JW Spear & Sons Ltd & Ors v Zynga Inc

Permission to amend a statement of case is governed by the overriding objective in CPR 1.1. There is no additional or elevated burden merely because an amendment is made late. The court must balance all relevant circumstances, including lateness, the explanation for it, the strength of the proposed case, prejudice to each party, effects on other litigants, delay, costs and the clarity of the proposed pleading.

A late amendment should be permitted where it has a real prospect of success and refusal would prevent a party from presenting a case capable of affecting the result, provided the resulting prejudice can be managed consistently with achieving a just result.

The claimants brought proceedings concerning alleged trade mark infringement and passing off arising from the defendant’s digital game, Scramble with Friends. During the trial, disclosure concerning four earlier versions of the defendant’s game led the defendant to seek permission to re-re-re-amend its Defence and Counterclaim.

The proposed amendment relied on the claimants’ alleged knowledge of the earlier products and their failure to treat them as threats. The claimants opposed the application on grounds including lateness, prejudice, delay and the adequacy of the pleaded case. The central issue was whether the amendment should be permitted under the overriding objective.

1. The application was granted, subject to the production of a revised draft reflecting the matters disallowed by the court. The proposed case concerning the claimants’ knowledge of earlier versions had a real prospect of success and, if established, could provide a defence to the infringement and passing-off claims.

2. Under Civil Procedure Rules 1998, rules 17.1(2) and 1.1, permission to amend is a discretionary case-management decision directed towards dealing with cases justly and at proportionate cost. The overriding objective requires the court to consider all relevant circumstances. Procedural rules are servants of the just resolution of disputes, rather than masters of it.

3. The court rejected the suggestion that a very late amendment attracts an additional “heavy onus” or special hurdle. Lateness is an important factor, particularly where an adjournment or inconvenience to other litigants may result, but it has no elevated status above the other considerations. The court must strike a fair balance between the parties and the wider administration of justice.

4. The relevant considerations included the history and explanation of the amendment, the prejudice caused by granting or refusing it, the likely delay and additional costs, the effect on other litigants, the strength of the proposed case, and whether the draft pleading clearly and adequately identified the case to be met. A proposed amendment must itself satisfy proper pleading requirements and should not depend on later evidence or informal clarification.

5. Here, the claimants’ disclosure failures contributed to the timing of the application. The amendment could be confined to a small number of relevant employees, materially reducing the burden on the claimants. The resulting delay was slight, the additional costs were manageable, and refusal would deprive the defendant of an arguable defence. Those considerations outweighed the prejudice relied upon by the claimants.