Benyatov v Credit Suisse Securities (Europe) Ltd

Permission to amend a statement of case should be granted only where the proposed case has a real, rather than fanciful, prospect of success and is adequately clear and particularised. Where limitation is engaged, the court must consider whether the amendment is out of time, adds a new cause of action, arises from the same or substantially the same facts, and should be allowed in the exercise of the discretion. A late amendment introducing a statute-barred claim will not ordinarily be permitted where the claimant cannot show an arguable basis for postponing limitation under the Limitation Act 1980. Material already supplied in replies to requests for further information may be incorporated into a pleading without reopening an earlier strike-out decision, although deficiencies may justify further particulars rather than strike out.

The claimant sought permission to amend his Particulars of Claim in a long-running claim against his former employer. The proposed amendments included new contractual duties concerning risk assessment, an indemnity claim, expanded tortious allegations, and incorporation of material from replies to requests for further information and a schedule of loss.

The defendant applied to strike out passages said to be irrelevant, insufficiently particularised, or inconsistent with the court’s earlier judgment. The central issues were whether the proposed contractual claims were statute-barred, whether limitation could be postponed under section 32 of the Limitation Act 1980, whether the amendments arose from the same or substantially the same facts, and whether the remaining amendments had a real prospect of success.

1. Outcome. The defendant’s strike-out application failed. Permission to amend was granted generally, subject to refusal of the proposed new contractual causes of action and specified paragraph-level amendments. A clean amended pleading was to be prepared.
2. The applicable approach was governed by the overriding objective, the requirement for concise Particulars of Claim, and the principles in Habibsons Bank Ltd v Standard Chartered Bank (Hong Kong) Ltd [2010] EWCA Civ 1335, Slater & Gordon (UK) Ltd v Watchstone Group plc [2019] EWHC 2371 (Comm), and Brown v Innovatorone Plc [2011] EWHC 3221 (Comm).
3. The proposed contractual risk-assessment claims were prima facie statute-barred. The claimant had not provided sufficient evidence of deliberate concealment under section 32 of the Limitation Act 1980. Failure to answer questions, where there was no obligation to answer them, was a fragile basis for deliberate concealment. The four-stage approach in Hyde v Nygate [2019] EWHC 1516 (Ch) was satisfied at the same-facts stage, but the discretion should not be exercised because the claims were extremely weak on limitation grounds and the claimant could pursue the substance of the case in tort.
4. Incorporating material from the replies to requests for further information was a permitted re-housing exercise, not a new claim. The defendant could seek further particulars where necessary, but could not use the exercise to obtain a wider strike-out.
5. The proposed tort amendments, the indemnity amendment, and the pleading of loss of FCA authorisation were arguable and sufficiently connected with the existing case. The court declined to require the claim to be confined prematurely to financial loss or to a particular legal characterisation of the loss.