Case No. IP-2020-000140

[2015] EWHC 759 (Comm) to which Mr Richards referred me during argument. That was a case in which permission was sought for very late amendments. However, the circumstances were very different from the context of Mr Hebden’s application, and Mr Richards confirmed that Domino accepted that considerations relating to the proximity to the trial date or delay did not arise in this case.25.Notwithstanding the multiple considerations that may, depending on the context, influence the Court’s exercise of its discretion, Counsel for both parties agreed that the principal considerations in this instance were the need to deal with the case in accordance with the overriding objective and whether any or all of the draft pleadings had sufficient prospects of success to be permitted to proceed to trial.26.It is common ground that, as summarised in Quah Su-Ling v Goldman Sachs International: “An application to amend will be refused if it is clear that the proposed amendment has no real prospect of success. The test to be applied is the same as that for summary judgment under CPR Part 24. Thus the applicant has to have a case which is better than merely arguable. The court may reject an amendment seeking to raise a version of the facts of the case which is inherently implausible, self-contradictory or is not supported by contemporaneous documentation.” [p. 36]27.The Court may conclude on a summary basis that a pleading is not arguable if the pleading is legally defective or not maintainable in law. As explained in the White Book in the context of CPR 24.2.3, it will be appropriate to do so if the application gives rise to a point of law or construction on which the Court is satisfied both that it has all the evidence necessary for a proper determination and that the parties have had adequate opportunity to address it in argument so that it is clear that there is no real prospect of success. The Court should then ‘grasp the nettle’. However, the Court must not conduct a mini trial and it may be that the matters involved are of sufficient complexity, or that the pleadings arise in areas where the jurisprudence appears to be unsettled or evolving, such that evaluation in the light of full legal argument, prepared and delivered after proper consideration and preparation, is appropriate.28.While the complexity of a case may militate against summary decisions, complexity in itself will not preclude a decision to refuse permission to amend where it is clear that a proposed amendment has no prospects of success.