Pervez Alam & Ors. v Mohammed Arshad Alam & Ors.

Permission to amend a statement of case during trial may be granted where the amendment better reflects the real dispute and can be accommodated without delaying the trial or requiring an adjournment.

The court must balance fairness, the risk of surprise or prejudice, the need to determine the real issues, and the overriding need for finality. Prejudice caused by the amendment may be addressed through directions and an appropriate costs order. The lateness of the application is important, but is not by itself determinative.

The claimants sought permission during the trial of preliminary issues to amend their particulars of claim and prayer for relief in derivative proceedings concerning shares in Worldwide Foods (Birmingham) Ltd.

The proposed amendment removed a qualification from the declaration sought and clarified that the shares were alleged to be held and beneficially owned by the relevant brothers absolutely, rather than being held on trust for Pervez Alam. The amendment did not correspond precisely with the existing factual allegations, and the defendants opposed permission on grounds including lateness, inconsistency and prejudice.

The central issue was whether permission should be granted notwithstanding that the trial was already under way.

1. Application allowed. Permission was granted to amend the particulars of claim and prayer for relief. Service was dispensed with unless requested, and the defendants were permitted, but not required, to file an amended defence.
2. The application was not determined merely by applying the usual principles applicable to late or very late amendments. The principal consideration was whether the amendments were likely to cause delay to the trial or require an adjournment. There was no suggestion that either would result, and the amendments were not expected substantially to extend the trial.
3. The court applied the principle in Cobbold v Greenwich LBC [1999] EWCA Civ 2074 that amendments should generally be allowed so that the real dispute can be adjudicated, provided prejudice caused by the amendment can be compensated in costs.
4. Fairness required the court to balance the risk of surprise and prejudice against the risk that rigid adherence to the pleadings would prevent determination of the real dispute after a lengthy trial. The detailed cross-examination already undertaken meant that the risk of issues being lost or obscured was limited.
5. The amendment could affect credibility and require further examination and re-examination. Those matters did not justify refusal because procedural defects could be addressed by directions and financial prejudice could substantially be met by an order for consequential costs.
6. The court also emphasised the need for finality. In a complex case involving a range of possible trust arrangements, it was desirable, where fairly open on the evidence, to permit a determination broadly aligned with the parties’ actual positions or an intermediate position between them.