JSC Commercial Bank “PrivatBank” v Igor Valeryevich Kolomoisky & Ors

Permission to make a late amendment depends on where the balance of justice and injustice falls, having regard to the overriding objective. The court considers the lateness and explanation for it, the clarity and arguability of the amendment, and the prejudice to both sides. Arguability and potential importance are relevant but do not, by themselves, justify permission.

Where permission is granted, the court may impose proportionate conditions under CPR 3.1(3), including payment into court, where necessary to control the future conduct of the litigation and address the additional work caused by the late amendment.

The first defendant applied to amend his defence shortly before trial. The claimant opposed amendments concerning the currency in which its loss should be assessed and allegations based on the claimant’s conduct in Ukrainian proceedings.

The court considered whether the amendments were arguable, whether their lateness was adequately explained, the resulting disruption and costs, and the prejudice to the defendant if permission were refused. The court also considered whether permission should be conditional on payment into court and provision of expert instructions.

1. Permission granted, subject to conditions. The balance of justice fell narrowly in favour of permitting both opposed categories of amendment. The amendments were arguable, and their admission would not imperil or require adjournment of the trial. Their potential significance was not, however, decisive by itself.
2. Following the approach restated in ABP Technology v Voyetra [2022] EWCA Civ 594, approving the principles summarised in CIP Properties v Galliford Fry [2015] EWHC 1345, lateness is relative. The court must consider whether the amendment could have been advanced earlier, the reason for delay, its clarity, and the prejudice caused to the resisting party, including duplicated work and pressure before trial. Prejudice to the amending party is also relevant, but carries less weight where it results from that party’s own conduct.
3. The proposed currency amendments were late and the explanation was weak. The first defendant had proceeded for years on the basis of a US dollar claim, although the claimant should have explained its use of that currency under CPR PD16 para 9.1 and had been put to proof on the issue. The court therefore refused permission for the words “in particular but without limitation” in paragraph 83G, because they created unacceptable uncertainty.
4. The court held that conditions could be imposed where they were a proportionate and effective means of controlling the future conduct of the litigation. Payment into court was not confined to a simple estimate of costs technically caused by the amendment. In the circumstances, £600,000 was an appropriate payment reflecting the likely additional work and the consequences of the very late application.
5. The first defendant was ordered to pay the costs of and caused by the amendments and to provide the instructions given to Mr Davidson as soon as practicable. No unless order was made against Mr Davidson.