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

First, that the Judge applied the wrong test, namely, whether he could be sure that none of the subsidiaries’ documents which would have been caught by a litigation hold could be relevant, requiring ENRC to prove a near impossible negative. He should have asked whether a fair trial of the issues on the amendment was or was not possible, but even if that was not correct, he imposed far too high a test.

Second, that the Judge wrongly pre-judged that proper disclosure on the amendment issues could not be given, and that the absence of such disclosure constituted prejudice to the defendants.

Third, that the Judge wrongly “went behind” ENRC’s evidence that all relevant documents as to the increase in borrowing costs of the subsidiaries were available because loans were negotiated at group level.

Fourth, that the Judge was wrong to reject the amendments in relation to the borrowings of ENRC Finance and ENRC NV where, in addition to the group level documents, those companies’ documents were also preserved.

Fifth, that the Judge erred in categorising ENRC’s applications as “late” when they were made before the case management stage of the relevant phase of the proceedings.