Case No. IP-2020-000140

42.Mr Carter submitted that all of Mr Hebden’s proposed amendments have real prospects of success. His position on the appropriate test was that, unless proposed amendments are clearly flawed, the threshold for persuading the Court that amendments have no real prospects of success is high, particularly where the relevant areas of law are complex and unclear and/or involve evolving areas of jurisprudence. In his submission all of the proposed pleadings fall into those categories so that they are not suitable for summary determination and should be permitted.43.Mr Carter also submitted that, while permission to amend may be refused in circumstances where draft pleadings are inadequate, this would not be appropriate where Mr Hebden had pleaded his case sufficiently clearly to allow Domino to understand that case it would have to meet. In this case, the chronology of events leading up to the hearing of the Amendment Application are said to be relevant to the Court’s exercise of its discretion to permit amendment subject to any necessary clarification. Mr Carter referred, among other things, to the compressed timeframe within which the draft amendments had to be prepared.44.Mr Richards’ position was that none of the proposed amendments was tenable. His forensic approach to the legal basis for, and legal consequences of, each of the proposed amendments was most helpful. However, for the reasons below, he was not successful in persuading me that it was appropriate to refuse permission for all of the draft amendments on a summary basis.45.Mr Richards criticised the drafting of parts of the draft APOC. However, ultimately, he did not suggest that drafting issues should, in these circumstances, be the criterion for refusing permission. Mr Richards further accepted that it would not be appropriate to contend that the timing of the amendments, including the likely loss of the trial date, should affect the assessment.46.In substance, therefore, the principal question addressed by Counsel for both parties was whether it would be appropriate in the light of the overriding objective, including the likelihood of success, to refuse permission to amend. One other issue was raised briefly, whether there was incoherence in the pleading owing to its material inconsistency with the originally pleaded case. I turn to this first.