Optosafe Limited & Anor v John Mark Robertson

Permission to amend pleadings may be refused where the application is made at the commencement of trial. The applicant bears a heavy burden to explain the delay, demonstrate the strength of the proposed case, and show why justice requires the amendment. The court must apply the overriding objective and weigh the effect on the opponent and other court users.

A proposed amendment alleging that proceedings are a strategic lawsuit against public participation must have a realistic prospect of satisfying the statutory definition. Reasonable litigation conduct, including notifying relevant persons of an interim injunction, does not ordinarily establish the required intention to cause harm beyond that ordinarily encountered in properly conducted litigation.

Optosafe Limited and Benjamin William Howard brought contractual and related claims against John Mark Robertson. On the first day of trial, the defendant sought permission under a limited civil restraint order to make a further amendment to his amended defence.

The proposed amendment challenged the validity of contractual documents on the basis that deeds had not been delivered. It also alleged that the proceedings were a strategic lawsuit against public participation under the Economic Crime and Corporate Transparency Act 2023. The central issues were whether permission should be granted despite the timing of the application and whether either proposed defence had a realistic prospect of success.

1. Application refused. The defendant’s application for permission to make a further amendment was refused. The court stated that, absent the limited civil restraint order, it would also have refused the application and certified it as totally without merit.
2. Under CPR 17.3, the overriding objective is central to an application for permission to amend. The timing of the application must be weighed in the balance. Where an amendment is sought very late, the applicant bears a heavy burden to show both the strength of the proposed case and why justice to the applicant, the opponent and other court users requires permission.
3. The proposed challenge to the validity of the deeds was fatally late. It introduced a positive defence to a contract claim on the first day of a trial that was ready to begin. Allowing it would have required the claimants to consider and answer extensive case law concerning delivery of deeds and would have delayed the trial.
4. In any event, the proposed amendment disclosed no reasonable grounds for defending the claim. The Service Agreement and Settlement Agreement were valid contracts supported by consideration, irrespective of whether they were deeds.
5. The proposed SLAPP amendment had no prospect of success. Section 195(1)(d) of the Economic Crime and Corporate Transparency Act 2023 requires behaviour intended to cause harassment, alarm or distress, expense, or other harm or inconvenience beyond that ordinarily encountered in properly conducted litigation. Section 195(4) identifies matters the court may take into account, including disproportionate reaction, unequal resources, and failures concerning pre-action protocols, court rules, practice directions or professional regulation.
6. Nothing in the claimants’ conduct, including alerting persons to the interim injunction, approached the statutory threshold. The earlier finding by Chamberlain J that the claimants were more likely than not to succeed at trial also weighed against the contention that the claim was a disproportionate reaction. The defendant had not shown that the resource or compliance matters in section 195(4)(b) or (c) were met.

The judgment records that Chamberlain J had previously determined, at an interim injunction hearing, that the claimants were more likely than not to succeed at trial. The present judgment concerned the defendant’s subsequent application for permission to amend his defence.