Home Information Cases Julian Roger Herbert v (1) Leonard Doyle & Anor (2008)

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Julian Roger Herbert v (1) Leonard Doyle & Anor (2008)


An amendment to a successful party's defence and counterclaim was permitted after judgment had been given: no new points or evidence were required and no substantial injustice was created for the other party.


The applicant property owners (D) applied for permission to amend their defence and counterclaim after judgment had been given. D had agreed to transfer certain car-parking spaces to the respondent developer (H) for use in his development, in return for H satisfying various other terms, including the transfer to D of another parking space, granting D leases over further property and undertaking various building works. The development was built, partly encroaching on one of D's parking spaces. H did not satisfy the other terms, but claimed a declaration that he was entitled in equity to the spaces by way of proprietary estoppel. D successfully defended the claim and counterclaimed for damages in lieu of an injunction requiring demolition of that part of the development encroaching on their land, and for a declaration that H was not entitled to the spaces unless he satisfied the other terms. That declaration was granted and damages were awarded. However, H still did not attempt to satisfy the other terms. D wished to amend their defence and counterclaim to seek a declaration that if they transferred the spaces, H would be bound to satisfy the other terms, as H was estopped from denying that he would abide by the terms of the agreement.


(1) Proprietary estoppel could only be invoked to enforce a promise to transfer a certain interest in land, Cobbe v Yeoman's Row Management Ltd (2008) UKHL 55, (2008) 1 WLR 1752 applied. D therefore had no reasonable prospect of compelling H to perform the building works by way of proprietary estoppel, but the leases and the parking space were certain interests in land, and D had a reasonable prospect of success regarding them. (2) There was jurisdiction to permit an amendment even after judgment had been given, so long as the order on which it was based had not been perfected, Charlesworth v Relay Roads Ltd (No2) (2000) 1 WLR 230 Ch D applied; however, that jurisdiction should only be exercised in exceptional circumstances, Stewart v Engel (Permission to Amend) (2000) 1 WLR 2268 CA (Civ Div) applied. The conditions in Charlesworth were satisfied. In particular, the instant case was one in which the successful party was not satisfied with the order, and no new points or evidence were called for. It was not a case in which an unsuccessful party tried to raise new points after judgment had been given against him. The obligation to grant the leases did not create a substantial injustice for H, and although obliging him to grant the parking space could create an injustice, all that was being done was allowing the amendment to include the reference to it.

Application granted in part

Chancery Division
Mark Herbert QC
Judgment date
30 September 2008

​LTL 6/11/2008 


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