Illiquidx Limited v Altana Wealth Limited & Ors

Permission to amend a statement of case requires more than an arguable case. The proposed amendment must carry some degree of conviction, be coherent and properly particularised, and have an evidential basis. The court must then balance the justice and injustice of allowing or refusing the amendment, having regard to its timing, explanation, effect on the trial date, wasted work and prejudice to the opposing party and other court users. The later the amendment, the heavier the burden on the applicant. A party which has deliberately adopted a particular formulation and allowed the other side to prepare on that basis faces significant difficulty in changing its case shortly before trial.

Illiquidx brought claims for breach of confidence, infringement of trade secrets, breach of contract and copyright infringement concerning information disclosed during a joint venture relating to Venezuelan distressed debt.

The claimant applied shortly before a ten-day trial to amend its confidential Annex 1. It sought to rely on material in paragraphs A5 to A12 as additional components of the pleaded Business Opportunity and as confidential information. The defendants opposed the application, having prepared their case on the basis that the confidential components were confined to the pleaded Detail.

The central issues were whether the proposed amendment was sufficiently coherent and particularised, and whether the balance of justice favoured allowing it at that stage.

1. The application was refused. The proposed amendments did not satisfy the merits and pleading requirements applicable to amendments. They did not identify clearly what information in the proposed “nuggets” was confidential or what was relied on as a component of the Business Opportunity. Narrative accounts of telephone calls and meetings were not separated from the alleged confidential information.
2. Under the approach stated in Kawasaki KK v James Kemball [2021] EWCA Civ 33, an amendment must be more than merely arguable and must carry some degree of conviction. It must be coherent, properly particularised and supported by evidence establishing a sufficiently arguable factual basis. The particularisation requirement was not met. The court did not need to determine finally whether the evidence supported the proposed case.
3. The court applied the balancing approach in Quah v Goldman Sachs International [2015] EWHC 759. The overriding objective required consideration of the claimant’s prejudice if refused, against the prejudice to the defendants and other court users if allowed. Relevant matters included the timing and history of the application, the absence of a good explanation for delay, the risk to the trial date, wasted preparation, further pleading and disclosure, and the burden placed on the defendants.
4. Lateness was relative rather than an absolute category. The claimant had adopted the Detail formulation after earlier procedural decisions, confirmed that position in correspondence and in its response to a Part 18 request, and allowed the defendants to prepare on that basis. After four years and substantial expenditure, the proposed change would cause very significant prejudice and might require an adjournment. The balance of justice therefore fell firmly against amendment.
5. The court declined a proposed exception concerning particular 9(3)(i). That paragraph stood or fell on its existing terms. The claimant could argue at trial whether its reference to oral conversations satisfied the required level of particularisation.

The judgment was a first-instance pre-trial ruling. The judgment records earlier decisions concerning the formulation of the claimant’s confidential information, including a decision by Deputy Master McQuail and an appeal decision by Miles J, but no appellate history of this judgment is stated.