Signia Wealth Ltd v Marlborough Trust Company Ltd & Ors

Permission to amend pleadings to add similar-fact evidence requires a two-stage assessment. First, the proposed evidence need only be capable, viewed objectively, of throwing light on or explaining the events in issue and of being potentially probative. Secondly, the court must balance its probative value against prejudice, cost, trial distortion, length and disruption. Lateness is relative and cannot be assessed solely by reference to the hearing date or the risk asserted by the resisting party. The evidence and case-management consequences must be evaluated carefully. Related foreign proceedings do not automatically prevent amendment where the English court will determine materially different issues, particularly the defendant’s state of mind and motivation. An amendment should be allowed where the evidence is materially probative, the overlap with foreign proceedings is limited, and the trial timetable can accommodate the additional work.

The claimant brought proceedings concerning the termination of the second defendant’s employment and directorship, the compulsory transfer of her shares, and allegations of conspiracy to injure and unlawful means conspiracy. The second defendant sought permission to amend her additional claim to rely on evidence concerning allegedly similar conduct by the fifth party in relation to executives of a Polish company.

The claimant opposed the amendment on relevance, lateness, disruption, cost, risk to the trial date and comity grounds. The court considered the applicable approach to similar-fact evidence, the impact of the proposed amendment on case management, and its relationship with proceedings in Poland.

1. Amendment allowed. The court permitted the second defendant to add the proposed similar-fact allegations and gave initial case-management directions, with a further case-management conference to follow.
2. The court adopted the two-stage approach derived from O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534. At the first stage, the question was whether the evidence might rationally throw light on or explain the later events, and whether an objective person might regard it as making the primary allegations more likely to be true. The threshold was conditional and not especially high. The issue was one of objective potential probative value, not whether the evidence was already proved or finally admissible.
3. At the second, case-management stage, the court had to weigh probative value against prejudice, trial distortion, cost and the burden of lengthening or disrupting the trial. The assessment was fact-specific. The overriding objective provided an additional lens through which those considerations could be evaluated.
4. The proposed evidence passed both stages. The alleged sequence of doubtful invoices, challenges, expenses investigations and dismissals bore a sufficiently striking similarity to the pleaded case to support an inference of predominant intention to injure. Its probative value was materially greater than the claimant suggested.
5. The overlap with the Polish proceedings was limited. The English court would not decide whether the Polish executives or the company had breached their employment contracts. It would examine facts relevant to the fifth party’s conduct, state of mind and motivation. Although comity and the possibility of inconsistent findings mattered, they did not outweigh the interests of justice in permitting materially probative evidence.
6. The amendment was not very late. Lateness was relative, and the court had to consider the application date, delay in bringing it on, available court time, the completeness of evidence about disruption, and the actual risk to the trial fixture. The evidence about additional work was overstated, and up to five additional trial days could be accommodated. The application costs were awarded to the applicant on the standard basis. Permission to appeal was refused because there was no real prospect of success.

First-instance decision on an application for permission to amend an additional claim. The judgment records no earlier decision in the same proceedings.