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

The claimants applied during the trial for permission to amend their particulars of claim to broaden a sought declaratory remedy concerning the shareholding of Worldwide Foods (Birmingham) Ltd by removing a qualification that the shares were held on trust for one brother and instead stating that the shares were held and beneficially owned by the five brothers. The court applied the established approach that late amendments should be permitted so the real dispute can be decided provided prejudice to the other party can be compensated, citing the principle in Cobbold v Greenwich LBC.

The judge found the application, though made mid-trial, would not require an adjournment or substantially extend the trial, and any prejudice could be addressed by costs. Procedural concerns (including statements of truth and potential effects on credibility) were noted but were not sufficient to justify refusal. Permission to amend was granted and the court dispensed with further service and (unless requested) the need for an amended defence.

This application arose on day 34 of a preliminary issues trial in a Companies Act 2006 derivative claim concerning several Worldwide Foods companies controlled by five brothers. The applicants (Pervez Alam, Zahid Iqbal and Shahid Iqbal) sought permission to amend their particulars of claim to modify a declaratory claim so that it stated the Birmingham company shares were "held and owned" by the five brothers, deleting an earlier qualification that they were held on trust for Pervez.

The issues framed were: (i) whether a late amendment during the middle of trial should be permitted; (ii) whether the amendment would cause delay or require an adjournment; (iii) whether the amendment would unfairly prejudice the other parties; (iv) procedural concerns including statements of truth and effects on witness credibility; and (v) the appropriate remedy if prejudice arose (principally costs).

The court reasoned that the touchstone was whether the amendment would cause delay or adjournment and whether any prejudice could be compensated. The judge accepted that the pleadings did not precisely mirror the amended declaration but concluded that the evidence already disclosed and the thorough cross-examination to date meant the amendment would not produce unfair surprise or add materially to trial length. The court noted procedural shortcomings and credibility questions but held these could be addressed by directions and costs rather than refusal. The judge relied on the established principle that amendments should ordinarily be allowed to enable resolution of the real dispute (referring to Cobbold v Greenwich LBC). Permission to amend was granted, service was dispensed with unless requested otherwise, and the court indicated costs consequential on the amendment would likely be borne by the applicants' opponents unless persuaded otherwise.

The application for permission to amend the particulars of claim was allowed. The court concluded the late amendment would not cause adjournment or substantial delay, any prejudice could be compensated by costs, and it was just and fair to permit the amendment so the real dispute between the parties can be adjudicated upon. Procedural concerns (including statements of truth and effects on credibility) were noted but did not justify refusal. The court dispensed with further service and did not require an amended defence unless requested.