PT-2023-001131 - [2025] EWHC 2728 (Ch)

In chronological terms, this is an extremely late amendment (there is authority that suggests that the concept of a “very late” amendment is one where allowing the amendment would cause the trial to be adjourned – see Rolls-Royce Holdings PLC v Goodrich Corporation [2023] EWHC 1637 (Comm), at [223], cited in the Public Institution for Social Security v Al-Wazzan [2025] EWHC 1357 (Comm), at [31]). On the first day of trial, the Claimant made it plain that any argument based on the Deed being delivered subject to conditions would be resisted, on the ground that the same had not been pleaded. It would have been much better had the Defendant produced a draft amended Defence immediately, certainly at least before the Defendant went into the witness box. There was no reason this could not have been done, as a matter of the trial timetable.

The Defendant accepts that the application to amend gives rise to different legal issues, but says that it arises out of the same facts as have already been pleaded. The amendment does not give rise to any new issues for disclosure, nor it is said would the witness statements need to be changed. The Court has before it all the material that it needs to decide the point. The Defendant submits that there is no real prejudice in allowing the amendment.

The Claimant takes issue with the submission that there is no prejudice in allowing the amendment. The Claimant’s Counsel submitted that, had the amendment been in play at the start of the trial, she might well have put different, additional questions in cross-examination to the Defendant. As a matter of law, where a Deed is delivered subject to conditions, the maker of the Deed is under an obligation not to prevent the fulfilment of the conditions. In this case, the Claimant says that it is at the very least arguable that it was the Defendant who prevented the Claimant from purchasing the Property. It was her unreasonable conduct and purported revocation of the Deed which led to the breakdown in relations between the parties, which led to the Claimant’s being unwilling to pursue the purchase. There is force in this point.

The Defendant relies on a letter, dated 28 November 2022, from the solicitors who originally acted for the Claimant. In that letter, there is reference to the Property increasing in value and the Claimant no longer being able to afford to purchase it. The Defendant’s Counsel therefore suggests that it is clear that the Claimant could not fulfil the condition, and there is nothing further on which the Defendant could have been cross-examined. I do not accept that this letter is a complete answer. In a text dated 15 November 2022, the Defendant had suggested to the Claimant that there were cash buyers (note the plural) bidding for the Property for £1.85million, which was more than the Claimant could afford. Whether this was actually true or not is unclear. The Property eventually sold for £1.765 million, which was a price which the Claimant could have afforded. It is also not entirely clear what is meant by “the sale of the Property to [the Claimant] was confirmed”. Does this mean the sale going through to completion? Or is it that the Claimant had obtained finance and was ready to proceed? This too could have been explored further in cross-examination. In the circumstances, I accept that the course of cross-examination might have been different, had the Defendant presented the proposed amended Defence at the beginning rather than the end of the trial. There were a number of points on conditionality that could have been put to the Defendant, and the Claimant may have wanted to put in further evidence on the point. There might also have been further disclosure, relating to the presence of other buyers.

The Claimant’s Counsel also submitted that further consideration would need to be given as to what is meant legally by preventing the fulfilment of a condition. She says that she has not come ready to argue the point, on which there may be further authority.