Malcolm Cohen & Anor (as joint liquidators of The Food Retailer Operations Limited) v Co-operative Group Limited & Ors

Permission to amend after expiry of limitation is subject first to the mandatory test in Civil Procedure Rules 1998 Part 17.4. A proposed amendment introducing a materially different transaction may constitute a new cause of action even where it arises from the same agreement and statutory claim. The amendment may nevertheless pass the same-facts stage, leaving discretion to the court.

A late amendment is “very late” where it creates a real threat to the existing trial date. The court must then weigh prospects of success, proper particularisation, the explanation for delay, prejudice to the parties and impact on other court users. Substantial prejudice, inadequate particulars and an unexplained delay justified refusal of permission.

The joint liquidators sought declarations under sections 238 and 239 of the Insolvency Act 1986 concerning a 2015 restructuring transaction. Their existing case alleged the disposal of properties and assets at an undervalue and the giving of preferences.

After Fancourt J refused permission for business valuation evidence because no business sale was pleaded, the liquidators applied to amend their points of claim to allege that the transaction also included the sale of a food retail and petrol sales business as a going concern. The application was made after the relevant limitation period and before a seven-week trial. The issues were whether the amendment was jurisdictionally barred, whether it threatened the trial date, and whether permission should be granted in the exercise of discretion.

1. Limitation. The court applied the four-stage test in Geo-Minerals GT Ltd v Downing: whether the amendment was arguably out of time; whether it added or substituted a new cause of action; whether that cause arose from the same or substantially the same facts; and, if so, whether permission should be granted. The first stage was satisfied because the six-year limitation period applied. The proposed business-sale claim introduced a new cause of action. The transaction, the consideration provided and the subject matter of the transfer were material facts in claims under sections 238 and 239 of the Insolvency Act 1986. The amendment therefore failed at stage two.
2. The amendment nevertheless passed stage three. It concerned the same agreement, parties, transaction and stated consideration. The respondents had already investigated matters relevant to the scope and effect of the agreement, including FROL’s dependence on group services. The proposed claim did not require investigation of facts completely outside the ambit of the existing claim.
3. Lateness and discretion. “Very late” means an amendment which creates a real threat to the existing trial date. Absolute certainty that the date will be lost is unnecessary. The proposed amendment was very late because it would seriously disrupt preparation, require business valuation evidence before solvency evidence, and create a real and appreciable risk that the trial would be vacated.
4. The amendment had a real prospect of success, but was inadequately particularised. It did not properly identify the nature and extent of the alleged business or the elements to be valued. The liquidators had no good explanation for failing to plead the case earlier. The prejudice caused by refusal was substantial, but was diluted by the applicants’ responsibility for the delay. The prejudice to the respondents and other court users, including disruption, pressure, fading memories and loss of the trial fixture, outweighed it.
5. Permission to amend was refused. The consequential application for permission to rely on business valuation evidence was dismissed. The existing trial window was vacated in the interests of certainty, and consequential costs were left for the substantive order.

First-instance decision. The judgment records an earlier decision by Fancourt J, [2025] EWHC 526 (Ch), refusing permission for business valuation evidence. There was no appeal from that decision.