Bing Holdings Inc & Anor v Hue-Williams

A very late amendment is governed by the overriding objective and requires the applicant to show both the strength of the new case and why justice requires its introduction. The court must weigh prejudice to the applicant against prejudice to the opponent, other litigants and the administration of justice. Loss of a fixed trial date is a significant consideration.

A contractual claim for a reasonable sum differs from a quantum meruit based on unjust enrichment. The latter focuses on the defendant’s enrichment and may require assessment of the subjective value of the benefit. Where a late amendment introduces that distinct claim and requires new evidence, permission may properly be refused if the trial would need to be adjourned.

The defendant brought a claim against the fourth party arising from services provided in connection with an art collection project. The existing pleading advanced contractual and quantum meruit claims based on the value of work performed. Shortly before a five-day trial, he sought to amend the pleading to introduce an express claim in restitution and/or unjust enrichment, including compensation based on the value of the benefit received by the fourth party.

The application required the court to decide whether the proposed amendment was merely clarificatory or introduced a new cause of action requiring further pleading, evidence and expert consideration, and whether it could fairly be tried without losing the fixed trial date.

1. Application refused. Permission to amend was declined, and the trial was directed to proceed on the existing pleadings.
2. The court adopted the principles stated in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm). A very late amendment engages the overriding objective. The applicant bears a heavy burden of showing the strength of the proposed case and why justice requires its introduction. Lateness is relative, but the loss of a fixed trial date, inadequate explanation and the wider interests of court users weigh heavily against permission.
3. The proposed amendment introduced a distinct claim. A contractual claim for a reasonable remuneration differs from a quantum meruit founded on unjust enrichment. As explained in Benedetti v Sawiris [2013] UKSC 30, a contractual claim focuses principally on the parties’ objectively ascertained intentions, whereas unjust enrichment requires attention to the defendant’s enrichment.
4. An unjust enrichment claim would require consideration of enrichment, enrichment at the claimant’s expense, injustice and available defences. The court also accepted that valuation might require assessment of the subjective value of the benefit, rather than merely the objective market value of the services. That issue had not been covered by the existing expert evidence.
5. There was insufficient time for the fourth party to consider the new claim, plead to it, adduce evidence and address further expert evidence. The amendment was therefore unfair without an adjournment. The applicant preferred continuation of the fixed trial to an adjournment, which disposed of the application. A split trial would also have created duplication, delay and additional costs.