[2025] EWHC 2126 (Comm)

A requirement for permission to amend is that any claim raised in a pleaded amendment must have a real prospect of success, which is the same test as applies on a summary judgment application; see CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs [2023] 1 WLR 4335, at [48] to [49], where Males LJ (who agreed with Sir Geoffrey Vos MR and Newey LJ on this aspect) said this:

“48.

… There is no point in giving permission for an amendment which is fanciful and which has no real prospect of success. In this regard the principal focus must be on the pleading in question and no attempt should be made to resolve disputed matters of evidence (conducting a mini-trial) … . It is, however, appropriate to consider whether a proposed pleading is coherent and contains properly particularised elements of the cause of action relied upon (Elite Property Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 204 at [42]).

49.

Even if an amendment clears that initial hurdle and has a real prospect of success, whether to allow the amendment remains a matter of discretion. I would accept, however, that in general (and save perhaps in the case of ‘very late’ amendments) it is not appropriate to consider the strength or weakness of the claim as a factor relevant to that exercise of discretion, for the reasons given by the Master of the Rolls and Lord Justice Newey at [69] to [77] of their judgment.