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Amendments to statements of case – late, very late, and too late

In complex litigation, late amendments are not uncommon, and used to be allowed routinely, with any prejudice being dealt with in a costs order.

This is no longer the case. In CIP Properties v Galliford Try Infrastructure [2015] EWHC 1345 (TCC), Coulson J reviewed the authorities and set out the current position, which rather leans against late amendments, at [19].

Lateness is a relative concept. An amendment is “late” if it could have been advanced earlier, or if it obliges other parties to revisit steps in the litigation (for instance, raising a new issue which would require experts to produce supplemental reports). It is “very late” if it threatens the trial date, even if it is proposed several months before the trial date.

Where an amending party wants to make a late or very late amendment, it will need to have a good reason. The history of the litigation will be relevant. The Court will consider any prejudice to the other parties if the amendment is allowed. The worse the prejudice, the less likely it is to be allowed, with loss of the trial date potentially being “overwhelming”. Prejudice to the amending party if the amendment is not allowed will count for less.

Late amendments are generally to be avoided. If you need to make a late amendment to your statement of case, try to make it as tightly focused as possible – and be aware of CIP Properties.

Ross Beaton / 8th Jun 2015


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