Bookmakers' Afternoon Greyhound Services & Ors v Amalgamated Racing Ltd & Ors

Permission to amend a pleading late in a trial is discretionary and must be exercised judicially. The court should ordinarily permit an arguable amendment needed to determine the real dispute where resulting prejudice can fairly be compensated by costs and the efficient administration of justice is not significantly harmed. However, substantial expansion of the pleaded case after evidence and closing submissions may properly be refused where it would require new evidence, recalling witnesses, reopening the trial and substantial delay. A party’s use of a legal label in opening submissions does not entitle it to advance a materially wider case based on unpleaded allegations.

The claimants applied at the end of an expedited trial for permission to amend their particulars of claim. The original pleading challenged agreements and licences concerning the collective exclusive licensing of racing rights under section 2(1) of the Competition Act 1998 and Article 81(1) of the EC Treaty.

The proposed amendment introduced multiple horizontal agreements between racecourses, alleged collective price-setting, and consequences extending to the validity of individual licences. The defendants opposed the application on the ground that it was a substantial and late expansion requiring further evidence and reopening the trial. The issue was whether justice required permission to amend, subject to any appropriate terms.

1. The application to amend was refused, subject only to permission for an unopposed limited amendment intended to clarify the original pleading.

2. In applying the guidance in Cobbold v London Borough of Greenwich (9 August 1999) and the other Court of Appeal authorities, the court recognised that amendments should generally be allowed so that the real dispute can be adjudicated, provided prejudice can be compensated by costs and the efficient administration of justice is not significantly harmed.

3. The relevant prejudice was not simply the prospect of the defendants losing the wider case. It was the prejudice caused by the case being introduced only after the evidence had closed. The proposed amendment would probably require further evidence from new witnesses, recall of witnesses already cross-examined, reopening of the expedited trial, further closing submissions and significant delay. Those consequences could not satisfactorily be treated as a merely financial prejudice.

4. Kelly v Chief Constable of South Yorkshire 2001 EWCA Civ 1632 was materially different. Its guidance concerning a factual case emerging from the evidence did not justify permitting the present amendment, which introduced a substantially wider case involving several previously unpleaded horizontal agreements.

5. Construed as a whole, the original pleading permitted the claimants to argue that a limited horizontal agreement or practice prevented racecourses from negotiating individually and constituted an object restriction, potentially including an argument that its object was price-fixing. It did not plead the series of wider horizontal agreements set out in the draft amendment.

6. The claimants’ reference to price-fixing in opening submissions did not expand the pleaded case. Permission was therefore refused for the wider amendment, while the claimants could pursue the limited clarification if still desired.

not stated in the judgment.