MARK EDWARD AARONS & ORS v BROCKET HALL (JERSEY) LTD & ANOR (2018)
QBD (Merc) (Moulder J) 12/01/2018
DAMAGES – CONTRACTS – CIVIL PROCEDURE
AMENDMENTS : BREACH OF CONTRACT : EXEMPLARY DAMAGES
Members of a golf club suing its owners for breach of contract in respect of their life memberships were not allowed to amend their particulars to claim exemplary damages. The possibility that the law might develop to allow exemplary damages in contractual claims did not equal a real prospect of success.
The claimants applied to amend their particulars to claim exemplary damages in their claim concerning their life memberships of a golf club belonging to the defendants.
HELD: The test was whether the claim sought by the amendment had a real prospect of success. The claimants argued that the facts were already in issue, namely the allegation that the defendants had refused them access to the golf club. It was rare for exemplary damages to be allowed in a contractual as opposed to tortious claim, Addis v Gramophone Co Ltd  A.C. 488 (http://www.lawtel.com/MyLawtel/Documents/AC1745946) followed. Such damages had been awarded by the Supreme Court of Canada, in Royal Bank of Canada v Got & Associates Electric Ltd  3 S.C.R. 408. In England and Wales, the Supreme Court would have to confront the issue of whether to allow exemplary damages in a breach of contract case. The problem for the claimants was as stated in the White Book 17.3.6, namely that the possibility that the law might develop did not equal a real prospect of success. The amendment would not be allowed.
For the claimants: Robert Hantusch
For the defendants: David Cavender QC