United Bermuda Party MP Maxwell Burgess yesterday failed in a last minute attempt to change his defence in a civil case in which he is being sued for allegedly breaking a deal to sell a house to a young couple.

In pleadings before Supreme Court this week, Mr. Burgess did not contest there was a verbal agreement to sell the house in Longridge Pass, Devonshire, to Dawn and Amon Brown for $265,000.

But on Tuesday morning, his lawyer Llewellyn Peniston tried to amend the pleadings to argue there was no enforceable agreement for the Browns to buy the house because it was not in writing.

Following objections from the Browns' lawyer Kieron Unwin that Mr. Burgess had tried to change his case after hearing evidence from Mrs. Brown on Monday, Assistant Justice Philip Storr yesterday kicked out the request to amend the pleadings.

Mr. Justice Storr had earlier said that to grant the amendment would fundamentally alter the case and lead to a retrial.

Because the case was held up for one and a half days to hear the application, the allotted time for the trial ended yesterday and it will need to be rescheduled later.

In a further twist last night, Mr. Peniston said Mr. Burgess had instructed him to appeal the ruling and to ask that the case be put on hold until the Court of Appeal has decided on when a defendant can change his pleadings.

The Browns, who still live in the disputed house, say Mr. Burgess promised to provide a ten percent mortgage for them in 1999 to buy the house, so that they could get a 90 percent mortgage from Bermuda Housing Corporation (BHC).

They also signed a sales agreement to buy the house, but Mr. Burgess did not sign it. The Browns say the deal fell through when Mr. Burgess failed to write a letter to BHC confirming he would provide the deposit.

Mr. Burgess, the Opposition Whip in the House of Assembly, sold the house to his nephew Jamal Burgess, who says he is the legitimate owner of the property.

The Browns are also suing Jamal Burgess, claiming he had "constructive notice" - meaning he should have made proper enquiries about the status of the house before proceeding to buy.

Mr. Peniston - who was roasted by Mr. Justice Storr on Tuesday for being late, discourteous, a failing to have his case properly prepared - argued yesterday that it only came to him "at one minute to midnight" that the Browns were arguing there was an oral agreement to sell, and he felt bound to change the defence.

He said the judge could delay the case and award legal costs to the Browns.

Mr. Peniston said there was legal authority for a defendant amending his pleadings at an early stage in a trial and it was in the interests of justice that all the facts were heard.

Mr. Justice Storr said: "But it is a totally and completely different case. If I accede to your request we would have to start again from scratch.

"It could be three, four, five, six months that this is hanging over their heads. Can that properly be compensated by the award of costs?

"At the end of the day they may find themselves homeless and they may have that worry. Do you say there is no prejudice?"

Mr. Peniston replied: "If there is prejudice, there is prejudice to both sides."

Last night, Mr. Peniston told The Royal Gazette: "I have been instructed to appeal the ruling on when pleadings can be changed at an early stage to enable the judge to have all the facts before him upon which he can make a reasoned judgement.

"That is the issue which may compromise the right of the defendant to have his fair day in court. We will ask for a stay of all further proceedings pending the determination of this."

Earlier in court, Mr. Unwin said the defence accepted there was an oral agreement, even up to the end of hearings on Monday.

Now they were disputing there was a verbal agreement and "they want to strike the whole thing out. That's the effect of this amendment," said Mr. Unwin.

"The defence amendment is a very substantial amendment because the whole case would be chucked out the window. I say he waited to hear the evidence. It was a calculated move.

"On Monday your Lordship asked if there was any amendments and Mr. Peniston said: 'I will leave the pleadings as they are'. That's Monday afternoon.

"It was the defence's responsibility to get its pleadings correct at the outset. The plaintiffs are of modest means and this case has already had to be prepared once in July.

"We have prepared a second time and it is far too late at this stage to be asking for leave to amend."

Jamal Burgess is represented by Larry Scott, who said he had no objection to the amendment.