UNICREDIT BANK A.G. v EURONAV N.V.

A consent order permitting an amended defence is construed objectively by reference to its language and relevant background. Where the order does not expressly permit amendments arising from disclosure, the court will generally not imply such permission, particularly where the proposed amendments advance a new case.

Permission for a late amendment requires the applicant to justify the delay, demonstrate the strength of the proposed case and explain why justice requires the amendment. The court must balance the prejudice to the applicant against the need for finality and the prejudice to the opposing party, including disruption to trial preparation and the trial date.

UniCredit Bank A.G. brought a claim against Euronav N.V. arising from the alleged delivery of cargo without production of the bill of lading. Euronav sought to amend its Defence to plead that the cargo was delivered to, or to the order of, sub-buyers linked to Gulf and that UniCredit would have suffered the same loss even if Euronav had complied with its obligations.

The amendments were said to arise from disclosure made pursuant to a consent order approved on 14 January 2022. UniCredit contended that the order permitted only amendments consequential on UniCredit’s amendments concerning a counterfactual valuation scenario. Alternatively, Euronav sought permission to amend at a late stage, shortly before trial.

1. Construction of the consent order. The 14 January Consent Order was a formal document prepared by legally represented parties. Its meaning was to be determined objectively by considering its language and factual context. Clause 3 did not state, expressly or by necessary implication, that Euronav could make additional amendments arising from disclosure. The order dealt with the new counterfactual case, related evidence and disclosure, but contained no express or obvious link between the disclosure and unrestricted amendments to liability. The order therefore permitted only the usual consequential amendments. The proposed liability amendments fell outside its scope.
2. Late amendment principles. The court adopted the principles summarised in CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345 (TCC). Lateness is relative and includes amendments requiring duplication of work or revisiting completed stages. A very late amendment may threaten the trial date. The applicant must explain the delay, identify the strength and clarity of the new case, and establish why justice requires permission. The court must balance the competing prejudice.
3. Application. The proposed amendments were not merely a refinement. They advanced a positive and materially different case concerning delivery to the sub-buyers and causation. Euronav had not shown why that case could not have been advanced earlier, particularly after its response to a request for information in July 2021. It was assumed that the amendments had a reasonable prospect of success, but that was insufficient.
4. Prejudice and disposition. The application was made approximately three weeks before trial. UniCredit had prepared its case on the footing that the new allegations were not advanced and would have insufficient time to investigate them and revise its trial preparation. Euronav could rely on the recent disclosure in support of its existing case. The balance of justice favoured refusal. Permission to amend was refused.