Eurasian Natural Resources Corporation Limited v Dechert LLP & Ors

An amendment to a pleading is late if it could have been advanced earlier, but lateness remains relative. At an early stage of a quantum phase, before disclosure decisions and evidence have been settled, lateness is more readily excused. The court must balance the injustice to the applicant if permission is refused against the prejudice to the opposing party and other court users if it is granted. Where prejudice is said to arise from lost documents, the court should assess whether they were disclosable, when they became unavailable, whether their loss causes actual prejudice and whether that prejudice outweighs the injustice of refusal. Failure to impose a litigation hold does not itself bar an amendment or establish serious prejudice. The court may allow the amendment and keep fair-trial consequences under review.

ENRC brought proceedings against Dechert LLP and David Gerrard, and separate proceedings against the Serious Fraud Office. Following liability and causation findings in ENRC’s favour, the claims proceeded to a quantum phase.

ENRC sought to amend its claims to recover losses incurred by subsidiaries, principally increased borrowing costs, by claiming diminution in the value of its shareholdings. The respondents accepted that the amendments had a real prospect of success, but relied on delay and the absence of litigation holds over some subsidiary documents. Waksman J refused permission by order dated 14 February 2025. The appeal concerned whether the possible loss of documents justified refusing the amendments at the early case-management stage of the quantum phase.

Appeal allowed. Phillips LJ gave the reasons, with Nugee LJ and Jeremy Baker LJ concurring. The Court of Appeal had already ordered on 23 July 2025 that the disputed amendments be permitted.

1. The governing approach to amendments is the overriding objective. The court must balance the injustice to the applicant if the amendment is refused against the injustice to the opposing party and other court users if it is allowed. The proposed amendment must be arguable, coherent and properly particularised, and may be refused if it has no real prospect of success. The Court relied on the principles summarised in Municipio de Mariana v BHP Group (UK) Limited and others [2024] EWHC 23, CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345 (TCC) and Quah Su-Ling v Goldman Sachs International [2015] EWHC 759.
2. Lateness is relative. The amendments could have been made earlier and were therefore technically late, so ground 5 failed. However, they were sought before disclosure decisions, witness statements and expert reports for Phase 2. Their lateness was consequently more readily excusable, and the respondents had to demonstrate prejudice sufficient to outweigh the substantial prejudice to ENRC if permission were refused.
3. Where prejudice is based on potentially unavailable documents, the court should consider whether the documents were disclosable, whether they ceased to be available during the relevant period, whether their loss caused prejudice, and whether that prejudice outweighed the injustice of refusing the amendment. The Judge had not reached a concluded view on those matters and had insufficient evidence of prejudice at that stage.
4. A litigation hold is required when litigation is in prospect under Civil Procedure Rules PD 31B paragraph 7 and PD 57AD paragraph 3. Failure to impose one does not itself create injustice or an automatic debarring sanction. Prejudice depends on proof that disclosable documents were not preserved and that their loss had prejudicial effects.
5. The Judge had therefore treated an uncertain and unquantified risk as outweighing certain and substantial injustice to ENRC. The amendments should have been allowed, with fair-trial issues kept under review, including the possible use of allowances, adverse inferences or striking out if necessary. It was unnecessary to decide grounds 3 and 4.

1. Court of Appeal (Civil Division): Allowed the appeal and permitted the disputed amendments by order dated 23 July 2025; reasons were handed down on 16 October 2025 in [2025] EWCA Civ 1307.
2. High Court of Justice, Commercial Court: Waksman J refused ENRC’s amendment applications by order dated 14 February 2025, for reasons given in a judgment dated 23 January 2025.
3. Court of Appeal: Males LJ granted permission to appeal.