Getty Images (US), Inc & Ors v Stability AI Ltd

Material facts on which a party intends to rely at trial must ordinarily be pleaded. A general or provisional pleading does not permit a party to introduce an entirely new factual case through evidence or submissions. The court applies the usual rules governing amendments where a proposed statement particularises material facts, including the rules for late and very late amendments.

Permission is especially unlikely close to trial where the proposed case lacks coherence, particularisation, evidential support or a real prospect of success, or would cause substantial prejudice and disruption. A responding party is not required to anticipate an unpleaded case or divert trial preparation to meet a contested amendment. Evidence and cross-examination may support an existing pleaded case, but cannot ordinarily replace pleading of new material facts.

The claimants sought permission to rely on a 91-paragraph statement of case on development and training, served shortly before the scheduled trial. They argued that it was voluntary, fell within their existing pleading and could instead have been addressed in submissions or evidence.

The defendant contended that the statement introduced new material facts, technical allegations, datasets, individuals and infringement allegations. It argued that the application was a very late amendment, unsupported by good reason and incapable of being answered fairly before trial.

The central issues were the status of the proposed statement, whether the rules governing late amendments applied, and whether particular sections should be permitted in the interests of the orderly and fair conduct of the proceedings.

1. Status of the proposed statement. The statement contained both material factual allegations and evidential material. Where it advanced new material facts on which the claimants intended to rely, those facts had to be pleaded. The existing inferential pleading and the reference to disclosure or evidence did not authorise an unrestricted case at trial.
2. Applicable principles. The usual rules governing amendments applied, including the requirements that a proposed case be coherent, properly particularised, supported by evidence establishing its factual basis and have a real prospect of success. These requirements had particular force close to trial. The court also applied the principle that a responding party need not divert trial preparation to meet a case subject to a contested permission application.
3. Prejudice and delay. The application was a very late amendment. The claimants had provided no good reason for the delay. Permitting the new allegations would require further factual investigations, disclosure searches, witness evidence and potentially new expert evidence, causing serious disruption to the forthcoming complex trial. The claimants’ prejudice from exclusion therefore carried less weight.
4. Section-specific decision. Section A was permitted insofar as it remained relevant. Sections C and D were permitted subject to removal of references to the entirely new LAIOCO and coyo700m datasets, save for material forming part of the pleaded LAION-2B dataset, and removal of proposed adverse inferences based on absent records. Permission was refused for sections B, E and F because they were unparticularised, speculative, unsupported, procedurally unfair or otherwise failed the applicable merits and case-management requirements.
5. The claimants remained entitled to use disclosure documents for cross-examination and arguments consistent with their pleaded case. A further amendment application might be required if cross-examination materially altered that case.