Berezovsky v Hine & Ors

A party should not introduce a wholly new cause of action at a very late stage where doing so would disrupt the trial, prejudice other parties, or undermine established case-management arrangements. The court must balance the strength and importance of the new case against justice to all litigants, including the practical consequences for disclosure, evidence, trial length and delay. A party may continue to rely on evidence forming part of the background to existing pleaded claims, but may be prevented from using that evidence to found a new proprietary or trust claim.

Boris Berezovsky applied to maintain, in answers to a request for further information, a new case against Roman Abramovich concerning an alleged bilateral joint venture with Badri Patarkatsishvili. The proposed case alleged that the joint venture gave Mr Berezovsky an interest in aluminium assets and RusAl and that Mr Abramovich consequently held those interests on an express, resulting or constructive trust.

The application arose shortly before the October 2011 joint trial of the Commercial Court and Chancery proceedings. The court had previously defined the issues to be tried and had excluded the bilateral joint venture as an issue requiring determination. The central question was whether the new case should be permitted or struck out.

1. Late amendment test. The court treated the application as effectively concerning permission to amend, whether framed as a strike-out application under CPR 3.4(2) or an application under CPR Part 17. The essential question was whether allowing the new case would abuse the court’s process, obstruct the just disposal of the trial, or prejudice another party.
2. Under Worldwide Corporation v GPT Ltd [1998] EWCA Civ 1894, where a party has had ample time to formulate its case, the burden is heavy when a late amendment would delay the trial or inconvenience other litigants. The court must balance the strength of the new case and the risk of serious injustice against justice to the opponent and other court users.
3. The proposed bilateral-joint-venture case was introduced after several earlier reformulations of the claim. It would require extensive additional disclosure, evidence and submissions. It would also risk inconsistent findings in the Chancery proceedings, require reconsideration of the agreed issue structure, and substantially delay or expand the joint trial. No serious injustice to Mr Berezovsky justified those consequences, particularly because existing contractual and proprietary claims remained available.
4. The court therefore struck out reliance on an alleged bilateral joint venture, whether overarching or limited to the aluminium assets or RusAl, as grounding a cause of action against Mr Abramovich. Evidence about the commercial relationship with Mr Patarkatsishvili could still be given as background to the existing claims. Trust or proprietary remedies flowing from those existing pleaded claims could also be pursued. The precise order was left for discussion with counsel.