Hague Plant Ltd v Hague & Ors

Permission to amend a statement of case shortly before trial requires a compelling justification, particularly where the proposed amendments introduce a substantially different case, duplicate claims in separate proceedings, disrupt an established timetable, or raise arguable limitation issues. A party cannot ordinarily justify a late change of case by relying on a different explanation of facts that was materially known from the outset. The court may refuse amendment where the proposed case is better addressed in separate proceedings and would cause substantial delay and wasted work. The burden lies heavily on the applicant. Consent amendments may be permitted while the contested amendments are refused.

The claimant sought permission, six years into the proceedings and shortly before trial, to introduce substantial amendments to its pleaded fiduciary-duty and related claims. The proposed amendments included allegations of reckless breach, corporate opportunity, dishonest assistance, deliberate concealment and a substantially reformulated financial claim.

Earlier attempts to introduce materially similar allegations had been refused by HHJ Behrens and that ruling had been upheld by the Court of Appeal. The claimant had also commenced separate proceedings, known as Hague 6, raising the same allegations. The central issue was whether the circumstances justified permitting the late and substantially changed case in the existing action.

1. Disposition. The application was dismissed in relation to the contested amendments. Minor amendments and uncontested deletions were permitted. An amended pleading had to be served by 4.00 pm on 1 September 2017.
2. Late amendment. The court applied the guidelines summarised in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759. The claimant bore a heavy burden of justifying amendment and had failed to discharge it.
3. Separate proceedings and disruption. The proposed allegations were already made in Hague 6. The existence of those proceedings was a sound reason to avoid duplication. Allowing the amendments would derail a six-year-old action, abandon the advantages of the Issues Judgment, require substantial further work and postpone trial for an unacceptable period.
4. No sufficient change of case. The essential commercial arrangements had been known for years. The defendants’ explanation of those arrangements had not materially changed. The claimant was seeking a different legal challenge because of the outcome of the Issues Judgment, rather than responding to a genuinely new case.
5. Limitation. The reformulated claim was not fundamentally the same claim merely because the remedy had changed. In light of Mercer v Ballinger [2014] EWCA Civ 996, the claimant had not addressed the arguable limitation issues adequately. Those issues were preferably determined in Hague 6.
6. Outstanding request. The claimant was required to answer the outstanding Part 18 Request by 4.00 pm on 1 September 2017. If it failed to do so, the claim would be struck out and the defendants would be entitled to their costs. The provisional costs order was that the claimant pay the defendants’ costs on the standard basis.

The judgment records that earlier proposed amendments had been refused by HHJ Behrens in March 2014 and that ruling had been upheld by the Court of Appeal in December 2014. The present decision was a first-instance determination of a further amendment application.