Servicios de Salud del Instituto Mexico del Seguro Social Para el Bienstar v Viva Enterprises Limited & Anor

A court may grant relief on a legal basis not precisely pleaded where the underlying issue was squarely in issue, each party had a fair opportunity to address it, and the result causes no material prejudice. Contractual variation is governed by its operative language: a reduced contract quantity does not itself authorise delivery of that total where the agreement limits suppliers, quantity or timing, and the balance is refundable. A post-trial amendment requires a fair balance under the overriding objective, including delay, prejudice and clarity. Pre-judgment interest is discretionary and should reflect the relevant funding characteristics without over-compensation. Costs depend on practical success, and dishonesty does not automatically justify indemnity costs. An appeal does not stay an order, but a stay may be granted where enforcement risks irremediable prejudice.

This was a consequential judgment following the court’s earlier trial judgment [2026] EWHC 1380 (Ch). The earlier judgment rejected the pleaded misrepresentation, repudiatory breach and unjust enrichment claims, but found that a variation agreement entitled the claimant to a refund for ventilators not delivered within the agreed limits.

The claimant sought judgment for the refund, permission to amend its pleading, interest and costs. The defendants opposed relief as unpleaded, alleged prejudice, sought permission to appeal and requested a stay. The court considered whether relief could be granted on the contractual basis found at trial, whether amendment should be permitted, the appropriate interest rate, costs and the consequences of the proposed appeal.

Relief and amendment. Judgment was entered for the claimant for US$38.48m, representing the refund for 650 ventilators. The June Agreement was a non-conditional variation, but its operative terms permitted only the possible delivery of up to 500 HBK units by 3 July 2020, with the other identified supply contracts to be cancelled. The court rejected the contention that it had created an impermissible third-man theory. The relevant issues had been pleaded or agreed for trial, both parties had addressed the correspondence and evidence, and granting relief caused no material prejudice. The approach was consistent with the principles considered in Advanced Multi-Technology for Medical Industry (trading as HITEX) v Uniserve Ltd [2025] EWCA Civ 1212, The New Lottery Company Limited and another v Allwyn Entertainment Limited [2026] EWHC 891 (TCC) and Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041.

1. Amendment. Under Civil Procedure Rules 1998, Part 17.4(2), the proposed alternative contractual claim arose from the same facts already in issue. The court applied a fair-balance assessment, including the history of the amendment, prejudice and clarity. The heavy burden applicable to a late amendment, particularly after trial, did not make permission impossible. Permission was granted for limited amendments specifying the payment period and liquidated relief, applying the principles in Macleod v Mears Ltd [2014] EWHC 3140 (QB), Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm) and Nesbit Law Group LLP v Acasta European Insurance Co Ltd [2018] EWCA Civ 268.
2. Interest. Interest under Senior Courts Act 1981, section 35A, was discretionary. US Prime was a starting point for a US-dollar award, but the claimant’s public and non-commercial characteristics made it inappropriate. An investment rate was also unsuitable. Pre-judgment interest was awarded at the Effective Federal Funds Rate plus 1% from 1 January 2022. Interest on costs was awarded at Bank of England base rate plus 1% from payment of the relevant invoices, with judgment-rate interest after 14 days.
3. Costs and appeal. The claimant was the successful party in practical terms. VEL was ordered to pay 55% of its costs on the standard basis, with 60% payable on account. There was no separate costs order in favour of the second defendant. A finding of dishonesty was not automatically decisive of indemnity costs, applying TMO Renewables Ltd (In Liquidation) v Yeo [2022] EWCA Civ 1409. Permission to appeal was refused. Under Civil Procedure Rules 1998, Part 52.16, a stay was not automatic, but a stay of payment was granted pending determination of any permission application because enforcement could cause serious prejudice, including possible insolvency. The injunction-related applications were adjourned and the security for costs was released.

This was a first-instance consequential judgment following the earlier trial judgment [2026] EWHC 1380 (Ch) . No appeal was heard; permission to appeal was refused in this judgment.