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High Court allows very late amendment to statement of case due to late disclosure

The English High Court has allowed a very late application to amend a statement of case on the grounds that the other side was late in disclosing certain documents. 15 Sep 2016

The permission was given in a case between retailer Halfords and a recruitment agency, First Personnel Services. Halfords had switched to another supplier for its temporary staff in two of its distribution centres, and First Personnel Services issued a claim for the payment of invoices, and for fees relating to the transfer of staff under Transfer of Undertakings Regulations (TUPE).

First Personnel Services did not disclose information from its pay and charge system until shortly before the trial, which made it difficult for Halfords to prepare its own case in response. Halfords therefore asked to be allowed to amend its defence and counterclaim in light of the information it had belatedly received.

The judge held that the amendments should be allowed, despite the fact that they were "extensive" and the application had only been made ten days before trial, in part because First Personnel Services was "in breach of its disclosure obligations and in a significant respect", by disclosing the documents only one month before trial.

Halfords' preparation of its case had been hampered by the late disclosure, which should have been provided months earlier, particularly since First Personnel Services had used the documents in the preparation of its own witness evidence and Halfords had been expressly requesting such documents, the judge said.

First should have known that Halfords would have wanted the material in order to revisit its pleadings and that the later disclosure was given the more likely it was that the trial date would be jeopardised, he said.

While other sources of information were available, "it is clear that they were partial, difficult to identify or locate, inadequate or not capable of being relied upon satisfactorily," the judge said.

"The reason that Halfords finds itself in the position in which it finds itself is not that it failed to get on properly and timeously with the preparation of its case, but that its preparation of the case was hampered and disrupted by the late production of information which should have been provided long ago," he said.

Commercial dispute expert Faye Moore, of Pinsent Masons, the law firm behind Out-Law.com said: "While late applications to amend statements of case should be avoided wherever possible, this judgment shows that such applications are likely to be allowed where they are necessary as a result of late disclosure by the other side.  "

Dispute resolution expert Jason Kirwin, also of Pinsent Masons, said: "This decision also emphasises the importance of making an application to withhold certain documents from disclosure on the grounds of proportionality at an early stage, rather than seeking to rely on such arguments in defence of an alleged failure to disclose relevant documents."

Pinsent Masons acted for Halfords in this case.