CA-2025-000525 - [2025] EWCA Civ 1307

As indicated above, the principles applicable to amendments were not contentious and, in so far as relevant to the issues on this appeal, can be found in the following summaries, starting with that undertaken by O’Farrell J in Municipio de Mariana v BHP Group (UK) Limited and others [2024] EWHC 23, adopted by the Judge in his judgment:

“16…On an application by a party to amend its pleading, where there are potential issues of lateness or adverse impact on the trial date, the following principles are applicable, as set out in CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345 (TCC) per Coulson J (as he then was) at [19] and Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 per Carr J (as she then was) at [36]-[38]:

(i)

In exercising the court’s discretion whether to allow an amendment, the overriding objective is of the greatest importance. Although the court will have regard to the desirability of determining the real dispute between the parties, it must also deal with the case justly and at proportionate cost, which includes (amongst other things) saving expense, ensuring that the case is dealt with expeditiously and fairly, and allocating to it no more than a fair share of the court’s limited resources.

(ii)

Therefore, such applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted.

(iii)

The starting point is that the proposed amendment must be arguable, coherent and properly particularised. An application to amend will be refused if it is clear that the proposed amendment has no real prospect of success.

(iv)

An amendment is late if it could have been advanced earlier, or involves duplication of steps in the litigation, costs and effort. Lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done.

(v)

It is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay.

(vi)

A very late amendment is one made when the trial date has been fixed and where permitting the amendment would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept.

(vii)

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 him, his opponent and other court users requires him 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 question of “lateness” had also been considered in this Court in ABP Technology Ltd v Voyetra Turtle Beach Inc [2022] EWCA Civ 594, [2022] E.T.M.R 33 by Birss LJ (with whom Coulson and Nicola Davies LJJ agreed):

“23.

When considering whether to exercise the discretion to permit an amendment provided by Part 17.3 of the Civil Procedure Rules, there are several factors to bear in mind. One of these factors is lateness. Coulson J (as he then was) summarised the relevant authorities on ‘lateness’ in CIP Properties v Galliford Try [2015] EWHC 1345 (TCC) and, for the purposes of this case, explained the following key principles at paragraph 19:

“(a)

The lateness by which an amendment is produced is a relative concept… An amendment is late if it could have been advanced earlier, or involves the duplication of cost and effort, or if it requires the resisting party to revisit any of the significant steps in the litigation (such as disclosure or the provision of witness statements and expert's reports) which have been completed by the time of the amendment.

…

(c)

The history of the amendment, together with an explanation for its lateness, is a matter for the amending party and is an important factor in the necessary balancing exercise…. In essence, there must be a good reason for the delay.

…

(f)

Prejudice to the amending party if the amendments are not allowed will, obviously, include its inability to advance its amended case, but that is just one factor to be considered... Moreover, if that prejudice has come about by the amending party’s own conduct, then it is a much less important element of the balancing exercise.” (my emphasis)

24.

The simple point about lateness is that it calls for an explanation justifying the lateness. That is because an amendment which might otherwise be allowed, could well be refused if its lateness has caused unjustifiable prejudice to the other party. Therefore an explanation is needed in order for the court to work out whether or not it is a case in which, despite the prejudice caused by the lateness, nevertheless the balance comes down in favour of allowing the amendment.

25.

Examples of the kinds of prejudice a late amendment might cause were given by Coulson J in CIP Properties at paragraph 19(e): “at one end of the spectrum, the simple fact of being ‘mucked around’ … to the disruption of and additional pressure on their lawyers in the run-up to trial.…, and the duplication of cost and effort…at the other. If allowing the amendments would necessitate the adjournment of the trial, that may be an overwhelming reason to refuse the amendments….”

There appears to be no authority specifically on the question of whether an amendment at the early case management stage of the quantum phase of a split trial should be classified as “late”, but in my judgment the question is readily answered by application of the approach identified by Birss LJ above. Accordingly, if the amendment could have been made earlier (as the amendments in this case clearly could have been), it is properly to be considered “late”. But lateness is a relative concept. Therefore, as with any application to amend, if it is made at an early stage of the relevant phase of the proceedings, before decisions as to what disclosure should be given and before witness statements and expert reports are exchanged, the lateness will far more readily be excused by the Court and it will be harder for the party resisting the amendment to demonstrate that the prejudice it would suffer by the amendment being permitted would outweigh the prejudice occasioned by its refusal.

As regards the approach of an appellate court to appeals against a discretionary or evaluative assessment by a first instance judge, the relevant principles are again to be found in ABP Technology, where the court at [21] approved the following summary by Saini J in Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB):

“50.

An appellate court will only interfere with a discretionary evaluation where an appellant can identify one or more of the follows errors:

(i)

a misdirection in law;

(ii)

some procedural unfairness or irregularity;

(iii)

that the Judge took into account irrelevant matters;

(iv)

that the Judge failed to take account of relevant matters; or

(v)

that the Judge made a decision which was "plainly wrong".

51.

Error type (v)… means a decision which has exceeded the generous ambit within which reasonable disagreement is possible.

52.

...The appellate court’s role is to police a very wide perimeter and it will be rare that a judge who has exercised a discretion having regard to relevant considerations will have come to a conclusion outside that perimeter... It needs to be underlined that an appellate court in an appeal such as the present is exercising a CPR 52.21(1) “review” power. It is also well-established that the weight to be given to specific factors is a matter for the trial judge and absent some wholly unjustifiable attribution of weight, an appellate court must defer to the trial judge.”