Monks v National Westminster Bank Plc

A party seeking, shortly before trial, to amend its pleaded case or introduce substantial new evidence bears a heavy burden. The court considers the proposed amendment, the procedural history, the explanation for its timing, and the prejudice to the parties, the administration of justice and other litigants. The absence of any evidential explanation for delay is highly significant. Prejudice is not limited to whether an adjournment is formally sought. A litigant in person must have a fair and reasonable opportunity to understand and answer a materially revised case and extensive new evidence. Where late procedural steps create overwhelming prejudice and equality of opportunity cannot be preserved without disrupting the trial, the application should be refused.

National Westminster Bank Plc applied in proceedings commenced in March 2013 for permission to amend its defence, serve and rely on a 27-page witness statement with an exhibit exceeding 220 pages, and, if necessary, obtain relief from sanctions. The application was made only days before a four-day trial. The pleadings had closed nearly two years earlier, and several case-management hearings had taken place during which the defendant maintained its existing case. The claimant, a litigant in person, opposed the application on the grounds of lateness and prejudice. The central issue was whether the proposed amendment and evidence could fairly be introduced at that stage.

1. Application dismissed. The proposed amendment and late witness evidence were sought only days before trial, after pleadings had stood for almost two years and after repeated case-management directions.
2. The court applied the approach discussed in Swain Mason v Mills & Reeve LLP [2011] EWCA Civ 14. Relevant matters included the terms of the amendment, the history of amendments, the absence of evidence explaining the delay, and the prejudice to each side. A very late amendment attracts a heavy onus of justification.
3. The absence of any explanation in the evidence for why the new evidence and revised defence could not have been prepared earlier was particularly important. Submissions from counsel could not supply the missing evidential explanation.
4. The proposed material was extensive and raised a revised factual and legal case. A litigant in person could not reasonably be expected to deal with it immediately while preparing for trial. Fairness required a genuine opportunity to consider and answer the material, which would inevitably require an adjournment and potentially further pleadings, disclosure and evidence.
5. Prejudice to the administration of justice and other litigants was an independent consideration. The fact that the claimant did not seek an adjournment did not remove the prejudice caused by the late application. The prejudice was overwhelming, and the application was dismissed.