BARROWFEN PROPERTIES LIMITED v GIRISH DAHYABHAI PATEL

Permission to adduce further evidence may be construed broadly where the court reserved consequential issues after a late amendment by the opposing party. The scope of an order is determined objectively in its context. A party may amend its case after judgment but before final determination of reserved matters where the issue has not been finally decided and the amendment is not an abuse of process. The court must balance injustice to the applicant against prejudice to the opponent and other court users, considering the strength of the proposed case, the explanation for delay, the hearing date and whether prejudice can be compensated in costs.

The claimant had succeeded on liability, causation and quantum in earlier judgments, but consequential issues remained concerning additional finance costs when assessing the benefit obtained from a revised development scheme. The second defendant applied to exclude factual and expert evidence served by the claimant. The claimant applied for permission to re-re-amend its Reply to plead additional debt and equity finance costs. The central issues were the scope of the earlier permission and directions, whether the court had already decided the equity-funding issue, whether the Barrell jurisdiction was engaged, and whether permission to amend should be granted.

1. Disposition. S&B’s application to exclude the disputed paragraphs was dismissed. Barrowfen was permitted to re-re-amend its Reply. Consequential directions and costs were reserved.
2. Scope of permission. The reservation in the earlier Judgment and paragraph 3 of the Order were expressed in general terms and covered all additional financial costs, including capital and equity costs. Their interpretation was objective. The broader wording was appropriate because the issue had arisen late and the claimant had lacked a full opportunity to identify the evidence required.
3. Earlier decision and abuse of process. The court had not finally determined the reserved matters or made a final money judgment. Following Macleod v Mears, the Barrell jurisdiction was not engaged. The proposed equity-cost argument was not inconsistent with the earlier finding that the claimant had to give credit for increased developer’s profit, and permitting it was not a Henderson v Henderson abuse of process.
4. Late amendment. Applying the principles stated in Quah Su-Ling v Goldman Sachs International, the balance favoured permission. The proposed case had a real prospect of success because the development appraisals included debt and equity funding costs, and the claimant had factual and expert evidence supporting its position. The hearing date would not be lost, the delay was sufficiently explained, and the prejudice to S&B could be compensated in costs.
5. The judge stressed that the decision concerned only the scope of the reserved matters and the real prospect of success of the proposed amendments. It did not determine the ultimate merits of the disputed finance-cost issues.