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

Under CPR 17.1(2)(b), the court has discretion to allow or refuse the proposed amendments. In exercising its discretion, the overriding objective is of the greatest importance. Under CPR 1.1(2), dealing with cases justly and at proportionate cost means ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; saving expense; ensuring the case is dealt with expeditiously and fairly; and allocating to each case no more than a fair share of the court’s limited resources.

The court must strike a balance between the interests of the applicant and those of the other party and other court users, having regard to the injustice if the amendments are refused and the injustice if the amendments are allowed.

It is relevant to consider to what extent the case sought to be advanced by the amendment is one the parties have already been considering. However, the mere fact that the issue has received some attention in the preparation of the case and the experts’ reports is not necessarily sufficient to make permission to amend appropriate.

Consideration of whether the amendments should be allowed takes place as at the date of the hearing. There is no reason for a responding party to take steps to meet the case advanced in a contested amended pleading for which permission has not been granted.

The lateness of the amendment is a relevant factor. Lateness is a relative concept. An amendment is late if it could have been advanced earlier, or involves a duplication of cost and effort, or if it requires the opposing party to revisit any of the significant steps in the litigation (e.g. disclosure, witness statements and expert reports). There will need to be a fair appreciation of the consequences in terms of the work wasted and consequential work to be done if the amendment were to be allowed.

An application to make substantive amendments in the lead up to trial is a late amendment, and if it threatens the trial date, it is a very late amendment. There is a heavy burden on the applicant to justify a very late amendment. Parties have a legitimate expectation that trial dates will be met and not adjourned without a good reason. The applicant must explain the lateness of the amendment and have a good reason or explanation for any delay. The prejudice to a respondent by virtue of the disruption and additional pressure on parties and lawyers and experts in the run up to trial is a relevant factor. If the amendment would necessitate the adjournment of the trial that may be an overwhelming reason to refuse permission. By contrast, where the prejudice to an applicant in not being able to advance the amended case is attributable to their own conduct, that is a much less important factor.

In considering the impact on the trial, the court is not concerned just with the ability to complete all necessary consequential steps but also with the impact on the overall ability to prepare properly for trial. Additional pressure on a party preparing in the intense run up period to trial is a substantial reason not to allow amendments.

Where a very late application to amend is made, the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to the applicant, the respondent and other court users require the applicant to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission.

The particularity and/or clarity of the proposed amendment then has to be considered, because different considerations may well apply to amendments which are not tightly-drawn or focused