Time and again in practice one finds that simple procedural points are undecided. You look everywhere for the answer thinking, how can it be possible that there is no guidance about this? Such was the situation in Agents Mutual Limited v Moginnie James Limited, a decision of Master Matthews, where the vexing question was whether an application notice can be amended before it has been disposed of. There is no provision for doing so in the Civil Procedure Rules (CPR) dealing with ordinary applications.
The application in question was one for summary judgment. The parties and the master found nothing in CPR 24 either. It was clear that nothing in CPR 17, which deals with amendments to statements of case, helped, because applications are not statements of case. My first reaction to the question is, of course there must be a power to amend an application! But a tribunal needs to have a basis for doing so. The master found it in the court’s general powers of case management found in CPR 3.1(2)(m), which provides that the court may “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”.
He then went on to consider whether he should allow the amendment. The ultimate decision was fact based.
In many cases, the point under consideration might not matter because the applicant could simply issue a fresh application. But in the case under consideration a new application could not be issued, and certainly would not be heard, until after the conclusion of the Competition Appeal Tribunal (CAT) proceedings. This was linked to the fact that the proceedings in the Chancery Division had been stayed by the judge pending the disposal of part of the proceedings in the CAT. In light of that, he had also ordered that any summary judgment application had to be made by a certain date which had passed by the time of the intimation of the intention to amend, so the applicant could not simply issue another application. That the application as originally drafted should be issued by that date had been an agreed carve-out from the stay. Accordingly, and rightly in my view, the master decided not to allow the amendment. Whether or not that ruling hastened the overall settlement which followed it closely, is a matter for speculation.
