BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> De Crittenden v Estate of Bayliss (Deceased) & Anor [2005] EWCA Civ 547 (25 April 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/547.html Cite as: [2005] EWCA Civ 547 |
[New search] [Printable RTF version] [Help]
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
BIRMINGHAM DISTRICT REGISTRY
(HER HONOUR JUDGE KIRKHAM
(sitting as a deputy judge of the High Court))
Strand London, WC2 |
||
B e f o r e :
____________________
ROBIN DE CRITTENDEN | Claimant/Applicant | |
-v- | ||
(1) THE ESTATE OF CHARLES ALBERT BAYLISS (DECEASED) | ||
(2) LESLEY ANNE BAYLISS | Defendants/Respondents |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented
____________________
Crown Copyright ©
"19. I reject that submission on behalf of the Claimant. Given the pleading, (that is, the acceptance by the Defendants of the Claimant's case on the purchase of 25 Carlton Mews) it does not appear necessary for them to call the solicitors or Mrs Worrall. In my judgment it would be wrong to prevent the Defendants from calling such evidence. It would, therefore, be unfair to permit the amendment without permitting the Defendants to deal with the evidence on this point.
20. This is a case which has been running now for some two years. It appears from the submissions by both Mr Clegg and Mr Morgan that neither party would wish to see the case adjourned. It would, in my judgment, be very undesirable for this case to be adjourned and for the trial not to proceed. As I say, this matter has been running on for some two years now. There have been lengthy exchanges between the parties, from the material which I have seen, and many interlocutory applications and it seems to me it is right that the matter should be disposed of now if it is possible fairly to do so.
21. In circumstances where the Defendants are unable to deal properly with such a late amendment and where there is no such good reason why the amendment has been made so late, in my judgment the court should refuse the application in relation to the amendment to paragraph 14 of the particulars of claim."
"28. The Cranes [that is a reference to the items of plant in question] were not part of the security given to Lloyds by Elston or Mr Bayliss. Both were, therefore, always free to deal with them. After the settlement they remained in a position where they were entitled to sell them. That position is, in my judgment, clear from the documents to which I have been taken with such care by both counsel."
"29. I am not persuaded by Mr Clegg's submission that exploration of the issue with the parties or other witnesses might illuminate the question. In my judgment it is clear that the Claimant has no real prospect of succeeding in proving his case as set out in the amendments which he now proposes. To allow the amendment than would result in a slightly lengthier trial than we are otherwise facing. Where an issue has no real prospect of success, the court should not require the parties to spend time unnecessarily dealing with it."
"At the latest by [the] May 2000 date, [the applicant] was aware of material facts relevant to that issue. [The applicant] had knowledge of the possibility of bringing a claim for breach of fiduciary duty and the knowledge of the possibility of claiming to be able to trace into a property if not before the commencement of the original action then certainly by May 2000 at the latest. He had the benefit of legal advice and of legal aid. His legal advisors could have advised him in relation to the nature of his relationship with Mr Bayliss and the question of [the] existence of a fiduciary duty. The action [that is of course the first action] did not come on for trial until February 2001. [The applicant] could - and in my judgment should - have applied in the original action for permission to amend his claim to include his fiduciary duty and tracing claims."
ORDER: Application for permission to appeal the order dated 17 January 2005 granted; application for permission to appeal against the judge's refusal to allow him to make the proposed amendment to paragraph 14 of the Particulars of Claim adjourned, to be heard at the same time as the substantive appeal, with the appeal on this issue to follow should permission be granted; permission to appeal against the judge's refusal to allow the re-amendments relating to the items of plant is refused; the constitution of the court to hear this appeal be a three-judge court, one of whom may be a High Court judge, with a provisional time estimate of one day.