Finastra International Limited v The CRDB Bank plc

Permission to make a substantive amendment shortly before trial depends on the overriding objective and requires a balance between the applicant’s interests, the respondent’s interests and the interests of other court users. A very late amendment carries a heavy burden of justification, especially where it threatens the trial date or requires disclosure, witness evidence and expert work to be revisited. The court must assess the practical ability to prepare properly for trial, not merely whether consequential steps can technically be completed. The applicant must explain the delay and show why justice requires the amendment. An amendment is also defective where it fails to plead the alleged breach with sufficient clarity or attempts to plead causation and loss through an expert report. Where the amendment would cause serious prejudice, lacks a good explanation for its lateness and would jeopardise the trial, refusal is ordinarily justified.

The claimant brought a substantial claim for alleged breach of a software licence agreement concerning access to banking software by the defendant bank’s agents. The trial was listed to begin on 7 April 2025.

Shortly before trial, the claimant sought permission to add a further multiplexing claim concerning the defendant’s New Agency Banking System. The proposed claim required further technical disclosure, pleading, witness evidence and expert analysis. The defendant opposed the amendment, relying on the claimant’s earlier notice of the system and the prejudice caused by its lateness. The central issue was whether permission should be granted under the Civil Procedure Rules having regard to the overriding objective, trial preparation and the interests of other court users.

1. Application refused. Permission to amend was refused, save for any unopposed amendments not concerning the New Agency Banking System. The proposed amendment would inevitably threaten the trial date and would place wholly unfair pressure on the defendant, its lawyers and its expert.
2. Under CPR 17.1(2)(b), the court has discretion to allow or refuse an amendment. CPR 1.1(2) requires consideration of equal participation, proper preparation of evidence, expense, expedition, fairness and the court’s limited resources. The court must balance the injustice if the amendment is refused against the injustice if it is allowed.
3. The amendment was very late. The claimant had been put on clear notice of the New Agency Banking System and its potential relevance from February 2024, with further reminders during 2024. Its failure to investigate and formulate the claim earlier supplied no good reason for the delay. The prejudice attributable to the claimant’s own conduct materially reduced the weight of its claimed injustice.
4. The practical consequences were substantial. The amendment required further disclosure, consequential pleading and likely witness evidence, together with expert meetings, analysis and reports concerning a technically complex system and large volumes of data. The court considered the proposed timetable wholly unrealistic and stressed that trial preparation must be proper, not merely technically possible within compressed deadlines.
5. The proposed pleading was defective. It did not explain how the system operated or how its use breached the licence, and it replaced the existing assumptions concerning causation and loss with a cross-reference to an expert report. A party cannot plead its case on causation and loss in that manner.
6. An adjournment was also refused. It would undermine the defendant’s reasonable expectation of finality, prejudice other court users and risk further fading of memories concerning events already several years old. A proposal to split the matter into a later second trial did not cure the defects or justify permission.