Lifestyle Equities CV & Anor v Sportsdirect.Com Retail Ltd & Ors

A very late application to amend pleadings must identify the new factual allegations with sufficient particularity to give the opposing party fair notice of the case to be met. General wording, a pleading platform for future amendments, or an inference drawn from surrounding provisions cannot supply allegations that have not been properly pleaded. Where the proposed amendment would introduce an unpleaded issue requiring further factual and expert evidence, permission may be refused, particularly when the application is made at trial.

The claimants sought permission, on the first morning of trial, to amend an already heavily amended reply and defence to counterclaim. The proposed amendment alleged that an agreement could not provide a defence to infringements occurring after the agreement was made. The defendants argued that no post-agreement infringement had been factually pleaded, that the agreement and related correspondence required further amendment, and that Dutch legal experts had not considered the issue.

1. Application refused. The pleading referred to the relevant goods under the heading “the 2013 acts” and particularised only pre-agreement activity. It contained no factual allegation of infringement concerning those goods after the agreement came into effect. The general reference to regulatory articles did not incorporate an unpleaded post-agreement claim ([2018] EWHC 811 (Ch), paras 4–9).
2. The defence’s assertion that earlier claims had been compromised did not acknowledge or plead later infringements. Any such allegations required proper particularisation. Nor could the general reservation of a right to rely on further acts of infringement be used, at trial and after disclosure and witness statements, as a platform for unparticularised allegations ([2018] EWHC 811 (Ch), paras 10–11).
3. Pleadings set the agenda for trial. A pleading that omits factual allegations on which a party intends to rely does not give sufficient notice of the case to be met. Late or very late amendments must particularise the new allegations sufficiently to avoid the need for further information requests and consequential disruption ([2018] EWHC 811 (Ch), paras 12–13).
4. Although the judge considered it unlikely that the agreement extended to post-agreement infringements, the issue could not be determined without consideration by Dutch legal experts. The proposed amendment would also require further amendments concerning the agreement, the accompanying letter and the disputes existing when the agreement was made. The lateness of the application and resulting disruption provided an additional reason to refuse permission ([2018] EWHC 811 (Ch), para 14).

not stated in the judgment.