Electrical Waste Recycling Group Ltd & Anor v Philips Electronics Uk Ltd & Ors

Applications to amend pleadings before trial should generally be permitted so that the real dispute can be adjudicated, unless the resulting prejudice cannot fairly be addressed. The court must balance the parties’ competing risks of injustice, having regard to the overriding objective, the need for disclosure and the time reasonably required for preparation. A perceived limitation on disclosure will not necessarily amount to a binding agreement or prevent amendments where the need for wider disclosure has become apparent. Where amendments require substantial disclosure and expert evidence, the court may permit them but adjourn the trial. A split trial should be determined only after the issues to be allocated to liability and quantum have been precisely identified.

The claimants sought permission to make further amendments in substantial competition proceedings concerning lamp recycling arrangements, together with an order separating liability and quantum. The defendants opposed the additions, arguing that they introduced new claims, required extensive further disclosure and expert evidence, and jeopardised a trial listed for May to July 2012.

The claimants also sought disclosure beyond 23 December 2009. The defendants contended that the parties had proceeded on the basis of that temporal limit. The application required the court to decide whether the amendments should be allowed, whether the existing trial timetable remained feasible, and whether the trial should be split.

1. Amendments. The amendments were permitted, subject to costs and a reserved issue concerning whether one proposed plea impermissibly recast a claim on which summary judgment had already been granted. The existing pleadings, read objectively and as a whole, sufficiently disclosed the shape of the proposed upstream competition claim. It was therefore unfair to refuse permission merely because the defendants had not understood the pleadings in that way.
2. Prejudice and disclosure. The discretion to permit amendment is broad and must be exercised by balancing prejudice, fairness and the overriding objective. The general, though rebuttable, presumption favours allowing amendments before trial so that the issues can be properly defined. The claimants’ failure to object earlier to a proposed disclosure end-date did not establish a binding agreement, estoppel or other bar to further disclosure. The defendants were nevertheless entitled to the time reasonably required to investigate the Article 101(3) exemption and the consequential factual, economic and expert issues.
3. Trial date. The existing trial window was not realistically achievable. Although an October 2012 trial might be possible, the court lacked sufficient confidence that the parties could prepare fairly and efficiently by then. The safer course was to seek a trial date at the beginning of Hilary Term 2013, subject to listing arrangements.
4. Split trial. The court deferred determination of whether liability and quantum should be tried separately. The parties were directed to identify precisely the issues falling within each stage and to use best endeavours to agree a sensible allocation. Costs, including the consequences of withdrawn claims, were also deferred.