London Executive Aviation Ltd v The Royal Bank of Scotland Plc

Permission to amend at trial is discretionary. The court must balance the applicant’s prejudice against prejudice to the opponent and other court users, giving substantial weight to the overriding objective and proportionate case management. A very late amendment requires a sufficiently strong case, a good explanation for delay and a realistic assessment of disruption, wasted work and the effect on the trial fixture. Lateness is relative rather than absolute. Where a trial has already been suspended and the necessary consequential steps can be completed before relisting, disruption may be substantially reduced.

Specific disclosure should be ordered where the requested document is likely to fall within the standard disclosure obligation and is materially relevant to the pleaded issues. The search must be defined narrowly so that it does not become an open-ended or disproportionate trawl.

The claimant brought deceit and negligence claims concerning two interest-rate swaps and sought rescission or damages. During the opening of the trial, it applied to amend its particulars of claim, adduce two further witness statements and obtain specific disclosure of an internal policy concerning credit line utilisation.

The amendment alleged that the defendant had failed to disclose a material risk reflected in a credit line utilisation figure. The disclosure application sought documents recording, formulating or promulgating a policy about non-disclosure of such information. The applications were opposed as late, inadequately pleaded, lacking a real prospect of success, disproportionate and disruptive.

The trial was suspended by agreement and was to be relisted after the long vacation. The issues were whether the amendment and evidence should be permitted, and whether a narrowly defined search for relevant policy documents should be ordered.

1. Amendment and further evidence. The application was made at the latest possible stage, but lateness is relative. The court applied the principles summarised in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm), including the need to consider the strength of the new case, the explanation for delay, prejudice, wasted work, disruption to the trial and the interests of other court users.
2. The proposed allegation that the defendant failed to disclose the credit line utilisation had a real, although necessarily provisional, prospect of success. The chronology did not defeat the pleading because the relevant transaction occurred after the figure was obtained, and the claimant relied on a continuing obligation to correct an earlier representation which later became misleading. Whether the figure would have affected reliance was an evidential matter.
3. The pleading required clear particularisation because it advanced fraud, but the defects identified were capable of cure and were principally organisational. The claimant’s explanation that the significance of the evidence only became clear on receipt of a witness statement was weak. Nevertheless, the suspension of the trial meant that the necessary responsive pleading, evidence, expert evidence and further submissions could be prepared before relisting, with little or no material disruption.
4. Having regard to the overriding objective and proportionate justice, permission was granted to amend the particulars of claim and to adduce the two further witness statements.
5. Specific disclosure. A document existing in the material period whose purpose, or one purpose, was to record, formulate or promulgate within the defendant a policy of the relevant kind would very likely fall within CPR Part 31.6(b), particularly in light of the amended allegation and its potential relevance to dishonesty. The application was therefore granted in principle.
6. The search was to be closely defined and limited to documents of that description. An open-ended search for every document referring incidentally to such a policy would be disproportionate. The defendant was also directed to file a short witness statement describing the nature and outcome of the search. The parties were invited to agree an order, failing which rival drafts were to be submitted.