Bank of Scotland Plc & Anor v United Breweries (Holdings) Ltd

Where further sums fall due after proceedings begin, the court may permit amendment to include them. There is no absolute rule preventing reliance on a cause of action arising after commencement. The discretion is exercised in accordance with the interests of justice, including the common legal basis of the additional claim, the defendant’s knowledge of it, the absence of objection or prejudice, and its merits.

Summary judgment is appropriate where the evidence establishes the debt, there is no disputed issue of fact or law, the defendant has no real prospect of defending the claim, and there is no other compelling reason for a trial.

The claimants, comprising a security trustee and the assignor of an aircraft lease, sought recovery under a guarantee given by United Breweries (Holdings) Ltd in respect of sums allegedly owed by Kingfisher Airlines Ltd under leases of ten aircraft.

The defendant had acknowledged an intention to defend but had served no defence, evidence or skeleton argument. The claimants sought permission, if necessary, to amend their Particulars of Claim to include further sums accruing after issue, and applied for summary judgment for US $21,589,972.56.

The issues were whether the amendment should be permitted and whether the defendant had any real prospect of defending the guaranteed debt.

1. Amendment. The court permitted amendment of the Particulars of Claim to include sums accruing after issue. There was no absolute rule of law or practice preventing such an amendment. The relevant question was whether discretion should be exercised as justice required. The additional sums arose on the same legal basis, had been demanded, were fully identified in successive witness statements, had not been opposed, and had no less prospect of success than the original claim: Maridive and Oil Services (SAE) v CNA Insurance Company (Europe) Ltd [2002] 1 All ER (Comm) 653 at [54].
2. Liability. The evidence established that Kingfisher had failed to pay substantial sums due under the lease and that the defendant had failed to pay under the guarantee. The total sum of US $21,589,972.56 was due and owing by the defendant to the claimants.
3. Summary judgment. There were no disputed issues of fact or law. The defendant had identified no possible defence and had no real prospect, indeed no prospect whatsoever, of defending the claim at trial. There was no other reason for the matter to proceed to trial.
4. The claimants were therefore entitled to summary judgment for US $21,589,972.56.