EasyGroup Limited v Beauty Perfectionists Limited & Ors

An amendment sought shortly before trial should be assessed by balancing lateness, the explanation for it, and the prejudice likely to be caused. An amendment is particularly late where it threatens the trial timetable or requires a party to revisit completed disclosure, evidence or other significant steps. A party seeking the benefit of a late amendment must provide a satisfactory explanation for the delay. Where the amendment introduces a materially wider and more serious case, creates substantial procedural prejudice, and the delay is inadequately explained, justice may require refusal of permission.

This was a pre-trial application by EasyGroup Limited to reamend its response to a request for further information in trademark infringement proceedings against Beauty Perfectionists Limited and others. The proposed amendment would add retail services connected with the sale of cosmetics and fragrances to the services for which EasyGroup claimed that its marks had a reputation.

The defendants argued that the amendment introduced a new case, requiring further disclosure, evidence and preparation shortly before trial. The claimant said that it reflected existing disclosure and evidence and caused no prejudice. The court considered the principles governing late amendments and whether the proposed amendment should be permitted.

1. Application refused. Permission was granted for an unopposed clarification concerning the tax status of retail services, but refused for the proposed amendment concerning reputation in cosmetics and fragrances.
2. The court applied the principles identified in CIP Properties (CIPT) Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345 (TCC). Lateness is relative, but an amendment is late where it could have been advanced earlier, duplicates costs or effort, or requires a party to revisit significant completed steps. It is very late where it threatens the trial date. The history of the amendment and the explanation for delay are important to the balancing exercise.
3. The court also applied the emphasis in ABP Technology v Voyetra Turtle Beach [2022] EWCA Civ 594 that lateness calls for an explanation because otherwise unjustifiable prejudice may result.
4. The proposed amendment materially widened the claimant’s case. It raised a new issue concerning reputation in the sale of cosmetics and would affect the defendants’ approach to disclosure, market-share evidence and expert evidence. Those steps could not realistically be undertaken before the imminent trial.
5. The claimant’s explanation was unsatisfactory and was provided only two days before the hearing. The fact that privileged material or case strategy might be involved did not justify seeking the benefit of the amendment without providing an adequate explanation. Taking account of the new case, the prejudice and the unexplained delay, justice required refusal of the application.

The judgment records that an earlier defendants’ strike-out application was dismissed by the Chancellor in December 2021 and that a subsequent appeal was withdrawn. Those procedural steps concerned the same litigation and were not the subject of this judgment.