Contra Holdings Ltd v M J C Bamford

A proposed amendment after judgment, particularly one seeking to revive a claim defeated by strike out or summary judgment, requires a real prospect of success and a sufficient degree of conviction. The applicant must also show exceptional circumstances or strong or satisfactory reasons for failing to amend at the proper time. The court must balance the applicant’s potential injustice against prejudice to the opposing party, finality, and other court users. A late amendment will generally be refused where the proposed case could have been advanced before or during the earlier hearing and lacks convincing merit.

The claimant applied, at a consequentials hearing after its claim had been struck out on the defendant’s strike out or summary judgment application, for permission to amend its pleading to allege fraudulent misrepresentation.

The proposed case was that the defendant dishonestly represented an intention to proceed with Project Crakemarsh when no such intention existed. The claimant had previously disavowed any fraud case, despite relying on related statements at the earlier hearing. The application was made about two months after judgment. The issue was whether the claimant had shown sufficient merit and a proper reason to reopen the concluded proceedings.

1. Application refused. The claimant was not permitted to amend after judgment.
2. The starting point was that the proposed amendment had to be arguable, coherent, properly particularised, supported by evidence, and carry a real prospect of success or sufficient degree of conviction. The proposed fraud case failed that threshold. The pleaded facts and evidence showed that substantial work had been undertaken on Project Crakemarsh, which undermined the assertion that there had never been an intention to implement it. The defendant’s witness statement did not reasonably amount to an admission of such absence of intention.
3. The court adopted the approach in Stewart v Engel [2000] 1 WLR 2268. Before permitting an amendment after judgment, the court should look for exceptional circumstances or strong or satisfactory reasons for the failure to apply at the proper time. No such reason existed. The claimant could have amended before the earlier hearing, during it, or promptly afterwards.
4. The principles concerning late amendments in Bioconstruct GmbH v Winspear [2020] EWHC 2390 (QB) and Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm) were relevant. The claimant’s previous clear disavowal of fraud, the long history of the dispute, the opportunity to advance the case earlier, and the lack of convincing merit all weighed against amendment.
5. The discretionary balance favoured finality. The defendant had a legitimate expectation that the claimant would put forward its complete case in order to resist the strike out or summary judgment application. Reopening the proceedings with a new case would prejudice the defendant and other court users.