GBM Minerals Engineering Consultants Ltd v GB Minerals Holdings Ltd

Applications to amend pleadings are assessed by reference to the overriding objective and proportionality. Lateness is relative. An amendment is particularly late where it could have been made earlier, duplicates completed work, or requires significant steps in the litigation to be revisited. An amendment threatening the trial date is very late and requires compelling justification.

The court must balance the amendment’s history, explanation, clarity, particularity, and the prejudice to each party. Serious allegations arising from the same underlying facts may justify a late amendment, but insufficient preparation time may require the trial date to be vacated. A party should ordinarily be permitted to withdraw reliance on documents whose apparent authenticity has become seriously compromised, provided the case that remains is legally coherent.

The claimant sought payment under a consultancy contract concerning a mining project. Its pleaded case relied substantially on 17 variation orders, which had been created after the dates appearing on them. Following disclosure and an earlier judgment granting permission for contempt proceedings, the claimant applied to amend its pleadings to remove reliance on those documents.

The defendant applied to amend its defence and counterclaim to plead alleged secret payments made by the claimant to an account controlled by the defendant’s former chief executive. Both applications were made shortly before the fixed trial. The central issues were whether the amendments should be permitted and, if so, whether the trial date could be maintained.

1. Defendant’s amendment. The proposed secret-payment allegations were sufficiently focused and arose from the same factual relationship as the existing dispute. The defendant had discovered the relevant material through detailed disclosure, and the claimant’s later explanation prompted the drafting of the amendment. Although the delay was imperfectly explained, it did not justify refusing permission.
2. Applicable approach. The court adopted the principles summarised in CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 2015 1345 (TCC). Lateness is relative and includes amendments requiring duplication of cost or revisiting completed disclosure, witness evidence, or expert evidence. An amendment is “very late” where it threatens the trial date. The court must consider the amendment’s history, explanation, clarity and particularity, and the prejudice to both parties.
3. The allegations were serious and potentially central to the fairness of the trial. Excluding them could produce an artificially restricted and unjust determination. Permission was therefore granted.
4. Seven weeks was insufficient for the claimant properly to investigate the allegations, obtain any necessary Canadian law advice, and prepare further evidence. The existing trial date was consequently vacated.
5. Claimant’s amendment. Permission was also granted to remove reliance on the 17 variation orders. It would not be sensible to require the claimant to continue with a case based on documents which, on the material then available, appeared to have been created falsely. Any lack of particularity could be addressed by further information. The claimant was ordered to respond to the defendant’s requests for further information.
6. The decision was confined to the unusual facts. It did not dilute the stringent approach to very late amendments or the expectation that Technology and Construction Court trial dates will ordinarily be maintained.

First instance decision. The judgment records that permission to appeal in related contempt proceedings had been refused on paper, but those proceedings were separate from the present applications.