Sinclair Investment Holdings SA v Cushnie & Ors

Late amendments introducing serious new causes of action will ordinarily require sufficient time for the opposing party to prepare and may require an adjournment of the trial. The court must exercise its case-management discretion justly, balancing the prejudice to the applicant if an arguable claim is excluded against the prejudice to the other parties, including delay, litigation strain and wasted court time. A party seeking amendment bears responsibility for making the application promptly. Where delay is self-induced, the court may refuse the amendment rather than impose a further adjournment, particularly after an earlier adjournment and warning that another was unlikely.

The claimant sought, on the second day of trial, permission to amend its already amended particulars of claim to introduce claims for dishonest assistance or inducement of breach of trust and conspiracy against the third defendant and two companies. The proposed claims concerned allegations that the defendants had participated in transactions involving money paid by the claimant to Trading Partners Limited.

The defendants opposed the amendments on grounds of lateness, inadequate preparation time and the need for a further adjournment. The claimant had previously obtained an adjournment of the trial after inadequate preparation and had been warned that a further adjournment was unlikely. The issue was whether the amendments should be permitted and, if so, whether the resulting adjournment was fair.

1. Application refused. The proposed amendments raised substantially new claims involving allegations of dishonesty and conspiracy. They could not fairly be tried immediately. The defendants required reasonable time to consider the allegations, obtain further information and decide what evidence to adduce.
2. If the amendments were allowed, the trial would have to be adjourned. The adjournment would need to extend beyond the claims against the Leong-Son defendants because the issues were directly connected with the claims against the Cushnie defendants. A split trial risked inconsistent findings.
3. The court’s task was one of case management. It had to balance the prejudice to the claimant from losing the opportunity to pursue arguable claims against the prejudice to the defendants and the waste of court time caused by a further adjournment.
4. Applying the approach in Ketteman and Others v Hansel Properties Ltd and Others [1987] AC 189, an offer to compensate the opposing party in costs did not resolve the problem. The court also had to consider the wider consequences of a late amendment and adjournment.
5. The lateness was self-induced. The claimant could have applied earlier, including by using the Chancery Division’s urgent interim-application procedure. The first trial date had already been lost through similar preparation failures. Although refusal caused prejudice to the claimant, the further prejudice was attributable to its own conduct. Permission to amend was therefore refused.