Keadby Generation Ltd v Promanex (Total FM & Environment Services) Ltd & Anor

Permission to amend a statement of case shortly before trial requires a heavy burden to be discharged. The applicant must explain the delay, show that the proposed case has sufficient strength and clarity, and demonstrate that justice can be achieved without unfair prejudice or jeopardising the trial date. Amendments may be allowed where they extend an existing case, are supported by factual and expert evidence, and can be addressed within the available timetable. A speculative alternative theory lacking an evidential foundation, expert support or sufficient clarity may be refused, particularly where sought very late.

The claimant sought to re-amend its particulars of claim in a substantial fire claim concerning works at a power station. The proposed liability amendments concerned additional rubber repair work, a possible level 5 origin for the fire, and a crevice ignition mechanism. The defendants opposed the amendments on grounds of lateness, inadequate pleading and insufficient time for investigation and expert preparation. The court determined which amendments could fairly proceed before the listed trial.

1. The application was allowed in part and refused in part. The court applied the guidance in CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345 concerning late amendments.
2. The amendments were very late because the trial was due to begin in just over six weeks. The claimant therefore bore a heavy burden to explain the delay and establish that the defendants would not suffer injustice. Relevant considerations included the explanation for lateness, the strength and clarity of the proposed case, the parties’ ability to investigate it, and whether permission would place the trial date at risk.
3. The amendments concerning rubber repair works were permitted. They extended the existing reliance on rubber dust as a possible source of ignition. The factual and expert evidence already addressed the repairs and their possible contribution, and any further testing could be completed within the available period.
4. The proposed level 5 theory was refused. It was speculative, unsupported by a sufficient factual account of the scaffolding, not supported by the claimant’s expert, and insufficiently clear to enable the defendants to identify the evidence needed to meet it.
5. The crevice mechanism was permitted. It had been articulated by the claimant’s expert, included in the experts’ joint statement and considered in the reports. The defendants therefore understood the case and could respond to it without material prejudice.
6. The defendants were permitted to seek clarification and information arising from the amendments, but were required to do so promptly. The experts were directed to meet as soon as possible to identify any further testing needed before trial.