Salt Ship Design AS v Prysmian Powerlink SRL

Permission to amend a statement of case is discretionary and requires a balance between injustice to the applicant and prejudice to the opposing party, other litigants and the administration of justice. An amendment is refused on the merits only where it has no real prospect of success, applying the summary-judgment standard. There is no fixed higher merits threshold for a very late amendment, although lateness increases the burden of showing sufficient strength and justification. Where new claims substantially overlap existing issues and have reasonable prospects of success, permission may be granted despite vacating a fixed trial date.

Salt sought permission under CPR Part 17.1(2) to amend its contractual claim against Prysmian. The amendments added claims for breach of confidence, unlawful means conspiracy and exemplary damages, based on alleged misuse of Salt’s ship-design know-how in the design and construction of a cable-laying vessel by Vard.

Prysmian opposed the application on grounds of lateness, pleading defects, insufficient prospects of success and prejudice. The issues were whether the amendments were properly pleaded, whether the new claims met the merits threshold, and whether the balance of injustice favoured allowing them.

1. Application granted. Permission was granted to make the amendments. The January 2020 trial was vacated. The trial was to be re-fixed no earlier than 4 May 2020, with an estimate of 6–8 days, and directions were ordered for amended pleadings, further disclosure and a case management conference.

2. The court followed Swain-Mason v Mills & Reeve LLP [2011] EWCA Civ 14, [2011] 1 WLR 2735. The court must balance injustice to the applicant against prejudice to the opposing party, other litigants and the efficient administration of justice. The burden is heavier where the amendment is very late.

3. An amendment is very late where, after a trial date has been fixed, allowing it would cause that date to be lost. Lateness is relative and there is no fixed higher merits threshold. The court must assess the strength of the proposed case together with lateness, consequences and prejudice.

4. The breach of confidence claim was sufficiently pleaded. Clause 6.4, read in context, protected confidential information embedded in Salt’s proprietary designs. The pleaded similarities, the Letter of Intent and the speed of Vard’s design gave the claim reasonable prospects of success.

5. The conspiracy claim was adequately pleaded. Intent to injure could be inferred from the alleged acts and circumstances. The tort did not require predominant intention to injure or identical aims among all conspirators, applying JSC BTA Bank v Khrapunov [2018] UKSC 19 at [13].

6. The new claims substantially overlapped with existing issues. Although disclosure and evidence would expand, wasted costs and disruption were limited. The balance therefore favoured allowing the amendments.