Airwave Solutions Limited v The Secretary of State for the Home Department & Anor

Permission to amend a statement of case is discretionary and must be determined by applying the overriding objective. A late amendment must have a real, rather than fanciful, prospect of success, but the court must not conduct a mini-trial. An amendment is very late where allowing it threatens the trial date. The court must assess the nature of the amendment, the explanation for its timing, the parties’ wasted and consequential work, and the wider interests of court users. Particulars of alleged contractual breaches must identify the acts or omissions said to constitute breach with sufficient clarity to enable a fair response and preparation of evidence. Amendments may be permitted subject to concise, focused particularisation and case management directions.

The claimant challenged the defendants’ decision to extend the operation of the existing emergency-services communications network. The defendants relied, among other matters, on alleged failures by Motorola under a terminated contract for replacement network services and sought permission to re-amend their defence. The claimant opposed the application on grounds of lateness, inadequate particularisation, irrelevance and prejudice to the expedited trial. The court considered whether the proposed amendments constituted a new case, whether they had a real prospect of success, whether they threatened the trial timetable, and whether the allegations were pleaded with sufficient clarity.

1. Permission granted in part. The defendants were permitted to re-amend their defence, subject to specified deletions, re-drafting and further concise particulars. Permission was refused for the proposed Wave 7000 allegations. The Defence Amendment Application was adjourned for further case management; the other applications were also adjourned and costs were reserved.
2. The application was late but not very late. The defendants had relied on allegations concerning Motorola’s contractual performance from the original defence, and the amendment application developed from disclosure disputes and the related Lot 2 application. The proposed amendments therefore did not amount in reality to a new case.
3. The court applied the merits threshold identified in CNM Estates and Elite Property Holdings. The proposed allegations concerning Kodiak had a real rather than fanciful prospect of success. The court did not decide their substantive merits and did not conduct a mini-trial.
4. The existing eight-day trial window could be retained if the allegations were narrowed and concisely particularised. Disclosure was capable of being confined, the witness evidence was likely to be limited, and expert evidence was not presently required.
5. The Wave 7000 allegations were not permitted because the relevant issues pre-dated the agreed substitution of Kodiak and appeared largely historic and of no direct relevance to the defendants’ case under regs. 32 and 72 of the Public Contracts Regulations 2015.
6. Allegations of contractual breach could not be pleaded by broad assertions followed by non-exclusive references to documents. The defendants had to state concise particulars of the alleged breaches. A final limited period was granted to provide summaries of the allegations said to arise from the identified reports and proposals; otherwise those amendments would be disallowed.

First-instance decision on the defendants’ application for permission to re-amend the defence. No appellate history was stated in the judgment.