Global Display Solutions Ltd & Ors v NCR Financial Solutions Group Ltd & Ors

Permission to amend pleadings is discretionary and must be determined by applying the overriding objective. A very late amendment carries a heavy burden, particularly where it threatens a fixed trial date, but lateness is relative. The court must assess the proposed case, the explanation for delay, the work already undertaken, the consequences of allowing the amendment and the competing injustice to each party and other court users. Amendments may be allowed where they clarify legal arguments based on facts already pleaded and in issue, cause no material expansion of the case and do not require an adjournment. A genuinely new factual issue introduced at trial may be refused, although related questioning may remain permissible on pleaded issues or credit.

The claim arose from the termination of a long-standing supply relationship between Global Display Solutions Ltd & Ors and NCR Financial Solutions Group Ltd & Ors. The claimants sought to amend their pleadings during the trial in relation to conspiracy, intimidation, alleged false forecasts, threats and a factory visit.

The defendants opposed the amendments on grounds including lateness, lack of particularisation, expansion of the factual and legal case, and prejudice to trial preparation. The central issue was whether the amendments were permissible clarification of matters already pleaded and in issue, or introduced new issues too late.

1. The application was granted in part. The amendments were considered under the discretionary principles stated in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm), including the overriding objective, the heavy burden attaching to very late amendments, the importance of fixed trial dates, the explanation for delay and the practical consequences for both parties.

2. Most amendments were permitted. They made only small incremental changes, did not introduce a new cause of action and relied on facts already pleaded, accepted or in issue. Where facts have been pleaded and are to be explored at trial, a party may rely on the full body of those facts in support of an existing cause of action, even if internal cross-referencing might previously have suggested a narrower case. Refusing such amendments would create an artificial constraint on the determination of the existing issues, while allowing them caused no substantial injustice to the defendants.

3. The amendments extending the intimidation case to earlier conduct and the conspiracy case to later conduct were allowed. The court did not determine at this interlocutory stage whether the amended intimidation case was legally sustainable, including whether a threat was necessary, and expressed no view on that issue.

4. The proposed reference to an earlier factory visit in November 2010 was refused. It was a new pleaded factual issue raised too late, more than ten years after the event, and the existing pleading had not required its investigation. Questions concerning that visit might nevertheless be asked insofar as they were relevant to the pleaded February 2011 visit, the factual context or a witness’s credit.

5. The defendants were permitted to serve responsive amendments if necessary. They could also ask their witnesses further questions in examination-in-chief without putting that evidence into supplemental written statements.

First-instance decision. No prior appellate decision is stated in the judgment.