relisted before a BPC District Judge (or Deputy), with an estimated length of hearing of one-and-a-half hours (plus 30 minutes pre-reading). He reserved the costs.

11. By a hearing notice, issued on 20 June, the matter was relisted for hearing today before me, sitting as a section 9 Deputy High Court Judge, with a time estimate of one day. That revised time estimate appears to have been the result of a referral to another of the section 9 judges for listing directions. By that time, the Defendant had indeed issued an application to set aside the freezing injunction that had been granted against her. That was issued on 21 May, and was supported by the Defendant’s third witness statement, dated 21 May 2025.

12. In short, Mrs Broome relies upon the material change in circumstance involved in the amendment application by the Claimant, which involves the wholesale abandonment of the Claimant’s original case, and the substitution of an entirely new case. She also (in paragraph 42) alleges a want of full and frank disclosure in relation to the original application for the freezing injunction. On the same day, the Defendant made her fourth witness statement, in response to the application for permission to amend.

13. As recently as 28 July, the Claimant’s solicitor, Ms Sophia Ava, made her fourth witness statement, both in opposition to the application for the discharge of the freezing injunction, and in reply to the Defendant’s opposition to the application for permission to amend and to add Ms Clavel as a co-defendant.

14. Ms Ava’s witness statement is relatively short. She first of all addresses the service of the Claimant’s application to amend on the Defendant. It is unnecessary for me to make any finding in relation to that. It is entirely clear that, even if there had been sufficient notice to the Defendant, the hearing before DJ Banks could not have proceeded on 9 April because of the inadequate time estimate that had been given for the amendment application. That was recorded in the District Judge’s order. It would also, as the District Judge noted, have been necessary to consider whether it was appropriate to continue the freezing injunction in light of the wholesale revision of the case on which the grant of that freezing injunction had been made. As I say, it is therefore unnecessary to make any finding - even if it were possible to do so - about the service of the application on the Defendant. That is because there simply would not have been sufficient available time, and the hearing before the District Judge would have had to be adjourned in any event. It seems to me quite clear that the costs reserved on that occasion should simply be treated as costs in the case.

15. In the event, it is unnecessary to consider the application to discharge the freezing injunction in any detail. The court has received detailed written skeleton arguments from Mr Samuel McNeil (of counsel) for the Claimant and from Mr Elis Gomer (also of counsel) appearing pro bono for the Defendant. Mr McNeil’s skeleton argument does not address the application to discharge the freezing injunction. Mr Gomer’s does.

16. I was told at the beginning of this hearing, attended by both Mr McNeil (who has not previously been involved in this case) and by Mr Gomer, that the application for discharge of the freezing injunction would be allowed by consent. I am entirely satisfied that that is the appropriate way of dealing with the freezing injunction.

17. First, the whole basis upon which it was founded, which was the Settlement Agreement, is no longer in play in this litigation. At two points in his skeleton argument, Mr McNeil expressly acknowledges that the Settlement Agreement is inoperative. It was conditional upon a certain payment being made. The circumstances in which it was envisaged that that payment should be made have never come about; and, as a result, that payment has never been made. There can be no claim for recovery of that payment because the condition on which it was to be paid has never been satisfied. Because the Settlement Sum has never been paid, the Settlement Agreement has never come into operative effect. It is for that reason that the Claimant seeks to fundamentally, and entirely, refocus the whole thrust of the Claimant’s claim.

18. It is also appropriate to discharge the freezing injunction because it is now apparent that there is nothing on which it can properly operate. There are no presently realisable, or distributable, assets in the estate. The Claimant had previously, and during the deceased’s lifetime, transferred the former matrimonial home to the Defendant; and she had then transferred it on to her daughter. That may have been a transaction intended to achieve some inheritance tax saving. There is no evidence at all as to that. But the fact remains that there is nothing on which the freezing injunction can operate.

19. It is entirely appropriate for the freezing injunction to be discharged for those two reasons; and both parties are in agreement about that.

20. The focus, therefore, must be on the Claimant’s application to amend the proceedings, and to add Ms Clavel as a co-defendant. The reason that her joinder is sought is in support of an allegation that, in transferring the former matrimonial home, first to the Defendant, and then on to Ms Cavel, those transfers were made in circumstances attracting the operation of section 423 of the Insolvency Act 1986 . It is said that the transfers were made with an intention of defeating the claim being made by the Claimant against Mr Broome, and now against his estate. So the court must focus upon the amendment application.

21. The amendments are both fundamental and extensive. The Settlement Agreement is referred to only in passing at paragraphs 40 and 41 of the proposed amended particulars of claim. Having pleaded the features of the Settlement Agreement, paragraph 41 pleads that: “Neither Mr Broome nor his estate has paid the Settlement Sum, or any of it.” That may be because no-one has paid the sums due to Mr Broome. That is said not to affect the legal position, however, which is that, by reason of the non-payment by Mr Broome of the Settlement Sum (which was an express condition precedent to any settlement under the Settlement Agreement), no settlement of the dispute, or of any claim arising from the underlying facts, has taken place. Thus, the Settlement Agreement on which the existing claim is founded really passes out of the picture.

22. The amended particulars of claim extend to some 61 paragraphs, and some 19 pages. They are settled by counsel other than Mr McNeil. They begin with the prefatory observation that: “These amended particulars of claim replace the Claimant’s original particulars of claim in their entirety. The Second Defendant has also been added to these proceedings by this amendment and in accordance with CPR rule 19.4(1).”

23. After introducing the parties, there is a summary of the claim at paragraphs 4 through to 7. These plead as follows: “4. Mr Broome engaged the Claimant (then under its previous name of Grosvenor Parks Ltd) to provide the service of introducing him to potential purchasers of Camel, in exchange for which Mr Broome agreed to pay the Claimant 50% of funds received on the sale.

5. The Claimant achieved an introduction to a purchaser from its network of contacts, and Camel (or rather its parent holding company) was duly sold. Mr Broome received £1,000,000 by way of proceeds of sale, entitling the Claimant to £500,000. That sum has never been paid, however, and the Claimant seeks to recover it by this claim.

6. In addition, the claimant seeks to recover 50% of any further sums paid or payable to Mr Broome by way of the sale proceeds (the Claimant believes and avers that such sums have been paid or will be paid in the future). The Claimant further seeks such accounts or enquiries as are necessary to identify any such sums that are paid or will be paid.

7. Further, Mr Broome’s estate has no assets (other than a theoretical right to be paid a debt by a bankrupt third party). However, in May 2020, a period of only a few months after Mr Broome’s liability to the Claimant crystallised and at a time when the Claimant was pressing for payment, Mr Broome inexplicably transferred his share of the ownership of the residential property in which he and Mrs Broome - I think it should say “lived” - to Mrs Broome. Later, Mrs Broome in turn transferred the entire ownership of the property to Ms Clavel. On 9 June 2023, a month before Mr Broome’s death, Mrs Broome transferred ownership of the property to Mrs Clavel. The Claimant alleges that one or both of these transactions was entered into for the purpose of thwarting the Claimant’s ability to enforce a judgment debt against Mr Broome. Accordingly, the Claimant seeks such order as the court thinks fit to restore the position under s. 423 Insolvency Act 1986 .” The amended particulars of claim then go on to plead the case in support of that.

24. In his written skeleton argument in support of the application, Mr McNeil asserts that the parties initially began this claim in the mistaken belief that they were bound by the March 2021 Settlement Agreement compromising the Claimant’s claims. At that time, the Defendant was unrepresented. In the course of the proceedings, and subsequent to the Claimant finding specialist representation, it has become clear that the 10 March 2021 Settlement Agreement did not settle the dispute. The Claimant therefore seeks an amendment to enable the parties to litigate the substantive dispute, rather than the inoperative 10 March 2021 Settlement Agreement. The Claimant also seeks to add Ms Clavel as a defendant for the purposes of the Claimant’s s. 423 Insolvency Act claim.

25. Mr McNeil refers me to the summary of the principles relevant to an application for amendment set out by O’Farrell J in the case of The Front Door (UK) Ltd v The Lower Mill Estate Ltd [2021] EWHC 2324 (TCC) .

26. First, an application to amend will be refused if it is clear that the proposed amendment has no real prospect of success. The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success. A ‘realistic’ claim is one that carries some degree of conviction, i.e., one that is more than merely arguable. Second, when deciding whether to grant permission to amend, the court must exercise its discretion having regard to the overriding objective. Third, amendment applications always involve the court in striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party, and other litigants in general, if the amendment is permitted. Fourth, the court will have regard to the desirability of determining the real dispute between the parties, but it must also deal with the case justly, and at proportionate cost, including saving expense, ensuring that the case is dealt with expeditiously and fairly, and giving it no more than a fair share of the court’s limited resources.

27. Mr McNeil also makes reference to observations by Marcus Smith J in the case of High Commissioner for Pakistan in the UK v National Westminster Bank Plc [2018] EWHC 3715 (Ch) at paragraph 26. These are to the effect that: “In an ordinary case, a court will proceed on the basis that, for the purposes of an application to amend, the factual statements in the draft pleading are assumed to be true, and that the arguability or otherwise of the plea is determined on the basis of that assumption.”

28. In the course of his oral submissions, Mr McNeil also took me to paragraphs 27 and 28 of Marcus Smith J’s judgment in order to emphasise the serious nature of the amendments sought to be introduced in that case. They involved assertions of dishonesty, and also of acting with unclean hands. Mr McNeil further referred me to observations in the case of Re Worldwide Foods (Birmingham) Ltd [2022] EWHC 2325 (Ch) made by HHJ Halliwell at paragraphs 12 through to 14.

29. I do not derive any real assistance from those latter observations. That case was very different from the present. As Judge Halliwell observed, at paragraph 1 of his judgment, the court had by then reached Day 34 of the trial of preliminary issues in respect of five separate sets of proceedings. That is very different from the relatively early stage at which the present amendments are being sought in the present litigation.

30. Mr McNeil submits that the draft amended particulars of claim plainly exceed the threshold of having a real prospect of success. He says that the Claimant seeks to advance a clear claim against the Defendant, representing her late husband’s estate, in contract, with an alternative claim in restitution. The Claimant also seeks to pursue a claim against the proposed Second Defendant under s. 423 of the Insolvency Act 1986 .

31. Whilst the parties initially litigated under the mistaken understanding that they were bound by the terms of the March 2021 Settlement Agreement, during the course of this litigation that understanding has come to be perceived to be incorrect. Given the desirability of determining the real dispute between the parties, the Claimant should be permitted to advance the claim formulated in the draft amended particulars of claim.

32. Mr McNeil says that such an outcome is consistent with the overriding objective: it will prevent duplication of work, it will avoid waste of court time, and it will avoid satellite litigation. He says that such reasoning applies equally to the addition of Ms Clavel as a party. That addition is desirable to enable the court to resolve all the matters in dispute in the proceedings. Whilst acknowledging that the proposed amendment is late (insofar as it could have been advanced sooner), that fact has not jeopardised any trial timetable. He says that lateness should not be a relevant factor, still less a determinative factor, in this application.

33. At the outset of this hearing, I indicated to both counsel that one of the alternatives I was considering was refusing permission to amend and leaving the Claimant free to issue fresh proceedings. On the basis of the proposed amended case, there would appear to be no limitation bar to such a course. The proposed amended case pleads that the liability of the late Mr Broome crystalised on payment to him of a sum of some £1 million, or slightly less, in December 2019. Any claim founded upon the crystallisation of that liability would therefore not be statute barred.

34. Mr McNeil was able to address that indication during the course of his oral submissions. He said that the course of leaving the Claimant to issue a fresh claim would not be desirable in view of the expenditure of court time that this litigation has already incurred; and that the most efficient way of proceeding would be to get this claim put on the correct footing. He acknowledged that my proposal was a possible outcome; but he said that it would not be the most efficient one.

35. This is a case where Mr McNeil says that the parties began the case under a common misapprehension. The conditional nature of the 2021 Settlement Agreement had not been raised, or appreciated, earlier. He says that essentially the amended case involves the same underlying subject matter. The proposed amendments are highly proximate to the subject-matter of the original claim. The overriding objective requires the court to consider what is the most efficient way of proceeding in terms of court time. The nature of the allegations points to a swift resolution of the dispute. Further time and expenditure will be wasted if the Claimant has to start all over again. In the course of his short reply, Mr McNeil emphasised that the court should take what is pleaded as factually correct.

36. For the Defendant, Mr Gomer opposes the amendment application. He emphasises that the proposed amended claim is significantly different to the existing claim, and it relies on completely different facts. The only part of the factual matrix common to both statements of case is at paragraphs 40 and 41 of the proposed amendment. This, significantly, concedes that the terms of the Settlement Agreement were not, and never have been, satisfied. He describes the proposed amended particulars of claim as an immensely more complex claim, which relies on a bewildering jumble of purported oral agreements, unevidenced written agreements, and other matters, to provide a coherent fall-back position for the Claimant. He says that all of this is entirely new to the Defendant. It has never been set out in correspondence, nor has it been buttressed with any evidence to support the Claimant’s position.

37. He says that the following points are key, by reference to the observations of Nicklin J at paragraph 140 of his judgment in Amersi v Leslie [2023] EWHC 1368 (KB). First, the Claimant has produced no evidence of any of the alleged agreements pleaded in the body of the amended particulars of claim. That is said to be important because the pivotal point that the amended claim turns upon is the contention that: (1) the Claimant entered into some form of agreement with the deceased in June 2018 that it would be entitled to 50% of the sale proceeds of the Camel Creek development through various holding companies and structures; (2) the deceased became entitled to £1,000,000 as a result of that sale; third, (3) and consequently, the Claimant was entitled to half that sum; and (4) this was the payment made by Mr Bull on 13 December 2019.

38. Mr Gomer identifies a number of problems with that analysis at paragraph 23 of his written skeleton. He says that, given the nature and extent of the amendments sought by the amended particulars of claim, one might have expected the Claimant to have adduced detailed evidence in support of the amendments, and their arguability. He observes that the full extent of the evidence in support is the Claimant’s application notice. The sole matter that the Claimant prays in aid is that: “As we have not yet been directed to file direction questionnaires, amending the particulars of claim and adding an additional defendant will not prejudice the defendants”. That is said to be hopeless. It is for the Claimant to establish that permission should be given for the amendments, and that the amendments are arguable. There is no basis upon which, so Mr Gomer says, the court can properly find that they are arguable, based upon the application as presented. To adopt Nicklin J’s formulation in Amersi , they are “implausible, self-contradictory, and not supported by contemporaneous documentation.”

39. During the course of his oral submissions, Mr Gomer referred me to a witness statement from a Mr Bull, which is relied upon by the Claimant to support its case that a sum in the order of £1,000,000 was paid in December 2019 to Mr Broome. Mr Gomer submits that that witness statement in itself raises more questions than it answers. He elaborated upon that submission orally before me.

40. Mr Gomer’s written submissions do not address the most recent witness statement from Ms Ava. I have already mentioned that witness statement in connection with the evidence it gives about the service of the application on the Defendant. MR GOMER: If I may, my Lord - My skeleton argument does refer to that witness statement at paragraph 23(d). JUDGE HODGE:

41. Mr Gomer points out that that is addressed in his skeleton argument at paragraph 23(d). The relevant section, responding to the Defendant’s third witness statement, is at paragraphs 12 through to 14. What Ms Ava says is that a payment was made by Mr Robert Bull, via Birketts LLP, on the date in question. (Mr Gomer observes that Birketts LLP were in fact acting for Mr Bull and not for Mr Broome.) It explains that Birketts provided various undertakings to others. Ms Ava says that the Claimant will be requesting disclosure of the account to which the payment was made. Should the Defendant refuse to provide this information, the Claimant will apply to the court for an order requiring Birketts to disclose it. The witness statement does not explain how the Defendant, who was not the party, or a representative of the party, instructing Birketts, could require Birketts to disclose such information. Ms Ava goes on to say that the Claimant denies what is said at paragraph 18 of the Defendant’s third witness statement. She says that the £1 ,000,000 payment was made by Mr Bull, and not by Mr Broome, or any other party. She also refers to the recording of a meeting between the Claimant’s legal representatives and the Defendant in person which had taken place shortly before the return date of the injunction application. None of that really addresses the points made by Mr Gomer.

42. He makes the point in his written skeleton that it is not particularly satisfactory that the Claimant’s key witness should be a bankrupt businessman, who was involved in a dispute with the deceased at the time of his bankruptcy, and whose insolvency means that he will escape paying a very substantial sum to the deceased’s estate.

43. As I have already mentioned, in the course of his oral submissions, Mr Gomer drew the court’s attention to the reasons why Mr Bull’s statement raises more questions than it answers. In particular, it does not clarify what the payment made through Birketts was for, and why Mr Bull was asserting that the Claimant should be entitled to all of the £1,000,000 when the agreement relied upon by the Claimant would merely entitle it to half that amount. It also does not explain why Birketts should have made payment to Mr Broome, rather than making any payment directly to the Claimant if any sum was due to it.

44. Mr Gomer submits that the amendment application should be dismissed in its entirety. His fallback position is that all aspects of the proposed s. 423 claim should be disallowed; and that any permitted amendment should be on stringent terms as to costs. He says that that would reflect the substance of the matter. What the Claimant is seeking to achieve by its amendment application is effectively to discontinue the present claim and to start afresh.

45. In the course of his oral submissions, Mr Gomer submitted that the right approach is for the court to treat the present application as an effective discontinuation of the claim, and to require the claimant to start afresh with a new claim. He says that there is no continuity, and no commonality, between the original, and the amended, claims; and that the application should be rejected, essentially for three reasons.

46. First, it involves a complete re-writing of the existing claim in its entirety, as a result of a candid acknowledgement on the part of the Claimant that its existing claim has no prospects of success.

47. Second, the court should be concerned that any proposed amendment should be seriously arguable. Any proposed amendment must be plausible on its face. It is usually necessary to buttress any amendment with supporting evidence, and there is no such evidence here. All the court has is an application notice, with one imprecise sentence simply pointing to the stage which the litigation has presently reached. That is insufficient to justify both the nature, and the level, of the amendments sought in the present case.

48. Third, this is effectively a restart from scratch. There is nothing to prevent the Claimant from issuing a fresh claim form tomorrow. By seeking to amend, the Claimant is effectively attempting to avoid the inevitable costs consequences of the discontinuance, or the dismissal, of its claim; and is seeking to avoid incurring any fresh court fee.

49. Mr Gomer emphasised that the Defendant had been in no way responsible for the nature of the claim brought against her. He also emphasised that the amendments sought plead facts which directly contradict the existing case. He questions how any solicitor could properly have verified the existing particulars of claim, which assert, in paragraph 5, that the terms of the Settlement Agreement had been satisfied. If there is a fresh start, the Claimant can plead its case in no way hampered by the vestigial remains of the existing claim form and particulars of claim. He emphasises that there is no evidence of any relevant payment, other than the pleading itself. The amendments sought to be made should be buttressed by evidence, explaining why the amendments are necessary and sustainable. Here, there is none of that.

50. Those were the competing submissions.

51. I have, of course, to approach this case by reference to the overriding objective of dealing with the case justly, and at proportionate cost. I have to ensure that the parties are on an equal footing, and can participate fully in the proceedings. I have to save expense, and deal with the case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party. I have to ensure that it is dealt with expeditiously and fairly, allotting to it an appropriate share of the court’s resources, whilst taking into account the need to allot resources to other cases. There is also the need to enforce compliance with rules, practice directions and orders. I bear in mind, also, the court’s duty to manage cases as set out in CPR 1.4, and that active case management includes, by CPR 1.4(2)(i), “dealing with as many aspects of the case as it can on the same occasion” .

52. In addition to the principles set out in the authorities to which counsel have referred me, I have also had regard to the commentary on CPR Part 17 at paragraphs 17.3.5 and 17.3.6 of the current (2025) edition of Volume 1 of Civil Procedure .

53. Paragraph 17.3.5 makes the point that the court has a broad discretionary power to grant permission to amend. The applicable principles are well established, and have been summarised in many reported judgments. Reference is made, as Mr Gomer has already made, to paragraphs 140 to 142 of the judgment of Nicklin J in Amersi v Leslie , summarising the applicable principles. These include: (i) Amendments sought to be made to a statement of case must contain sufficient detail to enable the other party, and the court, to understand the case that is being advanced; and they must disclose reasonable grounds upon which to bring or defend the claim. (ii) The court is entitled to reject a version of the facts which is implausible, self-contradictory, or not supported by the contemporaneous documents. It is appropriate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action or defence relied upon.

54. The opening sub-paragraph of paragraph 17.3.6 emphasises that a proposed amendment must be arguable, carry a degree of conviction, be coherent, properly particularised, and supported by evidence that establishes a factual basis for the allegation.

55. I note that the first supplement to the 2025 edition also emphasises, in relation to the need to show some prospects of success, that whilst the evidence, and any commentary upon such evidence, produced in support of an amendment application, may well inform the court as to real prospects of success, it remains essential that the proposed amendment itself is sufficiently clear and coherent.

56. Here, I am concerned that parts of these proposed amendments are lacking in clarity and coherence. I am also concerned that they are lacking, in certain respects, a factual basis for the allegations contained within them. That, of itself, would not lead me to refuse to permit the amendments. But those considerations feed into the real reason why I consider these amendments should be refused.

57. The amendments effectively abandon the existing case, and substitute an entirely new one. There is no explanation as to how the presently pleaded case ever came to be advanced, and verified by a statement of truth from the Claimant’s solicitor.

58. Putting that on one side, however, and just looking at the claim form - and I observe that there is no application before the court to amend that - the claim form is presently directed solely to the Defendant in her representative capacity. It would need to be amended to include a claim against her under s. 423 in her personal capacity. The presently formulated claim form refers exclusively to the March 2021 Settlement Deed and release. That is no longer relied upon in any respect. The claim form would also need to be amended to add the Defendant’s daughter as a co-defendant. Given the nature and extent of those amendments, the claim form is effectively being torn up, and replaced with something completely different.

59. Precisely the same applies to the present particulars of claim, as is made clear by the preface to the proposed amended particulars of claim, which states, in terms, that they “replace the Claimant’s original particulars of claim in their entirety” . That means that the existing defence would need to be replaced in its entirety.

60. Against that background, it seems to me that the better course is to accept the reality of the position, and to acknowledge that the existing claim is no longer capable of being maintained, and should be dismissed, if it is not discontinued. That will attract costs consequences. But the reality is that all of the costs incurred in this case to date have been wasted. The parties must start again with a clean sheet. In my judgment, that is better done by the abandonment of the existing claim, and the issue of a fresh one.

61. That course will carry with it collateral advantages. With any new claim form and particulars of claim, the Claimant will be required to give initial disclosure in accordance with paragraph 5 of Practice Direction 57AD. The new particulars of claim will need to be accompanied by copies of the key documents on which the Claimant relies, expressly or otherwise, in support of its claims advanced in the new statement of case, and also the key documents that are necessary to enable the other parties to understand the claim they have to meet.

62. In summary, given the abandonment of the existing claim, the need to amend entirely the existing claim form and particulars of claim, and the need to add an entirely new party, in my judgment, the appropriate course is for the Claimant to start again. That is bolstered by the criticisms of the existing proposed particulars of claim, and the lack of supporting evidence for them, which may, to some extent, be addressed by initial disclosure.

63. I am satisfied that that course is consistent with the overriding objective. Mr McNeil repeatedly submitted that the most efficient way to get the claim on the right footing, and to save court time, would be to permit the Claimant to rely on the proposed amended particulars of claim. In my judgment, the more expeditious course would be to abandon the existing proceedings entirely, and for the Claimant to start afresh.

64. For those reasons, I dismiss the application to amend the particulars of claim. That concludes this extemporary judgment; and so we move on now, I think, to issues of costs. * * * * * * * * * * * * * MR GOMER: My Lord, I am mindful of the hour. I do not know if your Lordship would wish me to proceed straight to costs, which I am perfectly happy to do. JUDGE HODGE: Well, presumably both of you would prefer to get back to London. MR McNEIL: Correct, my Lord, if given the option. MR GOMER: I will not be going back to London, but I take the point, my Lord. JUDGE HODGE: Yes. MR GOMER: One point concerning the order that I should address, my Lord, is does your Lordship’s order go any further than dismissing the application? In other words, is there any dismissal of the claim, or is that a matter that is left to the…? JUDGE HODGE: Well, it seems to me, applying my powers of active case management - to which I made reference in the course of my judgment - including dealing with as many issues on the same occasion as possible, that the sensible course would be simply to dismiss the claim. Do you have any observations on that? MR McNEIL: My Lord, I do not have any instructions as to that point, and so I will not be of very much assistance. But it certainly does seem a sensible course of action in the circumstances; and there is nothing I could say against it, if that assists. JUDGE HODGE: Well, then, I think that I should dismiss the claim as well as the application. MR GOMER: I am grateful. JUDGE HODGE: And of course, you have already agreed that I should discharge the existing freezing injunction. MR GOMER: Yes. JUDGE HODGE: I think there should be a single order dealing with all aspects. MR GOMER: Indeed. Again, just for good order, should the order record or, rather, be arranged so that the injunction is dismissed by consent and the order then goes on to…? JUDGE HODGE: You are consenting to…? MR McNEIL: Exactly, your Honour. JUDGE HODGE: Yes. Then I think it should, and then go on to be a non-consent order. Yes. MR GOMER: Indeed. ( Discussion re pro bono costs order ) - - - - - - - - - - - (This Judgment has been approved by HHJ Hodge KC.) Digital Transcription by Marten Walsh Cherer Ltd., 2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP. Telephone No: 020 7067 2900. DX 410 LDE Email: [email protected] Web: www.martenwalshcherer.com