Berkeley Square Holdings Ltd & Ors v Lancer Property Assets Management Ltd & Ors (Claimant amendment application) (Rev 1)

Applications to amend pleadings engage the same overriding-objective balancing exercise whether the amendment is late or timely. The court must assess the proposed amendment’s merits, the explanation for its timing, prejudice to each party, disruption to the proceedings, the effect on other court users and the public interest in efficient litigation. Lateness is relative rather than a separate jurisdictional threshold.

An admission may be withdrawn only after considering the applicable procedural factors, with particular attention to the reason for withdrawal and any new evidence. Under CPR rule 16.7, a claimant’s failure to deal with a matter in a reply requires that matter to be proved; authenticity is not readily treated as admitted by implication. Amendments requiring proof of documents shortly before trial may be refused where they create substantial prejudice or lack a realistic prospect of success.

The claimants sought permission to amend their particulars of claim and reply in proceedings concerning payments made by Lancer to two British Virgin Islands companies. The proposed amendments required the defendants to prove the authenticity of two documents: the Becker authority and the 2012 approval.

The defendants opposed one category of amendments. The court considered the principles governing amendments, whether the claimants had previously admitted the authenticity of either document, the effect of the timing of the application, the prospects of proving authenticity and the prejudice caused by disrupting preparations for a forthcoming trial.

1. Amendment principles. Whether to permit an amendment is a discretionary decision governed by the overriding objective. The court must balance injustice to the applicant if permission is refused against injustice to the opposing party, other litigants and the administration of justice if permission is granted. The same relevant factors apply whether an amendment is late, very late or timely. Lateness remains a relative concept.
2. The relevant considerations include the nature of the amendment, the quality of the explanation for its timing, the strength or realistic prospects of the proposed case, wasted and consequential work, prejudice which cannot adequately be compensated by costs, possible disruption to the trial date and the wider public interest in proportionate and efficient litigation. A timely amendment may start the balancing exercise from a more favourable position, but it does not engage a different set of factors.
3. Becker authority. The claimants had not expressly admitted its authenticity. CPR rule 16.7(2) required an unanswered matter in a reply to be proved, and CPR rule 16.7(1) confirmed that failure to file a reply did not itself amount to an admission. Pleading to the contents of a document did not clearly imply admission of its authenticity. The separate mechanism in CPR 32.19 also made the court less willing to infer such an admission from pleadings. The proposed amendment had a reasonable prospect of success, but it was late, would materially disrupt trial preparation and created substantial difficulty in obtaining evidence capable of proving authenticity. The amendment was therefore refused.
4. 2012 approval. The claimants had previously admitted authenticity and faced a heavier burden in seeking to withdraw that admission. The evidence supplied did not provide a sufficient basis for doubting authenticity, and the proposed amendment had no realistic prospect of success. In any event, the likely prejudice to the defendants and disruption before trial justified refusal. The application to amend was dismissed in relation to both documents.

The judgment records procedural steps in the underlying High Court proceedings, including amendments, disclosure and case-management directions. No appellate history is stated.