Su-Ling v Goldman Sachs International

A party seeking a very late amendment which would cause the loss of a fixed trial date bears a heavy burden. The court applies the overriding objective and balances injustice to the applicant against prejudice to the opponent, other litigants and the court. Relevant matters include the nature and strength of the new case, the explanation for its timing, wasted work and the consequences of adjournment.

Payment of costs does not necessarily cure the loss of a legitimate expectation of trial or wider disruption to court administration. Without a good explanation, a very late amendment causing real prejudice or disruption is unlikely to be permitted, even if the proposed case is arguable.

Su-Ling v Goldman Sachs International concerned an application made three weeks before trial for permission substantially to replace the claimant’s pleaded case. The underlying dispute arose from the defendant bank’s demand for repayment of a margin loan and its subsequent sale of shares held as collateral.

The proposed case alleged a new construction of the loan terms, duties under section 138(D)(2) of the Financial Services and Market Act 2000 and the Conduct of Business Sourcebook, and knowledge by the bank of an imminent market correction. It alleged that the bank should have warned the claimant or sold the shares immediately and aggressively. The claimant accepted that permission would require the trial to be adjourned and that, if permission were refused, her existing claim would not proceed.

The central issue was whether the strength and circumstances of the proposed case justified a very late amendment despite the unexplained delay, the loss of the trial date and the resulting prejudice.

1. The application for permission to amend was dismissed. An amendment must be refused if it has no real prospect of success. That threshold is the same as under Part 24 of the Civil Procedure Rules 1998. For a very late amendment, however, the broader question is whether the court should exercise its discretion under the overriding objective.

2. A heavy burden rests on a party seeking an amendment which would cause a fixed trial date to be lost. The court must balance injustice to the applicant against injustice to the opposing party and other court users. Lateness is relative and requires consideration of the nature of the amendment, the quality of the explanation, the strength of the proposed case, wasted work and the further work and disruption which permission would cause. Costs are not necessarily adequate compensation.

3. The claimant provided no satisfactory explanation for the delay. The proposed contractual construction could have been pleaded from the outset. The relevant disclosure and witness statements had been available for many months. The claimant’s other proceedings, state of mind and inadequately particularised funding difficulties did not explain the failure to review and advance the proposed case before the pre-trial review.

4. The proposed case was not sufficiently strong to justify the indulgence sought. The established mechanics of payment approach in Bank of Baroda v Panessar [1987] 1 Ch 335 and Sheppard & Cooper v TSB Bank plc and others [1996] 2 All ER 654 meant that the asserted contractual entitlement to 48 hours before default faced significant hurdles. The email relied upon concerned margin calls rather than repayment of an on-demand loan.

   The proposed liquidation case was speculative and inherently implausible. The available documents were at least as consistent with the bank’s explanation as with the alleged discovery of an imminent market collapse. There was no evidence of such a discovery, and the bank’s subsequent conduct was inconsistent with an instruction to dispose of the shares immediately. The case also faced substantial difficulties concerning causation, credibility and quantum.

5. Permission would cause real prejudice. The longstanding trial date had been lost, a replacement trial was unlikely before the following year, and the bank’s legitimate expectation of prompt determination had been defeated. The disruption affected the court and other litigants. Delay also created a risk that the claimant’s assets would be depleted through other creditor claims before the bank could enforce any judgment.

6. The claimant’s loss of the opportunity to advance a difficult new case did not outweigh those considerations. Whether fresh proceedings raising that case would constitute an abuse of process was left undecided. Following the claimant’s concessions, the claim was struck out under rule 3.4(2) and summary judgment was entered for the bank on its counterclaim under rule 24.2, with interest and consequential matters to be settled.

High Court (Commercial Court): This was a first-instance decision. The proceedings were issued in the Queen’s Bench Division and transferred by consent to the Commercial Court. Following case-management directions and an earlier refusal to adjourn the trial, the claimant applied shortly before trial to replace her existing case by substantial amendments. No appeal history is stated in the judgment.