Vilca & Ors v XSTRATA Ltd & Anor

Applications to amend pleadings are governed by the overriding objective and require the court to strike a fair balance between competing forms of injustice. Lateness is relative. An amendment may be late because it could have been made earlier, because it duplicates work, or because it threatens procedural disruption. A very late amendment is one which threatens the trial date, and carries a heavy burden of justification.

The absence of a good explanation for delay is an important factor, but is not an absolute bar. The court must consider the strength and importance of the proposed case, prejudice to the parties, the effect on the administration of justice, other litigation and other litigants, and whether the amendment can be accommodated without disrupting the trial. A limitation defence to Peruvian-law claims was therefore allowed.

The defendants sought permission to amend their defence to plead that the claimants’ claims under Peruvian law were barred by the two-year limitation period in article 2001 of the Peruvian Civil Code of 1984. The claims arose from a protest at or near a Peruvian mine in 2012. The proposed amendment was raised in response to amendments to the claimants’ pleaded Peruvian-law case, but also extended to the earlier Peruvian-law claims.

The claimants argued that the amendment was unjustifiably late, would cause retrospective prejudice and might have enabled preliminary issues to be tried earlier. The defendants accepted, for the purposes of the application, that the limitation defence had a real prospect of success. The central issue was whether the amendment should be permitted under the principles governing late amendments.

1. Applicable principles. The court adopted the approach in Swain-Mason and others v Mills & Reeve LLP [2011] EWCA Civ 14 and endorsed the summaries in Quah Sy-Ling v Goldman Sachs International [2015] EWHC 759 (Comm) and CIP Properties (AIPT) v Galliford Try Infrastructure Ltd [2015] EWHC 1345 (TCC). The court’s discretion is controlled by the overriding objective. It must balance injustice to the applicant if permission is refused against injustice to the opposing party and other court users if permission is granted.
2. Lateness and burden. Lateness is relative. It may arise because an amendment could have been made earlier, or because it requires completed procedural steps to be revisited. A “very late” amendment is one made after the trial date has been fixed where permission would cause the trial date to be lost. Such an application carries a heavy burden. Costs are not necessarily adequate compensation, and the court must consider disruption to the proceedings, the administration of justice and other litigants.
3. Explanation for delay. The absence of a good explanation is a factor in the balance, but it is not a fatal prerequisite. The court declined to treat the authorities as establishing a stricter rule.
4. Application. The amendment was not very late because it could be accommodated within the existing trial timetable. The issue was narrow, had already been addressed in expert evidence and had a real prospect of success. Although the defendants had no apparent justification for failing to raise it earlier, excluding the amendment risked preventing determination of an important limitation issue and producing an unjust windfall. That prejudice outweighed the prejudice relied on by the claimants.
5. The application to amend the defence to plead the limitation defence generally, including in response to the 2017 amendments and the earlier Peruvian-law claims, was allowed.