Kimathi v Foreign and Commonwealth Office

Late amendments to pleadings are governed by the overriding objective. The court must balance the applicant’s prejudice if amendment is refused against prejudice to the opponent, other litigants and the efficient conduct of the trial if it is allowed.

Delay, the absence of an explanation, the extent to which the amendment changes the case, the need for further evidence or cross-examination, and disruption to the trial are material factors. Lack of prejudice is not sufficient. A court must scrutinise each amendment on its merits, while also considering cumulative effects. Where an amendment is based on evidence or documents already available, the burden of justification is particularly important.

The claimants brought a substantial group action against the Foreign and Commonwealth Office. Following an earlier order permitting limited amendments, they served further proposed amendments to the Individual Particulars of Claim for 21 test claimants.

The defendant disputed many amendments, principally on the grounds of delay, lack of explanation, changes to dates and factual cases, prejudice to cross-examination and documentary research, limitation consequences, and disruption to the trial. Issues also arose concerning statements of truth and whether amendments were based on the claimants’ instructions or on lawyers’ interpretation of the evidence.

The central questions were whether particular amendments should be permitted under the overriding objective and whether the court should dispense with statements of truth for amendments allowed.

1. Outcome. Some amendments were allowed and others refused. For amendments permitted, the court dispensed with statements of truth as to those amendments. The detailed decisions were set out in the schedules.
2. The court applied the principles governing late amendment under the overriding objective. It balanced the prejudice to the party seeking amendment against prejudice to the opponent, other litigants and the efficient administration of justice. The strength of the proposed case, the reason for delay, the extent of any change in case, the need for further evidence or cross-examination, and disruption to the timetable were relevant considerations.
3. Each amendment had to be examined on its own merits. Earlier permission to amend did not create a precedent or generally dispense with the need to explain delay. The court also had to consider the cumulative effect of successive amendments and the risk of amendment creep.
4. Particulars of claim define the case to be met. A defendant is entitled to rely on them when conducting disclosure, preparing evidence and cross-examining witnesses. Amendments introducing materially different dates, locations, allegations or injuries at a late stage could therefore cause real prejudice even where the relevant documents were already in the defendant’s possession.
5. The absence of an explanation for delay was a factor to be weighed, not an absolute precondition to amendment. Some amendments were nevertheless refused because they materially changed the case, required further investigation or recall of witnesses, contradicted the evidence, lacked a proper evidential basis, or threatened disproportionate disruption. Other amendments were allowed where they clarified an existing case, reflected evidence already given, or caused no realistic prejudice.
6. Statements of truth were important. However, in appropriate circumstances, including amendments derived from documents, pleadings or evidence rather than fresh instructions, the court could dispense with verification under CPR 22.1(2). The court permitted that course for the amendments it allowed.

The judgment records earlier procedural orders and an earlier judgment in the same proceedings, including [2017] EWHC 938 (QB). The present judgment determined further objections to proposed amendments.