The Court of Appeal has recently considered the test for allowing a “late” amendment (as opposed to a “very late” amendment which puts a trial date at risk) in CNM Estates (Tolworth Tower) Limited v Simon Peter Carvill-Biggs Freddy Khalastchi [2023] EWCA Civ 480. Mark Simpson KC appeared for the Defendants (leading Isabel Barter).
The Court of Appeal held that it is a necessary condition that the claim as amended should have a real prospect of success. This is the same test as applies on a summary judgment application, Elite Property Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 204 at [41] and [42] per Asplin LJ. However, even if an amendment has a real prospect of success, whether to allow the amendment remains a matter of discretion.
The Court of Appeal held that, aside from very late amendments, the perceived strength of the case is not normally a factor to be taken into account when exercising that discretion (per Sir Geoffrey Vos MR and Newey LJ at [76] and Males LJ at [49]). It would never be appropriate to conduct a mini trial, Okpabi v Royal Dutch Shell Plc [2021] UKSC 3, [2021] 1 WLR 1294.
The Court of Appeal (by a majority) indicated that it would have allowed the appeal, but the claim was compromised shortly before the judgment was handed down.
Judgment can be found here.
