Advinia Care Homes Ltd v BUPA Care Homes Investments (Holdings) Ltd & Ors

Permission to amend pleadings shortly before trial is discretionary. The court must balance injustice to the applicant against prejudice to the opposing party, other litigants and the administration of justice. A heavy burden lies on an applicant whose late amendment risks losing a fixed trial date. Withdrawal of an admission requires consideration of all the circumstances, including the explanation for the admission, new evidence, party conduct, prejudice, prospects of success, procedural stage and the administration of justice. A late amendment may nevertheless be allowed where it arises from the existing factual case, causes no material prejudice and can be absorbed without losing the trial. Amendments which merely tidy or clarify an existing case may be permitted, while open-ended new pleading shortly before trial may be refused.

Advinia Care Homes Limited and Advinia Health Care Limited applied for permission to amend their pleadings in proceedings concerning the sale of care-home businesses by companies in the Bupa group. They also sought permission to withdraw an admission that the First Defendant had succeeded to BCH Limited’s rights and obligations under the English BTA, and sought an adjournment if amendments were allowed.

The proposed amendments concerned succession, alleged negligent misstatement relating to Scottish care-home wet-room requirements, unjust enrichment and loss. The application was heard shortly before a two-week trial listed for February 2021. The central issues were whether the admission should be withdrawn and whether the proposed amendments could fairly be allowed without imperilling the trial.

The court dismissed the application to withdraw the admission and refused permission to plead the Succession Issue. It allowed the amendments concerning negligent misstatement, unjust enrichment, loss and damage, and a targeted clarification concerning information supplied close to the deadline. It disallowed an open-ended amendment.

1. Withdrawal of admission. The admission that the First Defendant had succeeded to BCH Limited’s rights and obligations was a material admission on which Advinia had positively relied in its pleaded case, interim application and summary-judgment application. Under