SDI Retail Services Ltd v The Rangers Football Club Ltd

Permission to amend pleadings should be refused only where the proposed amendment has no real prospect of success. The test requires a realistic, more than fanciful, prospect, but does not permit a mini-trial on incomplete evidence. Where a short point of law or construction can properly be decided on the material available, the court may determine it summarily. It should refrain from doing so where disputed evidence or the factual matrix requires fuller consideration. A non-party seeking to participate in a trial should generally apply to be joined as a party and accept the procedural obligations that follow, including appropriate disclosure.

The claimant sought permission under Civil Procedure Rules 1998 Part 17 to amend its particulars of claim. The proposed amendments concerned alleged breaches of a retail agreement arising from agreements made between the defendant and a third-party sportswear supplier. The defendant opposed amendments relating to an agreement involving the supplier and Hummel, arguing that the claims had no real prospect of success.

The third party separately sought permission to participate in the speedy trial of claims for injunctive relief without being joined as a party. The court also considered the parties’ costs budgets.

1. Amendment application allowed. The claimant established that the proposed claims had a real prospect of success. That means a realistic prospect carrying some degree of conviction, rather than a merely arguable or fanciful prospect.
2. The court should not conduct a mini-trial when deciding an amendment application. The construction of the retail agreement depended partly on disputed evidence and the proper assessment of the factual matrix. The court did not have all the material necessary to determine the construction issue fairly.
3. The court considered that the agreement contained provisions capable of supporting the claimant’s construction. The definitions of “Offered Rights” and “Permitted Activities” did not clearly exclude wholesale rights, and the meaning of “connected commercial arrangements” required fuller argument. The court therefore declined to form a provisional or final view on the merits, leaving those issues for the speedy trial.
4. Where a short point of law or construction can be decided on complete material and after adequate argument, the court may determine it at an interlocutory stage. That course was inappropriate here because the evidence and contractual context remained contested.
5. Third-party application dismissed. The third party could not obtain the advantages of participation, including calling and cross-examining witnesses, without assuming corresponding obligations. It was required to apply to become a party under Civil Procedure Rules 1998 Part 19.2. The court was minded to permit joinder, subject to appropriate terms, with participation confined principally to the appropriateness and effect of injunctive relief.
6. The defendant’s agreed costs budget was approved. The claimant’s costs budget was assessed at £405,155.

The judgment describes earlier case-management proceedings before Teare J, including a judgment on liability issues and subsequent directions for a speedy trial. No citation for that judgment is stated in the judgment supplied. The present judgment determined the amendment application, the third party’s participation application and costs budgets.