CL-2023-000054 - [2025] EWHC 1609 (Comm)

Fecha: 25-Jun-2025

Conclusions

Analysis and conclusions

13.

Whether the Disputed Amendments should be allowed is to be considered at the date of the hearing. In this case, the delay between the issuance of the Application and the date of the hearing, whilst unfortunate, is of limited relevance only.

14.

In performing the balancing exercise, I have had regard to the following factors as being of particular relevance:

(1)

The case sought to be advanced in the Disputed Amendments is one the parties have already been considering, at least to a degree.

(2)

The PT Defendants will be prejudiced if permission to introduce the Disputed Amendments is refused. In my view, the Disputed Amendments do disclose (or add strength to) a proper ground for defending Trafigura’s claim.

(3)

The Disputed Amendments could have been advanced earlier and the only explanation for the delay, namely, lack of funding, is either legally irrelevant or of little substance on the facts. The court has previously found, and I agree, that there are sources of funding available to the PT Defendants. The prejudice to the PT Defendants in not being able to advance the Disputed Amendments is therefore attributable to their own conduct and consequently a factor to be treated as less important in the balancing exercise.

(4)

It is common ground that the Disputed Amendments are “late” amendments, and Trafigura contends that they are “very late” amendments. As a consequence, there is a heavy burden on the PT Defendants to show why justice (to all parties) requires that they should be permitted to pursue the amended case.

(5)

If permission is given to advance the Disputed Amendments, it will require Trafigura to revisit the disclosure exercise. This has been a costly and time-consuming exercise. The PT Defendants candidly accept that the disclosure exercise will need to be revisited. The number of Trafigura custodians will need to be increased by at least four – the PT Defendants had initially contended for the identification of one or more custodians from 13 Trafigura departments – and that the disclosure process will need to be re-run in relation to each of these 4 additional custodians for the period from 1 January 2019 to 10 February 2023. This would involve a not insignificant and time-consuming exercise being conducted alongside the other tasks currently being undertaken by the parties. Trafigura contend that it would endanger the trial fixture. In my view, it would likely cause very significant prejudice to Trafigura and possibly endanger the trial fixture.

(6)

If permission to advance the Disputed Amendments is given, it is likely to require Trafigura to revisit witness statements. Some work which has already been completed would likely be wasted and the consequential work would likely be significant.

(7)

These necessary consequential steps in relation to disclosure and witness statements will heap additional pressure on Trafigura’s legal team in what is already an intense period of preparation in a relatively short run up to the trial.

(8)

The generality and vagueness of the Disputed Amendments, particularly in the context of an allegation of fraud, are further factors to which I have had regard. The Disputed Amendments for the most part fail to identify the additional individuals now said to be involved in the Arrangement or the extent of their involvement. If the Disputed Amendments were permitted Trafigura would be left in the unenviable position of having to obtain evidence from a very large pool of potential witnesses without knowing whether they had tapped the correct pool.

15.

In my view, weighing in the balance all of the factors I have identified above, the PT Defendants have not overcome the heavy burden which lies on them to show why justice requires that they should be permitted to pursue the amended case. The prejudice to the PT Defendants which is likely to result from not being permitted to pursue the Disputed Amendments – factors (1) and (2) above, read with factor (3) – is likely to be outweighed by the prejudice to Trafigura which would result if the amendments were allowed – factors (5), (6), (7) and (8) – and the possible prejudice to other court users.

16.

For these reasons permission to make the Disputed Amendments is refused.