Brown & Ors v Innovatorone Plc & Ors

Permission to amend pleadings is a fact-sensitive exercise requiring a fair balance between the applicant’s ability to present the real dispute and prejudice to other parties and litigants. A very late amendment carries a heavy onus. Prejudice which cannot adequately be compensated by costs, including disruption to a fixed trial and difficulties preparing evidence, is particularly important. The court should consider the history and explanation for delay, the prejudice if permission is refused, the prejudice if it is granted, and the clarity and particularity of the proposed pleading. The appropriate result may be to allow a properly particularised and limited amendment while refusing or restricting wider allegations.

The claimants applied during an ongoing trial to re-re-amend their Particulars of Claim. The proposed amendments concerned the scope of a conspiracy claim, a misrepresentation claim against Mr Roper, and 29 further allegations that documents had been backdated in schedule GS13.

The defendants opposed the amendments, principally on grounds of lateness, inadequate particularity and prejudice. The central issue was whether permission should be granted, and if so, on what limited terms.

1. General approach. The court had to strike a fair balance in accordance with the overriding objective. The relevant considerations included the history of the amendment and explanation for delay, prejudice to the applicant if refused, prejudice to the opposing party if allowed, and whether the proposed text was clear and sufficiently particularised. The factors were not exhaustive and depended on the circumstances. The approach was informed by Cobbold v Greenwich Borough Council, Ketteman v Hansel [1987] AC 189, Worldwide Corporation v GPT Limited [1998] EWCA Civil 189 and Swain-Mason v Mills & Reeve [2011] 1 WLR 2735.
2. A very late amendment attracts a heavy onus. The court must consider prejudice which cannot be compensated by costs, including disruption to a fixed trial, the burden of revisiting witness statements and expert reports, and the strain imposed on personal litigants. The absence of a new cause of action does not remove those considerations, although it may reduce the prejudice to the applicant if permission is refused. Savings & Investment Bank Limited v Fincken [2004] 1 WLR 667 was considered in that context.
3. The conspiracy amendment sufficiently clarified and narrowed the existing case and caused no prejudice. Permission was granted. Permission was also granted for the amendment removing the alleged January 2005 misrepresentation by silence against Mr Roper.
4. Allowing all 29 new backdating allegations would cause unfair and inadequately compensable prejudice to the defendants. Refusing all such allegations would nevertheless prejudice the claimants. The court therefore required a properly particularised schedule and allowed the limited revised schedule GS13, comprising the narrowed allegations. The amendments did not introduce a new cause of action and the revised schedule was sufficiently clear because it identified the documents relied upon and reflected the existing form of GS13.
5. The defendants were given liberty to serve further witness statements addressing the specific allegations. No pleading to the further schedule was required.