East-West United Bank SA v Vladimir Gusinski & Ors

An amendment should be permitted where it clarifies and particularises an existing case rather than introducing a new cause of action, provided it has a real prospect of success and causes no significant prejudice. In a conspiracy claim, it is at least arguable that participation or joinder may be established without pleading concerted action by every alleged participant. An earlier date of joinder may permit recovery of losses caused by the existing conspiracy from that date, where the date was already available on the original pleading. Serious allegations should be pleaded with sufficient particulars to ensure procedural fairness.

The claimant sought to amend its pleading against the defendants in proceedings concerning an alleged unlawful means conspiracy. The proposed amendment advanced an earlier possible date by which the second and third defendants had joined the conspiracy, and supplied particulars concerning an alleged diversion of funds from January 2018.

The defendants objected that the amendment disclosed no real prospect of success because it did not plead concerted action, introduced a new cause of action, was late, and would cause prejudice by requiring further evidence, expert evidence and an adjournment. The court determined whether the amendment should be permitted and, if so, on what terms.

1. Amendment allowed. The amendment was permitted, subject to removal or curtailment of specified references in paragraph 98 concerning advice allegedly not given or not stated by Mr Samuels.
2. It was at least arguable that defendants 2 and 3 could have participated in or joined the alleged conspiracy without it being necessary to prove concerted action by them. The proposed pleading was directed to knowledge sufficient to support an inference of joinder on an earlier date.
3. The proposed amendment particularised the existing conspiracy case. It did not introduce a new cause of action. The original pleading already alleged that the defendants had joined by June 2018 at the latest, and January 2018 was within the scope of that pleading. If joinder in January 2018 were proved, losses caused by the existing conspiracy from that date could consequently be recoverable from defendants 2 and 3.
4. Although the application should have been made earlier, it was raised more than two months before trial. The amendment was not strictly necessary as a matter of pleading, but fairness justified requiring particulars of a serious conspiracy allegation so that the defendants knew the case they had to meet.
5. The amendment was unlikely to require further disclosure because the relevant issues fell within the existing disclosure exercise. Any additional witness evidence was not significant prejudice. No adjournment was necessary, and any forensic evidence concerning the purported division of funds could be addressed in a later inquiry if the tort were established.