PracticeAmendment to pleadings - amendment resulting in contradictory statements of truth - permission to amend refused - evidence - attribution of source of hearsay evidence - procedural provision therefore no requirement that it be based only on admissible evidenceClarke (Executor of the Will of Francis Bacon) v Marlborough Fine Art (London) Ltd and Another No 2; ChD (Mr Justice Patten); 20 November 2001The claimant brought an action for breach of fiduciary duty and presumed undue influence.

He then sought to amend his claim form to include actual undue influence.

The defendants argued that the amendment should not be allowed because, among other things, the claimant would be forced to make a statement of truth under the Civil Procedure Rules 1998 (CPR), rule 22.1(2) in support of the amendment which was inconsistent with an existing statement of truth by him in support of the presumed undue influence claim.

The defendants also argued that there was no evidential basis to support the claimant's application since the witness statement in support contained evidence of the source of hearsay evidence which was inadmissible.Geoffrey Vos QC, David Foxton and Adam Robb (instructed by Freshfields Bruckhaus Deringer) for the claimant; Michael Briggs QC and Thomas Grant (instructed by Harbottle & Lewis) for the first defendant; Michael Lyndon-Stanford QC and Michael Rollason (instructed by Allen & Overy) for the second defendant.

Held, refusing the application to amend as a unified claim but permitting an amendment to enable the claimant to pursue the actual and presumed undue influence claims as alternatives and declaring that the evidential basis for the amendment was sufficient, that the court would not permit the amendment of a claim form which resulted in a claimant making contradictory statements of truth in support of a unified claim; that the naming of the source of hearsay evidence in a witness statement was not a matter of primary fact, it was simply a procedural provision requiring the deponent to identify the source of the hearsay evidence and did not require the naming of that source to be based only on admissible evidence in order to satisfy the provisions of CPR part 32.

(WLR)