The Leicester Bakery (Holdings) Ltd v Ridge And Partners LLP (Rev 1)

Permission to amend a statement of case should be refused where the proposed claim does not have real prospects of success and lacks a coherent pleaded causal link between breach and loss. The test is materially the same as the summary judgment test. Lateness is relative and must be assessed in the procedural context, including whether the amendment could have been advanced earlier, whether it requires completed case-management steps to be revisited, and whether a satisfactory explanation exists. An amendment which is unclear, requires substantial further particularisation, and would make disclosure, evidence and costs budgeting difficult is inconsistent with the overriding objective.

The claimant sought delivery up of project documents, damages for breach of contract and fiduciary duty, and related relief against its former consultants and employer’s agent. The defendant applied for summary judgment or strike-out of the damages claim. The claimant applied for permission to amend its Particulars of Claim to plead loss arising from a later adjudication concerning extensions of time and a subsequent arbitration. The court considered whether the amended claim had real prospects of success and, if so, whether the amendment should be permitted having regard to lateness, clarity, prejudice and the overriding objective.

1. Application to amend. Permission was refused. It was common ground that the proposed claim had to have real prospects of success, in the same sense as the summary judgment test, as stated in SPR North Ltd v Swiss Post International (UK) Ltd [2019] EWHC 2004 (Ch) at [5].
2. The proposed amendment did not adequately plead causation. It asserted that the claimant’s inability to respond in the March adjudication resulted from the defendant’s failure to provide documents, but did not identify the documents said to have caused the prejudice or explain how their absence caused the adjudicator’s decision or the claimed prolongation costs. A fiduciary-duty claim still required a causal link between breach and loss.
3. The pleaded claim for liquidated damages and prolongation costs also failed to confront the effect of the later arbitration. Properly determined contractual entitlement to extensions of time or prolongation costs would not itself establish loss caused by any failure to provide documents.
4. The amendment was late in its particular procedural context. The relevant considerations, drawn from CIP Properties (AIPT) Limited v Galliford Try Infrastructure Ltd. [2015] EWHC 1345 (TCC) at [19], included whether it could have been advanced earlier, the history and explanation for delay, and whether completed case-management steps would have to be revisited. The proposed amendment was insufficiently clear and would make disclosure, evidence, expert evidence and costs budgeting difficult. Allowing it would be inconsistent with the overriding objective.
5. Summary judgment and strike-out. The existing damages claim based on the staircase adjudication had no real prospect of success. Before that adjudication there had been no demand under the Confidentiality Agreement or fiduciary-duty demand capable of supporting the pleaded breach, and the claimant had not identified any recoverable loss. Summary judgment was granted on, and/or the following paragraphs were struck out: paragraph 10 except its first sentence, paragraphs 16.4 to 16.7, 17, 18, 20, 22 and 23 of the Particulars of Claim, and paragraphs 29 to 33 of the Reply. The remaining paragraphs concerning the factual background, document demands and alleged breach were left standing because the application for a final mandatory injunction remained live.

First-instance decision. The summary judgment application had previously been adjourned by HHJ Bird, but no appeal was determined.