Pleadings - amendment - admission in course of without prejudice discussions inconsistent with prior affidavit - not within 'unambiguous impropriety' exception to without prejudice rule

Savings & Investment Bank Ltd (in liquidation) v Fincken (No 2): CA (Lords Justice Rix and Lord Carnwath): 14 November 2003

The claimant sought leave to amend its particulars of claim shortly before trial as the result of an admission which the defendant was said to have made in the course of a without prejudice meeting between the parties.

The judge found that the admission fell within a recognised exception to the doctrine of without prejudice privilege known as the 'unambiguous impropriety' exception, thereby losing the protection of the without prejudice rule, and he allowed the subject matter of the admission to be pleaded by way of amendment.

The claimant appealed.

Francis Tregear QC (RadcliffesLeBrasseur) for the defendant; Elizabeth Gloster QC and David Ashton (Kendall Freeman) for the bank.

Held, allowing the appeal, although an exception to the without prejudice rule existed to cover cases of unambiguous impropriety, in view of the public interest in encouraging parties to speak frankly to one another in aid of reaching a settlement the exception was not to be applied too readily; that, although the defendant had submitted no evidence on the issue, so that the evidence against him had gone unchallenged.

The absence of challenge was not the same thing as an unequivocal or unambiguous impropriety; that unless the privilege afforded to without prejudice discussions had been abused on the occasion when it was exercised, the public interest in favour of privilege prevailed over the public interest in the discouragement of perjury; and that, in the circumstances, it was commensurate with the overriding objective that the application for amendment should fail.

County court - small claims track - district judge refusing corporate party permission for lay representation at trial - rules of court entitling company to lay representation

Avinue Ltd v Sunrule Ltd: CA (Lady Justice Arden and Lord Justice Dyson): 26 November 2003

The claimant brought a small claim against the defendant company in a county court.

The district judge refused to permit B, a lay representative, to represent the company at the hearing on the ground that he was not an officer or an employee of the company.

In the event a director, D, who was Greek and who did not have a good command of English, represented the company at trial.

The district judge gave judgment for the claimant and the company appealed.

B sought permission to represent the company's on the appeal, having become a director of the company for that purpose, but the judge refused permission, holding that the directorship was a ruse.

The judge dismissed the appeal.

The company applied for permission to appeal, seeking a retrial, on the grounds that B should have been allowed to act as its lay representative at the trial and that the trial was unfair.

Mr John Boyd, lay representative, for the company; Roy Burgess (instructed by Marguerite Comber, Lytham St Annes) for the claimant.

Held, giving permission, allowing the appeal and ordering a new trial, that under CPR rule 39.6, an employee would normally require the court's permission to represent a company at trial but CPR rule 27.2(1)(h) disapplied that rule in small claims track cases in county courts; that on a proper construction of CPR rule 27.2 and para 3 of the Practice Direction supplementing CPR part 27, a corporate party was entitled, as of right, to be represented by a lay representative at the trial of a small claim in a county court, whether or not the representative was an officer or an employee of the company; that the district judge had therefore erred in refusing the company permission to be so represented; and that accordingly, the trial had been unfair.