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England and Wales High Court (Commercial Court) Decisions
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Cite as:  EWHC 2665 (Comm)
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
7 Rolls Building
B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
| (1) FERAND BUSINESS CORPORATION
(2) ANGELIKI FRANGOU
(3) MARITIME ENTERPRISES MANAGEMENTS S.A.
|- v -
|(1) MARITIME INVESTMENTS HOLDINGS LIMITED
(2) KOLEN INTERNATIONAL S.A
Central Court, 25 Southampton Buildings, London WC2A 1AL
Tel: 0330 100 5223 | Email: firstname.lastname@example.org | auscript.com
MS C POUNDS appeared on behalf of the First Defendant; and
MR R SARLL appeared on behalf of the Second Defendant
Crown Copyright ©
(a) an application to amend is made very late if permission threatens the trial date - see Swain-Mason and Others v Mills and Reeve  EWCA Civ 14;  1 WLR 2735; CIP Properties (AIPT) Limited v Galliford Try  EWHC 1345; and Quah Su-Ling v Goldman Sachs International  EWHC 759 (Comm) per Carr J (as she then was) at paragraph 38(c);
(b) where a very late application is made, a heavy burden rests on a party seeking permission to amend 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 - see Quah ibid. at paragraph 38(b);
(c) 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 - see Quah ibid. at paragraph 38(b) - and may be an overwhelming reason for refusing the amendments - see CIP Properties ibid. at paragraph 19(e);
(d) 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 - see Quah ibid. at paragraph 38(f); CIP Properties ibid. at paragraph 19(c); Donovan and Naled Limited v Grainmarket Asset Management LLP  EWHC 1023 QB at paragraph 29; and Dany Lions Limited v Bristol Cars Limited  EWHC 928 QB at paragraph 29;
(e) in carrying out the balancing exercise referred to in (b) above, prejudice caused to the resisting parties ranging from being "mucked around" to disruption to and additional pressure on their lawyers in the run-up to trial is material - see CIP Properties ibid. at paragraph 19E;
(f) prejudice to the amending party if the amendments are not permitted is a factor, but only one factor, to be considered and the weight to be given to it will be limited if the prejudice is the result of the amending party's own failings - see CIP Properties ibid. at paragraph 19F;
(g) where a very late amendment is applied for, the amendment must satisfy to the full the requirements of proper pleading because the resisting party must know from the moment the amendment is made what is the amended case that it has to meet - see Swain-Mason ibid. at paragraph 73; and
(h) it is not open to the applying party to rely upon the instruction of new counsel as a good explanation for the late or very late amendment - see Quah ibid. at paragraph 47 and Donovan ibid. at paragraph 28.
A critical issue, therefore, will be the reasons given as to why a very late application is being made. If a very late application is made without any or a weak or bad reason being offered, then that is likely to justify a refusal of the application particularly if there is prejudice to the other side if the amendment is permitted.
"I have practised as a solicitor for 35 years. In my experience it would take at least several months to properly complete such work". It follows that if the amendments are permitted there would have to be an order vacating the trial date with the requirement that it be fixed at some future date inevitably some months away."
Given that four days of court time has been set aside for the trial and there is no prospect of filling that time at this stage, the consequence is that public resources would be wasted and other litigants inconvenienced if the application was to be granted, the trial vacated and re-fixed at some date in the future.