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The EAT issues guidance on in-time amendment applications

Navid Pourghazi considers the recent decision in Gillett v Bridge 86 Ltd (UKEAT/0015/17/DM) where the EAT overturned a refusal of an in-time application to amend a claim form and provided helpful guidance on how Tribunals should deal with such applications in the future.  A copy of the judgment is available here.

Analysis

The Claimant presented a claim of ordinary unfair dismissal to the Tribunal without any legal advice.  Subsequently, she sought to amend her claim by adding complaints of automatic unfair dismissal because she had made protected disclosures, and complaints of disability discrimination.  By this point, she had received legal advice. Her application to amend the claim was in time – in the sense that the claims would have been in time had she issued fresh proceedings.  This is a common application as claimants wish to avoid paying a second set of fees. However, the Tribunal refused her application to add a whistleblowing claim for the following reasons:

  • There was insufficient connection between her original particulars of claim and the proposed amendment;
  • While the proposed claim could not be said to be “utterly hopeless”, it appeared to the judge be a weak;
  • The Claimant would not be prejudiced if the proposed amendment were refused because she would still be able to bring her claim for disability discrimination.

Tom Gillie of Cloisters represented the successful Claimant. The EAT allowed the appeal and exercised its discretion to grant her application to amend.  The following points are key:

 

  • The EAT disagreed with the analysis in Woodhouse v Hampshire Hospitals NHS Trust (UKEAT/0132/12/DM) to the extent that it suggested that there was a bar against considering the merits of the proposed claims that would be added by way of amendment (save where the proposed new claim was “obviously hopeless”).
  • The EAT stated that, whether at the initial paper stage, or at a hearing, a Tribunal must be entitled to consider whether the proposed claim has no reasonable prospects of success. If a presented claim could be struck out on that basis, it would be inconsistent and anomalous if an application to amend could not be refused for the same reason.
  • The EAT stated that it is difficult to perceive of an instance where a pessimistic view on the merits of a proposed claim, which falls short of “no reasonable prospects of success”, will provide support for the refusal of an in-time amendment application. Moreover, it would be wrong to take into account an assessment that the merits of a proposed claim were merely ‘weak’ when deciding whether to grant an in-time application to amend.
  • The fact that an amendment application is in time may not always be decisive, but “it must be a factor carrying considerable weight”. It would be “inconvenient and costly for the parties and the Tribunal to oblige a claimant to issue a fresh claim and to apply to have it managed and heard with the existing claim”.
  • A claimant should not be placed in a worse position by making a timely application to amend than if he/she had taken the alternative course of issuing a fresh claim.
  • Consequently, the fact that a claimant can pursue other claims if the amendment is refused is not a reason to conclude that there is no significant hardship or injustice if he/she is prevented from pursing distinct claims which are the subject of any application to amend.

This decision is a welcome clarification of the law in this area and will, no doubt, become a staple authority when making or responding to applications to amend. The decision is also good news for claimants, particularly while the Tribunal fees regime remains in place.

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