IBM United Kingdom Limted v LzLabs GmbH & Ors

The court may extend directions and adjust a fixed trial date where necessary to secure a fair hearing, but must balance preparation needs against delay, prejudice, cost and court resources. A late amendment must be arguable, coherent and sufficiently particularised, with a real prospect of success. Very late amendments carry a heavy burden, especially where the trial date is threatened.

Where limitation is arguable, amendments and joinder may be permitted on terms that exclude time-barred claims and prevent an advantage from the relation-back rule. Applications raising disputed factual issues should not be determined by mini-trial. The court also confirmed the pleading requirements for procurement of breach and unlawful means conspiracy, and that relevance of privileged communications does not itself waive privilege.

The claimant alleged that the defendants used IBM mainframe software in breach of licence terms to develop competing software. It sought amendments adding claims for procurement of breach, unlawful means conspiracy and deliberate concealment, and sought to join John Jay Moores as a further defendant.

The judgment also determined applications concerning the trial timetable, service out, contractual and statutory limitation, privilege, strike-out, further information and disclosure. The central issues were whether the amendments and joinder had a real prospect of success, whether limitation prevented them, whether the proposed trial timetable remained fair, and whether the jurisdictional and procedural applications should succeed.

1. Trial management. The court had wide powers under CPR 3.1. Applying the overriding objective in CPR 1.1, it had to balance a reasonable opportunity to prepare and present the case against delay, cost, prejudice, loss of the fixed trial date and court resources. The trial was not adjourned, but its start was moved to 29 April 2024, the estimate was increased to 32 sitting days, and consequential directions were revised.
2. Amendments and joinder. Under CPR 17.1, 17.3 and the relevant limitation provisions, an amendment should be refused if it had no real prospect of success. The court should not conduct a mini-trial. The proposed allegations were arguable, cogent and sufficiently particularised. The claimant had adequately explained the delay, and the overlap between the existing claims and the proposed claims supported joinder. Permission was granted, subject to limitation safeguards and the jurisdiction challenge.
3. Limitation. Section 35 of the Limitation Act 1980 and CPR 17.4 and 19.6 restricted amendments or joinder after expiry of the limitation period. Where limitation could not fairly be determined on the application, the court could permit claims only so far as they were not statute-barred, thereby avoiding an unwarranted relation-back advantage. The proposed claims against Mr Moores were allowed on that basis, with the contractual undertaking incorporated into the pleading.
4. Torts and pleading. Procurement of breach required breach, procurement or inducement, knowledge or recklessness as to the contractual term, and knowledge that the conduct would cause breach. Unlawful means conspiracy required combination, intention to injure, unlawful acts pursuant to the combination and causation of loss. Allegations of knowledge, deliberate wrongdoing and dishonesty had to be pleaded clearly and precisely, but their proof was for trial.
5. Jurisdiction and privilege. The claims disclosed a serious issue to be tried and satisfied the applicable service-out gateways, so the jurisdiction challenge failed. The defendants were not entitled to further information about privileged communications. Relevance alone did not waive privilege, and a solicitor’s state of knowledge was not itself privileged.
6. The applications to amend, join Mr Moores and serve out were granted subject to the stated conditions. The jurisdiction challenge and the applications for further RFI information and disclosure concerning Mr Knight were dismissed.

First-instance procedural judgment. The judgment itself records earlier case-management directions before Waksman J and an earlier disclosure judgment at [2023] EWHC 2142.