Malcolm Cohen & Anor (as joint liquidators of The Food Retailer Operations Limited) v Co-operative Group Limited & Ors [2025] EWHC 1892 (Ch)

[2025] EWHC 1892 (Ch)Case No CR-2023-000648IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTSOF ENGLAND AND WALESINSOLVENCY AND COMPANIES LIST (ChD)Venue Royal Courts of Justice,, Rolls Building,, Fetter Lane,London,EC4A 1NLDate Tuesday, 29 July 2025IN THE MATTER OF THE FOOD RETAILER OPERATIONS LIMITED (In liquidation)AND IN THE MATTER OF THE INSOLVENCY ACT 1986
Before
His Honour Judge Hodge KC(sitting as a Judge of the High Court)
Between
(1) Malcolm CohenApplicants(2) Shane CrooksApplicant(1) Co-operative Group LimitedRespondents(2) Co-operative Group Food LimitedRespondent(3) Co-operative Foodstores LimitedRespondent(4) Rochpion Properties (4) LLPRespondent
Lord (David) Wolfson KC and Mr Tim Goldfarb (instructed by Shoosmiths LLP, Manchester) for ApplicantsMr James Potts KC and Mr Matthew Parfitt (instructed by Addleshaw Goddard LLP, Manchester) for RespondentsHearing Hearing date: 27 June 2025Date draft judgment circulated: 23 July 2025Date judgment handed down: 29 July 2025Approved JudgmentHIS HONOUR JUDGE HODGE KCThis judgment was handed down remotely at 10.00 am on Tuesday 29 July 2025 by uploading it to CE-File, by circulation to the parties or their representatives by e-mail, and by release to the National Archives.INSOLVENCY– Transaction at an undervalue – Preference – Business sale agreement – Joint liquidators’ existing pleadings alleging sale of property and assets – Joint liquidators applying for permission to amend points of claim, to allege, in addition, sale of a business as a going concern – Application made after expiry of applicable limitation period – Whether proposed amendment seeking to add or substitute a new cause of action – If so, whether new cause of action arising out of the same, or substantially, the same facts as are already in issue in the existing claim – Whether admittedly ‘late’ application ‘very late’, in the sense of one that would cause the trial date to be lost – Whether the court should exercise its discretion to permit the amendmentThe following cases are referred to in the judgment:Alame v Shell plc[2024] EWCA Civ 1500CIP Properties AIPT Ltd v Galliford Try Infrastructure Ltd[2015] EWHC 1345 (TCC), (2015) 160 Con LR 73CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs[2023] EWCA Civ 480, [2023] 1 WLR 4335Diamandis v Wills[2015] EWHC 312 (Ch)Geo-Minerals GT Ltd v Downing[2023] EWCA Civ 648Invest Bank PSC v El-Husseini[2024] EWHC 1235 (Comm)Kawasaki Kisen Kaisha Ltd v James Kemball Ltd[2021] EWCA Civ 33, [2021] 1 CLC 284Lloyds Bank plc v Rogers, unrep., 20 December 1996Re One Blackfriars Ltd, Hyde v Nygate[2019] EWHC 1516 (Ch)Re Priory Garage (Walthamstow) Ltd[2001] BPIR 144Quah Su-Ling v Goldman Sachs International[2015] EWHC 759 (Comm)
[1]This is my reserved judgment on an opposed application by the applicant liquidators, issued on 25 April 2025, for permission to amend the points of claim pursuant to CPR 17.1(2)(b), and, consequential upon such amendment, to adduce expert evidence in the further field of business valuation. The dispute between the parties on this application centres on whether the court should grant permission to amend. If such permission is granted, it is accepted that it will be necessary for the court to receive expert business valuation evidence in order to determine the dispute between the parties. The applicants are represented by Lord (David) Wolfson KC, leading Mr Tim Goldfarb (of counsel). The respondents are represented by Mr James Potts KC, leading Mr Matthew Parfitt (also of counsel).[2]By an insolvency application notice, issued on 3 February 2023, the applicantsseek declarations that a transaction of sale and purchase between the company and the respondents (which are all companies within the Co-operative group), in November 2015, was a transaction at an undervalue, within section 238 of the Insolvency Act 1986, and that elements of the transaction constituted preferences within section 239 of that Act, and for consequential relief. The applicants are the joint liquidators of a company now known as The Food Retailer Operations Limited (‘FROL’). FROL first entered into administration on 10 February 2017, and moved to creditors’ voluntary liquidation on 9 February 2019. The loss to creditors is said to be very substantial.[3]This judgment is a sequel to, and should be read in conjunction with, a judgment handed down by Fancourt J on 4 March 2025, and bearing the neutral citation number [2025] EWHC 526 (Ch). So far as material to the present application, Fancourt J refused an application by the applicants to adduce evidence in a sixth field of expertise, that of business valuation. As explained at paragraph 32 of his judgment, he did so “for the simple reason the evidence will not go to any pleaded issue in the claim. Whatever the sale agreement may say on its face, the pleaded case is one of sale of assets. This is not merely a matter of form because disclosure and witness statements were tailored to a case of asset disposal, and the direction for property and fixtures valuation expert was given on that basis.” At paragraph 33, Fancourt J adds:
“Further, an application to amend to change the nature of the case at this stage will not necessarily be straightforward, but obviously I express no view beyond that as to the likely outcome of any such application.”
It is just such an application that now comes before me. There was no appeal from Fancourt J’s decision.[4]The present application is supported by a witness statement from Mr James Keates, dated 25 April 2025. He is a solicitor and a partner in Shoosmiths LLP, who act as solicitors for the applicants. The respondents rely on a witness statement, dated 28 May 2025, from Ms Samantha Haigh, who is a partner in their solicitors’ practice, Addleshaw Goddard LLP. There is a witness statement in reply from Mr Keates, dated 13 June 2025. The hearing bundle runs to over 1,400 pages.[5]The disputed amendments are principally contained within paragraphs 19, 30, and 47A-47E of the most recent revision of the draft amended points of claim, with minor, and consequential, amendments elsewhere, including the prayer for relief. These reflect the expansion of the claim to embrace the sale of a business (as well as properties and assets). The proposed amendments seek to extend the subject-matter of the challenged transaction (which, for reasons that are not immediately apparent, was code-named ‘Project Chicago’). Instead of alleging the disposal, for a stated consideration of slightly over £496 million, of some 436 freehold and leasehold properties and other assets, the ambit of the sale to the third respondent (Foodstores) is expanded to include the sale, as a going concern, of the food retail and petrol sales business then being carried on from those properties. The underlying transactional documents, however, remain the same, notably (for present purposes) a written agreement for the sale and purchase of business and assets by FROL to Foodstores dated 2 November 2015. It is the joint liquidators’ case that “the value of the business materially exceeds the sum of the values of each of the individual assets”.[6]The applicants say that the proposed amendments fall into two main categories. The first category comprises amendments intended expressly to plead the fact of a business sale to Foodstores. The second category pleads the liquidators’ estimate of the value of the business sold to Foodstores, and the methodology on which that estimate is based (subject to expert evidence).[7]The proposed changes to paragraph 19 are intended to clarify the distinction between the two different transactions that are the subject of the claim:(1) the disposal to Foodstores of a business and assets pursuant to the Foodstores sale agreement; and(2) a separate disposal of properties and other assets to the fourth respondent (‘Rochpion’). The relevant distinction for present purposes is that only the sale agreement with Foodstores refers expressly to the transfer of a business as a going concern, and so it is only the consideration transferred to Foodstores that the liquidators seek to be valued by a business valuation expert. The proposed changes to paragraph 30 particularise the consideration provided by FROL to Foodstores under the Foodstores sale agreement by reference to the relevant terms of that agreement. The applicants say that there is no ambiguity in the express terms of that agreement, which is a paradigm example of an agreement for the sale of a business and its assets. The applicants assert that it is difficult to imagine how the agreement could have stated this any more clearly.[8]The second category of amendments – those concerned with valuation of the business – are at paragraphs 47A to 47E of the revised draft amended points of claim. These paragraphs plead the joint liquidators’ current estimate of the value of the business, and a methodology for determining that value, based on initial discussions with the liquidators’ proposed business valuation experts, Interpath Advisory. In short, the liquidators say that the value of the business can be determined by applying a multiple to the EBITDA generated by the business before the disposal to Foodstores, with that multiple reflecting the amount a buyer would have paid for the business in the open market based on comparable industry transactions identified by Interpath. This methodology results in an estimated value for the business of £632.1 million, based on an annual EBITDA of £90.3 million, to which a multiplier of seven has been applied. This reflects the figures respectively identified by Interpath from FROL’s financial information produced on disclosure, and publicly available data on comparable transactions.[9]The respondents say that this new case is lacking in any substance. FROL had no functioning business to sell, nor did it sell any freestanding business. FROL was operated as part of the Co-operative Group’s Food Division; and it did not have its own employees, stock, supply chain, logistics, legal or HR support, or even its own bank account. All of these were centrally provided, and FROL could not sell or transfer them. Without them, there would be no business in any meaningful sense. This was pointed out as early as January 2023, in response to the letter before action.[10]This insolvency application is presently set down for a substantive trial (with a listing category of A) with a time estimate of seven weeks (to include four days’ judicial pre-reading time, and an interval between the close of evidence and final submissions of five days) within a five day window, commencing on 12 January 2026. There is a pre-trial review listed in a window from 8 to 10 December 2025. The respondents says that if this permission application is granted, the trial will not be able to proceed on those dates. It will have to be put back, probably by about a full year after the existing trial window. This is disputed by the applicants; but if they are wrong about this, they say that the amendments are of such central importance to FROL’s case (and to its creditors) that the trial should be adjourned. There is therefore a degree of urgency in producing this judgment before the Long Vacation so that the parties (and Chancery Listing) may know whether the present trial dates can be maintained. This judgment will therefore be considerably shorter than would otherwise have been the case.[11]For this reason, I do not propose to set out the parties’ competing submissions in any greater detail beyond that which is strictly necessary to explain the reasons for my decision. There are detailed written skeleton arguments, dated 24 June 2025, from both pairs of counsel. There is also a written transcript of the one day’s hearing, on Friday, 27 June 2025, prepared (remotely, and with their customary attention to detail, but without full access to the underlying documents) by Marten Walsh Cherer Limited. Anyone seeking a fuller account of the submissions should reference these documents.[12]The applicants’ skeleton addresses the background to the application; summarises the key principles relevant to the exercise of the court’s discretion when it considers an amendment application;explains the amendments for which permission is sought; addresses their prospects of success; andexplainswhy these amendments should be permitted in order to do justice between the parties.[13]The respondents’ skeleton sets out the background to the present application; explains the current timetable leading up to trial; addresses both the earlier application to Fancourt J, and the present application; considers the principles governing amendment applications; and, finally, sets out the respondents’ grounds for opposing the present application. Mr Potts and Mr Parfitt do so under the following headings:(a) limitation;(b) the lack of any good reason for these late amendments;(c) the lack of any properly particularised claim;(d) the loss of the trial date, and consequential ‘very lateness’ of these amendments; and(e) weighing the balance of prejudice to the respondents, other court users, and the applicants.[14]The respondents invite the court to refuse permission to amend on limitation grounds. Even if that is wrong, they say that the court should refuse permission to amend as a matter of discretion. The respondents invite the court to conclude that:(1) the applicants do not come close to discharging the heavy burden which lies upon them to succeed on their present application, and(2) it would not be in accordance with the overriding objective for these amendments to be allowed at this very late stage.

II: The applicable legal principles

[15]Lord Wolfson began his oral submissions by acknowledging that the legal principles to be applied to this application are fairly well trodden ground, and that, conceptually, this is not an unusual sort of application. The principles that apply to the exercise of the court’s power, under CPR 17.1(2)(b), to give permission to amend an existing statement of case are helpfully summarised at paragraphs 17.3.5 to 17.3.8 of the current (2025) edition of Volume 1 of Civil Procedure by reference to the many relevant authorities.[16]The issue of whether to allow an amendment involves the exercise of the court’s discretion; and since the circumstances in which amendments may be put forward are infinitely variable, each decision requires the court to consider the particular facts of the case. The applicants say that the correct approach to the exercise of this discretion was succinctly stated by Sir Geoffrey Vos MR and Newey LJ in their joint judgment in CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs [2023] EWCA Civ 480, [2023] 1 WLR 4335, at [75]: … an application for permission to amend particulars of claim will be refused if the amendments put forward a new case which would have ‘no real prospect of succeeding’ within the meaning of CPR Pt 24. Beyond that, the court has to strike a balance between the interests of the applicant and those of other parties and litigants more generally:
‘In essence, the court must, taking account of the overriding objective, balance the injustice to the party seeking to amend if it is refused permission, against the need for finality in litigation and the injustice to the other parties and other litigants, if the amendment is permitted’
[17]In other words, where the proposed amendments have a real (as opposed to a fanciful) prospect of success, the grant of permission to amend will turn on balancing the injustice to the party seeking to amend, if it is refused permission, against any injustice to the other parties, and other litigants, if the amendment is permitted. If an amendment meets the comparatively low burden of the summary judgment threshold, the further consideration of the merits of the amendment is generally a matter for trial. Only in the case of ‘very late’, as opposed to ‘late’, amendments, may it be appropriate for the court to have regard to its perception of the relative strength, and weakness, of the case; but even then “it will never be appropriate to attempt to conduct a mini-trial”: CNM Estates at [76]. In the course of his oral submissions, Mr Potts reminded the court that the application for permission to amend in CNM Estates was made at a very early stage in the proceedings, when the trial was “still in the dim and distant future", and even disclosure had not then taken place.[18]The ‘lateness’ of an amendment “is not an absolute, but a relative concept”: CNM Estates at [76], citing Carr J in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm), at [38(d)]. A ‘late’ amendment is one that could have been pleaded earlier; a ‘very late’ amendment is one that would cause the trial date to be lost. A heavier onus lies on a party who seeks a very late amendment to justify it: CNM Estates at [67].[19]The respondents point out that under CPR 17.3, the court has a broad discretionary power to grant permission to amend. For the court to permit amendments to a statement of case, they must be arguable, carry a degree of conviction, be coherent, properly particularised, and supported by evidence which establishes a factual basis for the amended allegation. The amendments must have a real prospect of success. The respondents rely upon observations to this effect by Popplewell LJ in Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33, [2021] 1 CLC 284 at [18]; and, in particular, his statement that:
“it is not sufficient simply to plead allegations which if true would establish a claim; there must be evidential material which establishes a sufficiently arguable case that the allegations are correct.”
[20]The respondents say that the applicable principles are well established, and unlikely to be in dispute. They were recently, and comprehensively, reviewed by Bryan J in Invest Bank PSC v El-Husseini [2024] EWHC 1235 (Comm) at [24]-[55]. The court’s discretion is to be exercised in the light of the overriding objective. This is to deal with cases justly, and at proportionate cost; and includes a number of components, which are particularly engaged on a late amendment application:(1) Ensuring that the parties are on an equal footing, and can participate fully in the proceedings, and that parties and witnesses can give their best evidence. In Invest Bank at [28] it was stressed that the ‘equal footing’ principle is relevant from the point of view of the party that has to respond to the amendments.(2) Ensuring that the case is dealt with expeditiously and fairly: a late amendment can imperil the fairness of an impending trial if the responding party is prejudiced; or the expeditious resolution of the case if, as a matter of fairness, the trial must be vacated; or both, if a delay will cause a deterioration in the quality of the responding party’s oral evidence.(3) Allotting the case an appropriate share of the court’s resources is particularly in issue where a trial fixture may be lost.[21]The circumstances are “infinitely variable”, so that previous decisions may be illustrative, but are seldom compelling: see Invest Bank at [25].[22]Consideration of whether or not an amendment is permissible takes place at the date of the hearing of the amendment application, and not when the application was first made, or when the amendments were first foreshadowed. As Bryan J held in Invest Bank at [45]:
“… a responding party is not obliged to divert themselves from their trial preparation to prepare to meet a case which is the subject of a contested application for permission to amend.” [Emphasis in the original].
[23]Lateness is important and, potentially, determinative, particularly for what are termed ‘very late’ amendments, being amendments which threaten the trial date. But even if an amendment is merely ‘late’ rather than ‘very late’, there is a ‘heavy burden’ on an applicant to justify it: see Invest Bank at [46]. An amendment can threaten the trial date even if it “is still some way off”: see Invest Bank at [47]. The history of the amendment, together with an explanation for its lateness, is a matter for the amending party, and is an important factor in the necessary balancing exercise. In essence, there must be a good reason for the delay: see Invest Bank at [48(c)]. When considering the impact on a trial fixture, the court is concerned not just with the ability to complete all the necessary steps consequential on the amendments, but also with the impact on the overall ability to prepare for the trial. Where there would be additional pressure on a party in the run-up to trial, that is a substantial reason why amendments should not be permitted. The need to revisit previous trial steps “in conjunction with the intense preparation already required even if there is no amendment” may constitute “substantial prejudice”: see Invest Bank at [49].[24]There is a particular onus on a party seeking to make a very late amendment to ensure that it fully satisfies the requirements of a proper pleading. The later an amendment is made, the greater the need for proper particulars, because of the limited time remaining to cure any deficiencies. It should not be acceptable for the party to say that deficiencies in the pleading can be made good from the evidence to be adduced in due course, or by way of further information if requested, or as volunteered without any request. The opponent must know, from the moment the amendment is made, what is the amended case that he has to meet, with as much clarity and detail as he is entitled to under the Civil Procedure Rules. The fact that a defective pleading can be cured later is misguided in the case of late amendments: Investec Bank at [50]-[51]. But, says Lord Wolfson, it is simply wrong to suggest that the later the amendment, the more detail you need to be pleading. “Bloated pleadings” are to be discouraged at all times, and perhaps especially so in the case of late amendments. You have not got to plead more; but you do have, so to speak, to plead it correctly.[25]It is always a question of striking a balance between injustice to the applicant if the amendment is refused and injustice to the opposing party if it is permitted. Prejudice to the amending party will include the inability to advance its amended case. However, any prejudice caused to the applicant by a refusal of leave may be “diluted” if the amendment is late. That is because the applicant then only has itself to blame. Prejudice to the opposing party will include being “mucked around”, disruption or additional pressure before trial, or the duplication of cost and effort. There is a “broad spectrum of impacts” which “may fall somewhere between the negligible to the devastating”: see Invest Bank at [54].[26]Although the court should not engage in a mini-trial to test the merits of the new case, a very late amendment to introduce a weak case is likely to be an uphill struggle (as argued in QuahSu-Ling at [57] and applied by Carr J in that case at [95]).[27]CPR 17.4 provides (so far as relevant) that where a party applies to amend their statement of case after the expiry of a relevant limitation period, the court may only allow an amendment whose effect would be to add, or substitute, a new claim if that claim “arises out of the same facts or substantially the same facts as are already in issue”. This is not a discretionary bar; it is mandatory, and implements the statutory bar in s. 35 of the Limitation Act 1980.[28]In applying this mandatory bar, the court applies a four-step test, as explained by Males LJ (with whom Nicola Davies and Phillips LJJ both agreed) in Geo-Minerals GT Ltd v Downing [2023] EWCA Civ 648 at [25]:(1) Is it reasonably arguable that the opposed amendments are outside the applicable limitation period?(2) If so, do the proposed amendments seek to add or substitute a new cause of action?(3) If so, does the new cause of action arise out of the same, or substantially the same, facts as are already in issue in the existing claim?(4) If so, the court may exercise its discretion to allow the amendment. If not, the court has no power to grant permission. The claimant bears the burden at each step: see para 17.4.4 of the White Book.[29]Steps (2) and (3), in particular, are engaged here. The Court of Appeal in Geo-Minerals (at [27]) applied the principles summarised by Mr Stephen Morris QC in Diamandis v Wills [2015] EWHC 312 (Ch), which were said to be common ground. As regards step (2), the deputy judge in Diamandis summarised the principles as follows, at [48] (omitting citations):(1) The ‘cause of action' is that combination of facts which gives rise to a legal right; (it is the 'factual situation' rather than a form of action used as a convenient description of a particular category of factual situation … )(2) Where a claim is based on a breach of duty, whether arising in contract or tort, the question whether an amendment pleads a new cause of action requires comparison of the unamended and amended pleading to determine (a) whether a different duty is pleaded (b) whether the breaches pleaded differ substantially and (c) where appropriate the nature and extent of the damage of which complaint is made … (Where it is the same duty and same breach, new or different loss will not be [a] new cause of action. But where it is a different duty or a different breach, then it is likely to be a new cause of action).(3) The cause of action is every fact which is material to be proved to entitle the claimant to succeed. Only those facts which are material to be proved are to be taken into account; the pleading of unnecessary allegations or the addition of further instances does not amount to a distinct cause of action. At this stage, the selection of the material facts to define the cause of action must be made at the highest level of abstraction. …(4) In identifying a new cause of action the bare minimum of essential facts abstracted from the original pleading is to be compared with the minimum as it would be constituted under the amended pleading …(5) The addition or substitution of a new loss is by no means necessarily the addition of a new cause of action … Nor is the addition of a new remedy, particularly where the amendment does not add to the 'factual situation' already pleaded …[30]As regards the third stage, the deputy judge stated the position, at [49], as follows (again with citations omitted): As regards Stage 3, ('arising out of the same or substantially the same facts') a number of points emerge, particularly from Ballinger at [34] to [38]:(1) ‘Same or substantially the same’ is not synonymous with ‘similar’.(2) Whilst in borderline cases, the answer to this question is or may be substantially a 'matter of impression', in others, it must be a question of analysis …(3) The purpose of the requirement at Stage 3 is to avoid placing the defendant in a position where he will be obliged, after the expiration of the limitation period, to investigate facts and obtain evidence of matters completely outside the ambit of and unrelated to the facts which he could reasonably be assumed to have investigated for the purpose of defending the unamended claim.(4) It is thus necessary to consider the extent to which the defendants would be required to embark upon an investigation of facts which they would not previously have been concerned to investigate … At Stage 3 the court is concerned at a much less abstract level than at Stage 2; it is a matter of considering the whole range of facts which are likely to be adduced at trial …(5) Finally, in considering what the relevant facts are in the original pleading a material consideration are the factual matters raised in the defence …[31]In answering these questions in a case under the Insolvency Act 1986, the respondents submit that the court needs to scrutinise the points of claim as it would in any other form of proceedings; and should not permit general words in the originating application notice to widen the nature of the claim. They rely upon the decision of Mr John Kimbell QC, sitting as a deputy judge of the Chancery Division in Re One Blackfriars Ltd, Hyde v Nygate [2019] EWHC 1516 (Ch) at [34]-[39]. The deputy judge rejected the submission that the applicants were entitled to rely on a special, and more generous, amendment rule, applicable in insolvency proceedings, which entitles the court to look back to the application notice and the evidence served in support of the application for the purposes of determining whether an amendment raises a new claim for limitation purposes.[32]In the course of his oral submissions, Lord Wolfson referred the court to the decision of the Court of Appeal in Alame v Shell plc [2024] EWCA Civ 1500 as a recent application of the familiar principles that apply where amendments are sought after a relevant limitation period has expired. He took me to the leading judgment of Stuart-Smith LJ at [33]-[34] and [53]-[65], explaining why the application in that case (to amend particulars of claim to include reference to a further 85 oil spillages, in addition to the ten originally pleaded spills) merely involved the provision of further particulars of the existing claims, and did not introduce any new cause or causes of action. The additional spills were further particulars of the original claim, rather than an attempt to introduce multiple new causes of action. The legal routes to liability might be different for the different oil spills; but it was not, and could not, at that stage, be asserted, or demonstrated, that any of the oil spills introduced by the amendments required liability to be established by another route that had not already been pleaded. In other words, the duty (or duties) being alleged were unchanged, as were the breaches which were said to have led to the occurrence of the particular contributions to damage from the additional oil spills. The fact that each specified oil spill had its own set of facts, which would differ, either fully or partially, from the facts of each of the ten originally specified spills, and each of the other additional spills, did not mean, or even suggest, that the spills lately being identified were not included within the very wide scope of the original complaint and pleading. They clearly were; and, given the breadth of the case as originally pleaded, they were properly to be regarded as further specific instances that merely provided further particularisation of the case that had been pursued by the claimants from the outset.[33]Just as the new oils spills alleged in Alame v Shell fell within the scope of the originally pleaded case, even though they increased the value of the claim for damages, so here (Lord Wolfson says) the increased value of the consideration passing on a business sale is clearly within the scope of the originally pleaded case of a transaction at an undervalue. The situation is analogous to the particulars of additional oil spills in Alame v Shell or, indeed, pleading a new or different loss caused by the same breach of the same duty, as discussed in Geo-Minerals. Pleading the transfer of additional consideration, in the form of a business, as part of the same transaction, is not the pleading of a new cause of action, any more than the pleading of additional oil spills.[34]Mr Potts says that Alame v Shell involves no more than the application of uncontroversial principles to particular facts; and the decision is case specific. The pleaded damage in that case was damage caused by oil spills between 2011 and 2013. Those oil spills were clearly identified as including published, and also unpublished spills; and not just the ten originally specified oil spills. So it is a completely different factual situation. Self-evidently, the new spills were part of the facts pleaded in the original claim, rather than an attempt to introduce multiple new causes of action. In the present case, Fancourt J has already looked at the existing pleadings. He has held that these do not include any claim relating to the sale of a business whatsoever. Alame v Shell represents the precise opposite of Fancourt J’s express finding (from which there has been no appeal). Mr Potts says that Alame v Shell actually proves his point for him. Here there are findings of the court which are precisely the opposite to those found in Alame v Shell.[35]Mr Potts submits that in the present case, Fancourt J has already answered the question whether the case the applicants now seek to advance is a new cause of action, which is different from the claims which are presently pleaded, and which relate to the transfer of property and assets. In oral submissions, Mr Potts cited paragraph 26 of Fancourt J’s judgment, as follows: Whether it is correct or not that FROL had a business capable of being sold as a going concern, it is clearly not a matter that is currently pleaded. Nor is the business identified beyond the assets that were sold. No sale of a viable business appears in the case summary, and the list of issues that was prepared for the case management conference says nothing about the value of a business. What is pleaded is that there was a sale of specified assets, including a large number of properties and the fixtures and fittings in them. As Mr. Potts KC for the defendants pointed out, that had consequences for the way in which the disclosure issues were defined in the disclosure review document, and for the evidence of fact that has just been exchanged.

III: The competing submissions summarised

[36]What follows is a summary of the parties’ competing submissions. In the course of preparing this reserved judgment, I have re-read (more than once) the parties’ written skeleton arguments, and the transcript of the parties’ helpful oral submissions. I can assure the parties that, even if a particular argument is not expressly referenced below, I have borne it in mind; and weighed it fairly in the balance.

(a) The applicants

[37]Lord Wolfson and Mr Goldfarb explain that joint liquidators’ position is that the disposal to Foodstores comprised the transfer, as a going concern, of the business that was operated from each of the stores transferred, along with the assets that made up that business. This position is said to reflect the express, and unambiguous, terms of the Foodstores sale agreement, which provided, in terms, for the sale of “the business as a going concern”. Accordingly, the value of the consideration provided to Foodstores included the value of the business transferred (and not merely the independent break-up value of the individual assets). The applicants’ current ‘best estimate’, informed by discussions with their business valuation expert, is that the business was worth approximately £632.1 million. This vastly exceeds the respondents’ pleaded estimate of the break-up asset value transferred of £202.9 million.[38]The joint liquidators say that they applied for the court’s permission to adduce expert business valuation evidence when it became clear to them, after disclosure and discussions with their existing retained experts, that the substantial value of the business sold to Foodstores would not be reflected in any property and fixtures and fittings valuation of the assets transferred. Fancourt J refused permission for expert business valuation evidence because he held (contrary to the joint liquidators’ submissions) that their pleaded case was of only an asset, and not a business, sale (notwithstanding that, as the judge recognised, the Foodstores sale agreement was, on its face, one for the sale of a business and assets). It is this that has precipitated the instant application, both to amend the joint liquidators’ existing points of claim, and to renew the request for expert business valuation evidence founded upon those amendments.[39]The applicants say that the value of the consideration provided by FROL to Foodstores is of fundamental importance to these insolvency proceedings, both to establishing the fact of an undervalue under s. 238, and also to the quantum of the relief available under both ss. 238 and 239. In summary, the proposed amendments plead:(1) A written agreement for the sale of a “food retail and petrol sales business” carried on from specified store properties as a “going concern”, and an express right for the buyer to “carry on and continue the business in succession to the seller”; and(2) That the value of the business sold is to be determined ultimately by reference to evidence from an expert in business valuation. In the meantime, this is estimated to be the annual business EBITDA multiplied by seven (this being what a buyer would have paid for the business based on multiples derived from comparable transactions).[40]The applicants say that their position is straightforward:(1) The proposed amendments plainly have a real prospect of success, not least because they reflect the express terms of the Foodstores sale agreement. The applicants clearly have more than a merely fanciful case that this was the sale of a business as a going concern.(2) The court has discretion whether to permit expert business valuation evidence, but there is no doubt that such evidence will be necessary if the amendments are allowed.(3) Properly valuing the business transferred by FROL is of fundamental importance to these proceedings. If the amendments are refused, theliquidators’ case at trial will have to proceed on an entirely false factual and legal premise: that there was an asset-only disposal to Foodstores, which will undervalue the liquidators’ claim by hundreds of millions of pounds.(4) Whilst it is regrettable that the need for the liquidators expressly to plead a business sale did not become apparent until the judgment of Fancourt J, so the proposed amendments are ‘late’, in the sense that they could, in principle, have been pleaded earlier, the court must now balance the prejudice of allowing the amendments, to the respondents and other court users, against the prejudice to the applicants of refusing them.(5) The balance of prejudice favours allowing the amendments. The prejudice to the liquidators of refusing permission to amend is obvious: they would be unable to advance a very substantial claim, potentially worth hundreds of millions of pounds to FROL’s creditors. There is always some prejudice to a party faced with amendments to a statement of case, which, inevitably, is always inconvenient; Coulson J has graphically referred to this in CIP Properties AIPT Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345 (TCC), (2015) 160 Con LR 73 at [19 (e)] as “the simple fact of being ‘mucked around’.” But this is not a case where the inherent inconvenience of a late amendment should justify refusing permission, given the fundamental importance of the amendments, and the substantial prejudice that refusing them would cause to the liquidators and to FROL’s creditors. The respondents would need to show some real, and very substantial, prejudice for permission to hang in the balance. The reality is that, despite their numerous complaints, the respondents can show no such prejudice.(6) A sensible approach to any further disclosure and evidence required by the amendments should not prejudice the existing trial date, which remains over six months away. So the proposed amendments are therefore not ‘very late’. But even if they were, because the court was to accept the respondents’ ‘extravagant’ proposals for further disclosure and evidence, (which are said to require an astonishing further year to complete), and the trial date were to be lost as a result, ultimately this should make no difference to the outcome of this application. That is because these amendments are so important that they should be permitted, even if they would cause the trial date to be lost. Losing the trial date at the present time would be regrettable, but ultimately of only limited consequence, given that the trial costs will not yet have been incurred, and the court will have time to fill the resulting gap in the list with other matters. Adjourning the trial would still be preferable to shutting out the true basis for the joint liquidators’ claim. It is important to note that the court is concerned with any prejudice to the respondents caused by the fact of the amendments, and their timing, rather than with the prejudice of having to face a more valuable claim (assuming the threshold of a real prospect of success is met). It is no doubt inconvenient for any party to face a more valuable claim than the one they have previously had to face; but if that claim is a reasonable one to pursue, then there is no additional prejudice caused by the amendment, compared with the position if the amended case had been pleaded from the outset (to which no objection could have been made).(7) Complaints that the proposed amendments do not sufficiently particularise the business alleged to have been sold to Foodstores ring particularly hollow coming from the respondents, who, unlike the joint liquidators, sat on both sides of the transaction, and therefore know exactly what the business was that was operated from each of the properties before their transfer, exactly what they themselves acquired, and also exactly what they did not acquire. If, in due course, the respondents really need to be told any more, which is unlikely given their position, they can seek further information under CPR Part 18.[41]Had this case been pleaded at the outset, it would plainly have been determined at trial with the assistance of expert business valuation evidence. There could be no serious suggestion that it would have been amenable to a summary judgment application by the respondents. The relevant question for the court, therefore, is simply whether it is now too late for the joint liquidators to pursue this case for the benefit of FROL’s creditors. The applicants say that the balance of prejudice clearly favours permitting the case to proceed. For the purposes of the present application, the central point is that the proposed amendments have (at the very least) a real prospect of success, and that there is a reasonable basis for concluding that the value of the business transferred was very substantial indeed.[42]During the course of his oral submissions, Mr Potts emphasised that the applicants had not sought to address the final sentence of Fancourt J’s judgment at [29]:
“The amended statement of case would also have to withdraw the pleaded case that the transaction was the sale of a collection of assets only.”
In response to my suggestion that it would be open to the applicants to run the two cases – the sale of a business, and the sale of properties and assets – in the alternative, Lord Wolfson (at p. 85 of the transcript) makes it clear that that is what he would be seeking to do:
“I was trying to say that we can run both. In other words, if it is not a sale of a business, it is certainly the sale of the properties, is the point I was trying to get over.”
[43]The applicants do not address the limitation issue in their written skeleton submissions. But Lord Wolfson proceeded to do so in his oral submissions to the court (as recorded at pages 21-31 of the transcript). He explained that although the limitation point had been floated in correspondence some time ago, it then appeared to have been abandoned. Lord Wolfson characterises it as “a bad point”. He submits that the proposed amendments do not seek to introduce any new cause of action. When approaching issues of limitation on an amendment application, the granular detail of the pleading does not matter. The specific assets pleaded as part of the value of the transfer consideration are not an essential fact of the cause of action. The underlying insolvency claim has always involved the allegation of a transaction at an undervalue; and that remains the basis of the claim. A business sale is not a new cause of action. The essential ingredient of the statutory cause of action is that FROL received, by way of consideration, significantly less than it paid out by way of consideration. That is what is pleaded in the original points of claim. The proposed amendments add a new element to that consideration. It is no longer the difference between A and B. It is now the difference between A and (B plus C). The applicants accept that this a new element of the consideration; but that does not mean it is a different statutory cause of action.[44]Lord Wolfson points to issue 8 of the issues in the proceedings, prepared for the first case management conference. This reads:
“What was paid, offset or transferred to whom as part of the transaction?”
The new case for which permission to amend is sought simply increases the extent of the undervalue. Nothing has changed about the essential facts of the cause of action in the amended pleading. The case remains that, by reason of a transaction falling within the definition of ‘Project Chicago’, FROL received from Foodstores, by way of consideration, less than the consideration it transferred to Foodstores. The change is to plead an increase in the value of the relevant consideration that FROL transferred, so the difference between the consideration transferred, and that received, by FROL is now greater, and the claim is therefore more valuable. It is obvious, when you add the business, and its value, to the list of assets transferred, that the value of the claim goes up. But to make an obvious point, the contractual provisions are exactly the same. The statutory provisions are exactly the same. The essential formulation of the claim is exactly the same. The specific assets pleaded as part of the value of the consideration are not an essential part of the cause of action. So the applicants say that the respondents' limitation point fails at the second stage of the four-stage test: whether the proposed amendments seek to add or substitute a new cause of action.[45]If he is wrong about there being no new cause of action, Lord Wolfson says that the limitation objection still fails because any new cause of action arises out of the same, or substantially the same, facts as are already in issue in the existing claim. Plainly, the facts and matters raised by the proposed amendments are not completely outside the ambit of, or unrelated to, those facts which the respondents can reasonably be assumed to have investigated for the purpose of defending the existing pleaded claim. So far as the facts are concerned, the amendments are squarely within the scope of issue 8 in the list of issues. The sale of the business arises out of the very same transaction, under the very same contracts, as the applicants’ unamended case. It cannot seriously be suggested that it arises out of anything other than substantially the same facts as the pleaded case of a sale of the assets, particularly, as the assets are all themselves defined as being assets used in the business. So if the limitation argument survives the second stage of the relevant inquiry - which Lord Wolfson submits it does not - then the limitation argument certainly fails at the next stage.[46]Mr Potts submits that Lord Wolfson is operating in a sort of parallel universe because he is effectively inviting the court to ignore the proceedings before Fancourt J, when, in fact, many of the very same issues which the court is now having to deal with were engaged on that application. He says that Fancourt J made detailed findings in relation to the very issues that this court is now being asked to consider, including, indeed, some of the matters relevant to the limitation issues. There is no need to revisit those matters. Indeed, it would be inappropriate to do so because they involve findings against which there has been no appeal. Fancourt J has already held that the sale of a business forms no part of the pleaded case, which alleges a transaction comprising an asset sale, and not a business sale. Mr Potts says that it is necessary for the applicants to plead and prove what was the consideration provided, and the consideration received, by the company, and their value in money and money's worth. These are key factual components of the statutory cause of action. The same points apply to the preference claim. The transfer of the business is a necessary factual component of the proposed new causes of action. Each of them involves a different cause of action from the claims which are presently pleaded, relating just to the transfer of FROL’s property and assets.[47]Mr Potts submits that in the present case, Fancourt J has already answered the question whether the case the applicants now seek to advance is a new cause of action, which is different from the claims which are presently pleaded, and which relate only to the transfer of property and assets. In oral submissions, Mr Potts cited paragraph 26 of Fancourt J’s judgment, as follows: Whether it is correct or not that FROL had a business capable of being sold as a going concern, it is clearly not a matter that is currently pleaded. Nor is the business identified beyond the assets that were sold. No sale of a viable business appears in the case summary, and the list of issues that was prepared for the case management conference says nothing about the value of a business. What is pleaded is that there was a sale of specified assets, including a large number of properties and the fixtures and fittings in them. As Mr. Potts KC for the defendants pointed out, that had consequences for the way in which the disclosure issues were defined in the disclosure review document, and for the evidence of fact that has just been exchanged.[48]Mr Potts says that the findings of Fancourt J (from which there has been no appeal) in themselves dispose of both the second and the third stages of the court's inquiry. On limitation, it is simply not open to the court to grant permission to amend. The court has no power to do so by reason of CPR 17.4 and s. 35. That is not a matter of discretion, but goes to the court’s jurisdiction.[49]Lord Wolfson suggests that the respondents fall into error when they apply the approach taken by Fancourt J to the present application, because he was dealing with an entirely different point. That was whether or not to grant permission for expert evidence. The rationale of Fancourt J’s judgment is simply that without a pleaded case, the court will not give permission for expert evidence. Just because the applicants are adding a new factual case, does not mean that they are adding a new cause of action, as that term is used in the Limitation Act and CPR 17.4. That is the non sequitur. It assumes that just because Fancourt J decided that there was no pleaded business sale, any amendment which introduces a new case relating to a business sale must be a new cause of action. That is simply wrong.

(b) The respondents

[50]Mr Potts and Mr Parfitt say that this is the applicants’ second attempt fundamentally to reframe both their case and the scope of the trial. As Fancourt J has recently held, this claim has, at all times, been about the transfer of certain specified properties, and related assets, and whether that involved an undervalue, or the giving of a preference. It has never been a case about the sale of a business.[51]On 4 March 2025, Fancourt J dismissed the joint liquidators’ previous application to adduce further categories of expert evidence, including the very same expert business valuation evidence they now seek to introduce. He did so because that proposed expert evidence did not go to any pleaded issue. He held that the pleaded case was that the impugned transaction was only the sale of a collection of assets. There was no pleaded case that FROL had a business capable of being sold as a going concern, nor was such a business even identified. Fancourt J accepted the respondents’ submission that this had consequences for the way disclosure had been defined, and the evidence of fact that had lately been exchanged. Similarly, the expert evidence was directed towards valuing the identified properties, and fixtures and fittings, and not a business.[52]Whilst noting that he was not expressing any view on the likely outcome of any application to amend to plead the sale of a business, Fancourt J observed (at paragraph 33) that “an application to amend to change the nature of the case at this stage will not necessarily be straightforward”. He further noted (at paragraph 29) that if the joint liquidators should apply to amend their claim, “they would have to provide a proper pleading giving particulars of the nature and extent of the business sold, what it actually comprised and what (e.g.) goodwill would go with the business, so that a business valuation expert would know what it was that they were valuing. The amended statement of case would also have to withdraw the pleaded case that the transaction was the sale of a collection of assets only.”[53]Notwithstanding the clear terms of Fancourt J’s judgment, the respondents point out that the applicants waited over five weeks (until 9 April 2025) to formulate any amendments. Two further attempts at amendments followed: on 25 April 2025 (when this application was issued) and, most recently, on 13 June 2025 (over three months after Fancourt J’s judgment, the most recent amendments being settled by new counsel). Most fundamentally, and despite three attempts to formulate an amended pleading, the latest draft still fails to address the basic requirements indicated by Fancourt J. Quite apart from this, in itself, being a sufficient reason for refusing permission to amend, the applicants’ inability to particularise their new claim indicates the weakness of the case they now seek to advance.[54]On 13 June 2025, alongside their reply evidence, the applicants provided a draft timetable down to trial. Having considered both, as explained in Addleshaw Goddard LLP’s letter dated 20 June 2025, the respondents consider that the applicants’ approach to the timing of future steps in this litigation is wholly unrealistic, and that the present application should be regarded as a ‘very late’ one, in the sense that permission to amend threatens the existing trial dates.[55]In very broad summary, the respondents say that permission to amend should be refused because:(1) The amendment fundamentally changes the applicants’ case. This was previously alleged to have been about the sale of properties and assets. It is now alleged to have been the sale of a business. The new case therefore does not arise out of the same, or substantially the same, facts as the existing claim. The limitation period for this claim expired in February 2023, six years after FROL went into administration. The amendments are therefore now barred by CPR 17.4.(2) Even if not barred on limitation grounds, on key criteria relevant to the exercise of the court’s discretion under CPR 17.3, and in accordance with the overriding objective, the application is seriously deficient.(3) The applicants have no good explanation for why these very late amendments were not raised at the outset, which is inexcusable.(4) The amendments are not properly particularised, and they fail to address points recently drawn to the applicants’ attention by Fancourt J. During the course of his oral submissions, Mr Potts took me to observations during the course of argument where Fancourt J drew express attention to the need to have clarity about what the assets of the business were; and he made the point that one does not achieve that clarity simply by referring to boilerplate clauses, or definitions, in the Foodstores sales agreement. The judge made it as clear as he could, and as clear as could be, that the mere reference to defined terms, and clauses, in the sale agreement does not identify the elements of the business, nor would they assist any business valuation expert. Mr Potts also draws the court’s attention to the fundamental failure on the part of the applicants to address, and accommodate, the obvious fact that any business valuation would need to take account of the competition issues that would arise on any open market sale of a large supermarket business.(5) The amendments are ‘very late’, in that they will cause the trial date to be lost because of the additional work that will result both before and at the trial. Forcing the respondents to squeeze all the necessary new steps in alongside their already heavy trial preparation is to ask the impossible; and is, in any event, fundamentally unfair.(6) Any adjournment of the existing trial window will cause serious prejudice to the respondents in relation to a claim that already involves a substantial dependence on the recollections of witnesses about events taking place over ten years ago. It will also prejudice other court users.(7) Any injustice to the applicants is self-inflicted and should carry little weight. Mr Potts refers me to observations of Coulson J in CIP Properties AIPT Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345 (TCC), (2015) 160 Con LR 73 at [41] to the effect that the prejudice to claimants of being unable to pursue a claim if their proposed amendments are refused “is significantly diluted if, on the facts, the lateness of the amendments was the claimant’s responsibility in the first place”. The weakness, and the difficulties, of the proposed amendments also diminish any potential injustice to the applicants. Overall, the prejudice to them is insufficient to surmount the heavy burden that lies on the applicants to justify vacating the trial. Indeed, any suggested prejudice may be entirely illusory because it is quite possible that the applicants may have a remedy, albeit one that would lie in other proceedings, and against defendants other than the respondents.(8) Weighing everything in the balance, the amendments should be refused in accordance with the overriding objective. The casual approach to the adjournment of the trial that is suggested in the applicants’ skeleton argument is redolent of the pre-CPR approach to late amendments. It is entirely inconsistent with the modern approach to the pursuit of civil litigation, and the post-CPR authorities. These are not matters that can be compensated by costs or other matters. They go to the respondents' fundamental right to have their case heard, their expectation that a trial fixture will be kept, and the integrity of the court process.

IV: Analysis and conclusions

[56]Ultimately, the application for permission to rely on expert business valuation evidence will stand, or fall, with my decision on the amendment application. In determining that application, in my judgment, the following roadmap provides the surest route to arriving safely at my ultimate destination. First, I must consider the respondents’ limitation arguments because they go to jurisdiction, rather than discretion. Secondly, and provided there is no jurisdictional bar to amendment, I must determine whether this is simply a ‘late’ application or a ‘very late’ application, in the sense that it will cause the loss, or at the very least seriously threaten the integrity, of the existing trial dates. Finally, I must consider the exercise of the court’s discretion generally.

(a) Limitation

[57]It is common ground that it is (at the very least) reasonably arguable that the opposed amendments are outside the applicable limitation period. Claims under ss. 238 and 239 of the Insolvency Act 1986 are subject to a six-year limitation period where it can fairly be said that the substance, or the essential nature, of the claim is one to recover a sum of money, as this claim is: see the decision of Mr John Randall QC (sitting as a deputy judge of the High Court) in Re Priory Garage (Walthamstow) Ltd [2001] BPIR 144. I consider that it is no coincidence that this insolvency application was commenced just a few days short of the sixth anniversary of FROL’s administration. The first step in the four-stage test in Geo-Minerals therefore falls to be resolved in the respondents’ favour.[58]The second hurdle the applicants must overcome is to discharge the burden of satisfying the court that the proposed amendments do not seek to add, or substitute, a new cause of action. In my judgment, they have failed to do so. Consistently with the judgment of Fancourt J, when he refused the application to rely upon expert business valuation evidence, in my judgment, the proposed addition of the claim that the alleged transaction at an undervalue comprised, or included, the sale of the food retail and petrol business carried on from the properties sold by FROL to Foodstores, as well as the properties and related assets themselves, involves the addition of a new cause of action. On this aspect of the case, I accept the submissions of Mr Potts and Mr Parfitt; and I reject the submissions to the contrary of Lord Wolfson and Mr Goldfarb. Indeed, I consider the latter submissions to be untenable in light of the reasons Fancourt J gave for his decision in his judgment.[59]By s. 238 (4) (b) of the Insolvency Act 1986, a company enters into a transaction with a person at an undervalue if “the company enters into a transaction with that person for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the company”. The particular transaction which is the subject-matter of the claim brought under s. 238 is one of the facts which it is material for the applicants to prove in order to entitle them to succeed. The same is true of the consideration passing on each side of the transaction. These are part of the bare minimum of essential facts which have to be abstracted from the original pleading, and compared with those contained within the new pleading.[60]As presently pleaded (in paragraph 19b of the points of claim), one of the principal elements of the transaction is “the sale of properties and other assets by FROL to Foodstores … on 2 November 2015 (‘the Asset Disposal’) for a stated consideration of £496,334,267 (‘the Asset Disposal Consideration’)”. This then feeds through into paragraph 30a, which pleads, in respect of the Asset Disposal, that “a sale agreement was entered into between FROL and Foodstores on 2 November 2015, effecting a disposal of 121 freehold properties and 315 leasehold properties, along with a small number of other assets (‘the Foodstores Sale Agreement’)”. Paragraph 57a then pleads that the consideration provided by FROL within the transaction was as follows: “FROL transferred properties and assets with a stated value of £496,334,267 to Foodstores under the Foodstores Sale Agreement”.[61]The latest version of the revised draft amended points of claim introduces the concept of ‘the Foodstores Disposal’, which is pleaded (in paragraph 19a) as “the sale of assets, properties, and the food retail and petrol sales business carried on from those properties by FROL to Foodstores pursuant to an ‘agreement for the sale and purchase of business and assets’ dated 2 November 2015”. The ‘Foodstores Sale Agreement’ is re-defined in paragraph 30a in terms of “a sale ‘agreement for the sale and purchase of business and assets’ … entered into between FROL and Foodstores on 2 November 2015”. Paragraph 57a pleads the consideration provided by FROL within the transaction in terms of “the true value of the transferred properties, business and assets with a stated value of £493,002,792”.[62]Mr Potts and Mr Parfitt point out that the present claim complains about the undervalue or preference involved in the transfer of certain properties and assets under the Foodstores and Rochpion sale agreements. The joint liquidators specifically plead (at paragraph 57 of the present points of claim) that these properties and assets are the consideration that FROL provided. As Fancourt J has determined, there is no allegation in the original points of claim that there was any transfer of a business. These proceedings are not currently a claim about the transfer of a business in any way. It is a necessary component of a s. 238 claim for the liquidator to plead and prove the value, in money or money’s worth, of the consideration provided to, and given by, the company. What was given away, and what it was worth, are factual components of the statutory cause of action. In the same way, the statutory cause of action requires the liquidator to plead and prove that a preference put a creditor in a better position in the event of an insolvent liquidation of the company. This means that the liquidator must plead and prove what the creditor received so as to put him into that better position.[63]A liquidator could not succeed on a claim under ss. 238 or 239 relating only to the transfer of a business if that transfer could not be established on the facts. The transfer of a business is therefore a necessary factual component of these causes of action, and so represents a different cause of action from a s. 238 or 239 claim that relates only to the transfer of properties and assets. Mr Potts and Mr Parfitt say that that is the position here. A claim about an undervalue or preference arising from the transfer of a business involves the joint liquidators pleading and proving that transfer as a matter of fact. Adding that now means there is a new cause of action.[64]I accept, and adopt, that analysis. In my judgment, it flows inevitably from the reasoning that underlies Fancourt J’s decision on the application for permission to rely on expert business valuation evidence. Lord Wolfson submits that it would be wrong to apply the approach taken by Fancourt J to the present application. He points out that Fancourt J was dealing with the entirely different issue of whether or not to grant permission for expert evidence. The rationale of his judgment is simply that, without a pleaded case, the court will not give permission for expert evidence. Lord Wolfson contends that just because the applicants are adding a new factual case, this does not mean that they are adding a new cause of action, as that term is used in the Limitation Act and CPR 17.4. He says that this is a non sequitur. It assumes that just because Fancourt J decided that there was no pleaded business sale, any amendment which introduces a new case relating to a business sale must be a new cause of action. That, Lord Wolfson says, is simply wrong. I disagree with these submissions.[65]The joint liquidators allege a transaction at an undervalue. As originally pleaded, they say that that transaction was the sale of properties and assets. They now seek to say that the transaction was, or also included, the sale of a business, which was worth substantially more than the sum of its underlying parts. In my judgment, that involves the assertion of a different transaction, with a different combined value, and thus seeks to raise a new cause of action.[66]In my judgment, this case is very different from the situation that fell to be considered in Shell v Alame, which was cited by Lord Wolfson in support of his submissions. I doubt whether much is to be gained from looking at this authority, because each decision in this area of the law and practice is intensely fact-specific. But, if anything, it seems to me to support the respondents’ submissions, rather than the case advanced by Lord Wolfson. The key to this fact-specific decision is to be found at [10], where Stuart-Smith LJ states this: It is clear beyond argument that the 10 specific spills listed in para 25 did not purport to be a list of all spills upon which the claims were based. This was made clear by(a) the words ‘inter alia’ in para 25 itself,(b) paras 26 and 27 with their references to the happening of other spills than the 10 currently pleaded spills and the claimants' reservation of their position in relation to other spills that had not been publicly recorded,(c) the reference to the regularity of oil spillages and discharges over a prolonged period, which evidently included many more than the 10 specified spills, and(d) the obvious disparity between the limited quantities of oil involved in the 10 specified spills and the very extensive damage that is alleged to be the subject of the claimants' claims. The claimants' case was always that between 2011 and 2013 there was a much more extensive series of spills from the Bille Pipelines and Infrastructure, which resulted in the discharge of significant volumes of crude oil into the Creek and of which they were giving the best particulars that they could in para 25.[67]Clearly, the new oil spills were part of the facts pleaded in the original claim, rather than an attempt to introduce multiple new causes of action. In the present case, Fancourt J has already looked at the existing pleadings. He has held that these do not include any claim relating to the sale of a business whatsoever. I agree with Mr Potts that Alame v Shell represents the precise opposite of Fancourt J’s express finding (from which there has been no appeal). I would not go quite so far as Mr Potts’s assertion that Alame v Shell actually proves his point for him because each case turns on its own peculiar facts. But here there are already findings of the court which are precisely to the opposite effect of those found in Alame v Shell.[68]For these reasons, I hold that the applicants fail at the second stage. It is therefore necessary to proceed to consider the third of the four-stage Geo-Minerals test, and inquire whether the new cause of action “arises out of the same facts or substantially the same facts as are already in issue” in the existing claim. In my judgment, the applicants have discharged the burden that lies upon them of satisfying this test.[69]I recognise that ‘the same or substantially the same’ is not synonymous with ‘similar’. This involves a question of analysis rather than of mere impression. The purpose of the requirement at stage 3 is to avoid placing a defendant in a position where he will be obliged, after the expiry of the limitation period, to investigate facts and obtain evidence of matters “completely outside the ambit of and unrelated to the facts which he could reasonably be assumed to have investigated for the purpose of defending the unamended claim”. The court must therefore consider the extent to which, if the amendment were allowed, the defendant would be required to embark upon an investigation of facts which it would not previously have been concerned to investigate. At stage 3, the court is concerned at a much less abstract level than at stage 2. It must consider the whole range of facts which are likely to be adduced at trial.[70]Here, the amended claim is founded upon the very same written agreement that formed the basis of the originally pleaded claim. That agreement is described on the frontsheet as an “AGREEMENT for the sale and purchase of business and assets”. Clause 1 (headed ‘Definitions’), includes a definition of ‘Business’ as meaning “the food retail and petrol sales business carried on by the Seller at the Properties immediately prior to the Effective Date”. Clause 3 is headed ‘Sale of the Business and Assets’. Clause 3.1 provides for the sale and purchase “of the Business as a going concern and each of the Assets with effect from the Effective Date (save in respect of the Properties to which the provisions of schedule 1 shall apply) for the consideration set out in this Agreement”.[71]Paragraph 18 of the original points of claim pleads: Between October 2015 and February 2016, FROL was restructured through one or more transactions referred to at the time as ‘Project Chicago’ (referred to hereinafter as ‘the Transaction’). The Liquidators’ primary case is that the Transaction comprised a single transaction for the purposes of sections 238 and 239 of IA 1986. This paragraph survives unaltered into the revised draft amended points of claim.[72]Paragraph 19 sets out “the principal elements of the Transaction”. For present purposes, the relevant part of the transaction is pleaded at paragraph 19b. This is described as “the sale of properties and other assets by FROL to Foodstores and Rochpion on 2 November 2015 …” The applicants now seek to re-characterise this transaction as the sale of “assets, properties, and the food retail and petrol sales business carried on from those properties”. However the underlying agreement, the parties (other than Rochpion), and the stated consideration all remain the same. In my judgment, by expanding the scope of this “single transaction” for the purposes of ss. 238 and 239, effected by the same, already pleaded, underlying agreement, so as to refer to the sale of a business carried on from the relevant properties, the respondents will not be required to investigate facts, and obtain evidence of matters, which are “completely outside the ambit of and unrelated to the facts which [they] could reasonably be assumed to have investigated for the purpose of defending the unamended claim”. Although this is a new claim, in my judgment it “arises out of the same facts or substantially the same facts as are already in issue” in the existing claim.[73]Mr Potts and Mr Parfitt rely upon an observation in the leading judgment of Hobhouse LJ in Lloyds Bank plc v Rogers, unrep. (20 December 1996) (at the top of page 5 of the Thomson Reuters transcript). Reproduced in full, this reads:
“The policy of the section is that, if factual issues are in any event going to be litigated between the parties, the parties should be able to rely upon any cause of action which substantially arises from those facts.”
This was said in the context of rejecting the bank’s argument that the policy of s. 35 of the Limitation Act 1980 “… is not to allow parties to be prejudiced by stale claims and to require issues to be litigated whilst they are fresh. It is contrary to this policy to allow a factual allegation first made outside this period to justify introducing a claim which ought to have been made earlier.” Hobhouse LJ explained that s. 35 contemplates that the introduced cause of action will be time barred. There is no indication in the drafting of the Act that there should be any further limitation on the section. If there was any relevant prejudice to the party opposing the amendment, that could, and should, be taken into account in the exercise of the court's discretion whether or not to allow the amendment. The bank’s arguments on jurisdiction therefore failed. I do not read Hobhouse LJ’s judgment as laying down any comprehensive, or definitive, legal test in terms which would conflict in any way with the observations in Diamandis, as accepted and adopted in Geo-Minerals.[74]Mr Potts and Mr Parfitt contend that the transfer of a business, what that business involved, what the market for it was, and what its value was are not factual issues which are, in any event, going to be litigated between the parties on the applicants’ presently pleaded case. They say that if these amendments are allowed, the respondents are going to have to embark on investigations quite different from those which they have faced for the last three years of litigation on the applicants’ original claim. Stepping back, the purpose of CPR 17.4 and s. 35 of the Limitation Act 1980 is to prevent parties having to investigate facts, and obtain evidence of matters, completely outside the ambit of, and unrelated to, the facts which could reasonably have been assumed to need investigation (as it was put in Diamandis). The factual issues about the nature and extent of the business supposedly transferred by FROL to Foodstores fall into this category. These matters have formed no part of the dispute in this litigation until now, six months before a long-awaited trial, ten years since the impugned transaction, and more than two years after the limitation period expired.[75]I agree that the sale of a business, as distinct from properties and other assets, has formed no part of the pleaded claim until now. Fancourt J has already held that this is the case. But I do not accept that by allowing these amendments, the respondents will be required to investigate facts, and obtain evidence of matters, which are “completely outside the ambit of and unrelated to the facts which [they] could reasonably be assumed to have investigated for the purpose of defending the unamended claim”. The respondents were already required to investigate the true scope, and effect, of, and the consideration passing under, the Foodstores sale agreement; and they have, in fact, already done so. This is exemplified by paragraph 49(3) of the joint skeleton argument of Mr Potts and Mr Parfitt. There they acknowledge that the respondents’ witness evidence discusses the central support services that had been provided to FROL. This is one of the things that FROL lacked that the respondents say mean that it had no functioning business to sell. Counsel say that this evidence was directed to the question whether the respondents’ threat to withdraw those services in the “transaction demand” was genuine. That was how the issue for disclosure was framed. The witness evidence is therefore high-level, rather than providing any granular detail about whether FROL had a business it could have sold. The focus is said to be on whether FROL could have stood on its own, without the relevant support services, not whether it had a business which it had actually sold off as part of the pleaded transaction. They say that it would be impossible to instruct any expert to value any supposed business based on this witness evidence. That may well be correct. But it all does tend to show that the re-characterisation of the transaction as the sale of a business, as well as, or instead of, a sale of properties and assets will not require the respondents to investigate facts, and obtain evidence of matters, which are “completely outside the ambit of and unrelated to the facts which [they] could reasonably be assumed to have investigated for the purpose of defending the unamended claim”.[76]This is borne out by the terms of the respondents’ re-amended points of defence. The authorities recognise that, when identifying what are the relevant facts in the original pleadings, a material consideration is the factual matters raised in the defence. As Mr Potts and Mr Parfitt point out (at paragraph 67 of their joint skeleton), the respondents have already pleaded (at paragraphs 36 (6) and (7) of their re-amended points of defence) that:(1) “Prior to Project Chicago, all [FROL’s] stores (however branded) were reliant on the Co-op Group for their products, staff, marketing, IT systems, procurement, supply chain and logistics and estates services and were operated in a seamless way within Co-op Group’s wider food business (the ‘Food Business’).”(2) FROL “benefited, financially and operationally, from the Co-op Group’s scale and the strength of its retail proposition. But it was financially and operationally dependent on the Co-op Group in all key respects.” The respondents have clearly already investigated matters relevant to the new case that the transaction involved the sale of a business.[77]For all these reasons, I therefore hold that there is no jurisdictional bar to the court entertaining this amendment application.

(b) Lateness

[78]I must now move to consider whether this is simply a ‘late’ application, as the applicants accept, or a ‘very late’ application, in the sense that it will cause the loss, or at the very least seriously threaten the integrity, of the existing trial dates.[79]I accept that ‘lateness’ is a relative concept. The same applies when considering whether an amendment is ‘very late’. In Quah Su-Ling, Carr J (at [38 (c)]) describes a ‘very late amendment’ as “one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost”. By contrast, Bryan J in Invest Bank (at [47]) and Coulson J in CIP Properties (at [19(b)]) characterise a ‘very late’ amendment as one which “threatens the trial date itself”, adding the observation that this is the case even if “the trial is still some way off”, or the amendment application is made “some months before the trial is due to start”. Carr J speaks in terms of the certainty of losing the trial date; Bryan and Coulson JJ in terms of the threat of doing so. Insofar as there is any difference between them, I prefer the latter approach, provided the threat of losing the trial date is a real one. That is because there may often be uncertainty about the effect of the proposed amendment on the progression of the case to trial. The underlying principle is that parties have a legitimate expectation that trial dates will be met, and not adjourned without good reason.[80]I am not satisfied that permitting these amendments will certainly cause the existing trial window to be lost. With some six months still left until the trial window, I consider that such a degree of absolute assurance is impossible of attainment. With a spirit of co-operation, goodwill, and collaborative working on both sides, involving the application of considerable additional legal and financial resources, the existing trial window might still just be achievable. However, permitting the amendments now will undoubtedly impact seriously, and adversely, upon the respondents’ preparations for trial; and may well imperil the forensic practicability of the existing trial window. I am entirely satisfied, therefore, that permitting these amendments will certainly “threaten” the existing trial window. It would create a real, and appreciable, risk that the existing trial dates will be lost. Indeed, for the following reasons, I consider this to be more likely than not.[81]Mr Potts and Mr Parfitt point to, and rely upon, the observation made by one of the joint liquidators, Mr Cohen, at paragraph 45 of his second witness statement, dated 30 October 2024, made in response to an application by the respondents seeking an extension of time for disclosure:
“This is a large claim and there is a packed timetable in 2025. I do not consider this pattern of behaviour by the respondents is appropriate and it risks putting the trial timetable in jeopardy.”
Counsel observe that, if anything, the timetable has become more packed and compressed in the second half of this year as there has been some slippage in the timetable for the exchange of expert evidence. I cannot ignore the applicants’ own assessment that, as at late October 2024, the timetable leading to trial was already “packed”.[82]I consider that the timetable proposed by the respondents is unduly lengthy and could certainly be compressed. As at present advised, I am not convinced of the need for any expert competition evidence, for the reasons given by the applicants. If I were to give permission to amend, I could dispense with any further formal disclosure, although I appreciate that the respondents would probably need to undertake their own trawl through further available documentation in order to identify any additional documents on which they themselves might wish to rely. However, I am satisfied that the business valuation experts must produce their reports, and (ideally) their joint statement, before the solvency experts can exchange their own reports and submit their joint statement. That is both consistent with the approach hitherto adopted in relation to the expert evidence, and accords with common sense. The applicants’ argument to the contrary ignores the sensible approach the parties have taken to the sequencing of the expert evidence thus far in the proceedings. The solvency experts’ reports and joint statement are presently scheduled for 29 August and 24 September respectively. These dates would therefore need to be put back. The applicants propose 24 October and 14 November for the exchange of expert business valuation reports, and the submission of their joint statement, respectively. At best, this would push back the expert solvency reports to late November/early December, and their joint statements to a later date still. Given the festive break, and the risk of any slippage, the maintenance of the existing trial window becomes extremely doubtful.[83]I do not accept the applicants’ submissions that the time remaining between now and the trial, presently floating in a five day window commencing on 12 January 2026, still less the period from now until the pre-trial review, in a window between 8 and 10 December 2025, is adequate to allow the respondents properly to prepare for this substantial trial. Even Lord Wolfson acknowledged that, realistically, the timetable proposed by the applicants was “a compressed timetable”. Lord Wolfson also recognised that the court might need to rule on the questions to be considered by the business valuation experts if the parties were not able to agree upon them. That would further delay matters, and put additional pressure upon the court’s resources, to the potential prejudice of other court users. Lord Wolfson also accepted that the court might take the view that it was not prepared to take the risk now of the parties coming back to court this November and saying that, whilst they had all done their very best, they would not be ready for trial this coming January. Realistically, he accepted that that would be a worse outcome for the court, and other court users, than adjourning the trial now. In that event, the applicants say that the importance of the new case to the applicants, and the prejudice to them of refusing the amendment application, are so great that the balance should be overwhelmingly in favour of permitting the amendments, and the expert evidence that goes with them, and adjourning the existing trial dates.[84]The respondents further object that the expansion of the basis of the joint liquidators’ claim, and thus the scope of the trial, together with the need for at least an additional two expert witnesses, will inevitably impact upon the existing trial estimate. This would need to be expanded. My inquiries of the Listing Office suggest that it might be possible to accommodate up to an additional week in court at the end of the existing seven weeks’ trial estimate. Whether this additional time could, in fact, be made available, and, if so, whether it would prove adequate, are just two more variables to throw into the mix.[85]All of these factors lead me to the inevitable conclusion that the present application should fall to be treated as a ‘very late’ amendment application, which may very well imperil the existing trial dates.

(c) Discretion

[86]Having held that there is no mandatory bar to permitting these ‘very late’ amendments, I must proceed to consider whether to permit the amendments in the exercise of the court’s discretion. Lord Wolfson and Mr Goldfarb address the prospects of success of their amended case, and the respondents’ complaint about the lack of particularisation, at paragraphs 26-34 of their joint skeleton. They address the balance of prejudice at paragraphs 35 and following. Mr Potts and Mr Parfitt address the want of any good reason for these late amendments, the lack of any properly particularised claim, the lateness of the amendments, and the balance of prejudice, at paragraphs 51 and following of their joint skeleton. Both leading counsel expanded upon their written arguments in oral submissions to the court.[87]The evaluation of the balance of prejudice requires the court to make findings about a number of relevant factors in order to undertake a multi-factorial exercise of the court’s discretion which involves weighing the factors which point to the grant of permission against those which weigh against it.[88]First, the prospects of success. I am satisfied that the proposed amendments plead a conventional case involving the sale of a business founded upon the unambiguously expressed terms of the Foodstores sale agreement. The proposed amendments have a real prospect of success; and there are reasonable grounds for concluding that the value of the business that FROL transferred to Foodstores was very substantial indeed. These are matters to be determined at trial. As the applicants say, had this new case been pleaded at the outset, it would plainly have fallen to be determined at trial with the assistance of business valuation expert evidence. There could be no serious suggestion that it would have been amenable to a reverse summary judgment application by the respondents. This factor favours the applicants, and points to the grant of permission to amend.[89]Secondly, inadequate particularisation. The respondents complain that the amendments are not properly particularised, and fail adequately to address points recently drawn to the applicants’ attention by Fancourt J. In my judgment, there is force in this point. Fancourt J (at [29]) indicated that if “the claimants were to apply to amend their claim, they would have to provide a proper pleading giving particulars of the nature and extent of the business that was sold, what it actually comprised and what (e.g.) goodwill would go with the business, so that a business valuation expert would know what it was that they were valuing”. I agree with Mr Potts and Mr Parfitt that the applicants have not done this.[90]Paragraph 30ab of the latest revision of the amended points of claim identifies (by citing from clause 3.2 of the Foodstores sale agreement) a list of the assets that were transferred from FROL to Foodstores; but this is expressed (in parenthesis) to be “in addition to the Business referred to above”. At paragraph 47A(a) of the latest revision of the amended points of claim, the joint liquidators provide some particulars of what the business included. They plead that the “Business inherently includes goodwill, being, inter alia, the custom of people who frequented one or more of the Transferred Properties prior to the effective date, and who were likely to continue to frequent them (or any of them) under their new ownership”. In this way, the applicants pick up one of the missing components given (by way of example) in Fancourt J’s judgment at [29]. However, Mr Potts and Mr Parfitt complain that they go no further. The problem is that, if there was (for example) no supply chain, there would be no business to sell, and no business to operate. The joint liquidators have known that they would face this problem, but they have chosen to ignore it. This is contrary to what Fancourt J told them that any amended pleading would need to set out. It also means that no business valuation expert can properly be instructed. The question ‘what was the alleged business’ remains unanswered. The respondents say that quite apart from this, in itself, being a sufficient reason for refusing permission to amend, the applicants’ inability to particularise the nature of the business transferred to Foodstores indicates the weakness of the case they now seek to advance.[91]The applicants say that the complaint that the proposed amendments do not sufficiently particularise the business alleged to have been sold is an easy one to state, but it is not clear what it means in practice. The proposed amendments plead what was sold expressly by reference to the terms of the Foodstores sale agreement, which carefully defines both what was sold (the business and the assets, as listed in clause 3) and also what was not sold (the excluded assets, as listed in clause 4). The complaint of inadequate particularisation is said to ring particularly hollow coming from the respondents, who, unlike the liquidators, sat on both sides of the transaction and therefore know exactly what the business was that was operated from each of the properties prior to their transfer, exactly what they themselves acquired, and also exactly what they did not acquire. If, in due course, the respondents really need to be told any more, which is unlikely given their position, the applicants say that they can seek further information under CPR Part 18.[92]In response, the respondents point to the period of more than six years the liquidators have been in office, and the two year period of administration that preceded it. The insolvency office holders have had more than enough time to investigate matters fully, garnering the necessary background information pursuant to their considerable statutory powers. Having been put on notice of the need to identify the constituent elements of the business upon which they now seek to rely as the subject-matter of the sale and purchase transaction, these details should not have to be left over to any Part 18 request.[93]On this aspect of the case, I agree with the respondents. Having left it until so relatively close to trial to seek to make their amendments alleging a new case, the applicants should have put forward properly particularised amendments, adequately outlining their full case. Whilst the lateness of a pleading does not change the essential elements of what must be pleaded, the later an amendment is made, and the closer to trial, the greater the need for full and proper particulars, because of the limited time that remains time to cure any deficiencies. This second factor favours the respondents, and the refusal of permission to amend.[94]Thirdly, the reasons for the late amendment. I am satisfied that the joint liquidators have provided no good explanation as to why these very late amendments were not raised at a very much earlier stage in these proceedings. I agree with the respondents that this is inexcusable. The joint liquidators say that the need for the joint liquidators expressly to plead a business sale did not become apparent until the judgment of Fancourt J. I have some difficulty in accepting this. Had the applicants understood that their pleaded case involved the sale of a business, I would have expected the parties to have addressed the need for expert business valuation evidence at the same time as they considered, and addressed, the other required fields of expertise. But on the footing that this explanation is indeed correct, then I am satisfied that there is simply no good explanation, or valid reason, why the applicants could not have advanced, and run, this new case since the very start of these proceedings. This is not a case where something unexpected has emerged from any disclosure or witness evidence. As Fancourt J noted, if this transaction involved the sale of a business, that should have been obvious to the applicants all along. At [30], the judge said this: This issue of business valuation cannot be a matter that has arisen out of the blue. The terms of the sale agreements are self-evident and if the transaction was really the sale of a business as a going concern, that would surely have been raised before November 2024, more than 18 months and two case management conferences after the issue of the originating application notice. It would have been obvious that valuing the properties and certain other assets was different from valuing an entire business, if there was a viable business.[95]It is for the party who seeks the indulgence of the court to allow it to raise a late claim to provide a good explanation for the delay. The history of the amendment, and the explanation for its lateness, are important factors in the necessary balancing exercise. There must be a good reason for the delay. I am satisfied that there is no such good reason in the present case. This third factor also favours the respondents. In saying this, I should make it clear that I attach little weight to the delay since this application was issued on 25 April 2025. My reading of the CE-File for this case is that the applicants were flexible about the return date of the application. It was the respondents who indicated a considerable number of dates to avoid. The hearing was listed on 8 May 2025. As Lord Wolfson pointed out, since then, the parties have had to wait for the application to come on for hearing on 27 June 2025. In my judgment, it would be unduly harsh to the applicants for this court to hold them responsible for the inevitable delay in reaching a hearing date for their application. In any event, on the respondents’ case, those seven lost weeks would probably have made no real difference to the issue of whether the existing trial dates can be maintained or not. But the applicants are responsible for the delay prior to 25 April; and there is no valid excuse for that delay. I accept the respondents’ submission that they were not required to divert themselves from their existing trial preparations in order to meet the new case sought to be advanced by the applicants in advance of the final determination of the combined application to amend and to rely upon expert business valuation evidence. Until then, all preparations for trial were required to proceed on the basis of the applicants’ presently pleaded case.[96]Fourthly, the question of prejudice. In circumstances where(1) the proposed amendments are admittedly ‘late’, in the sense they could in principle have been pleaded earlier (and I have found them to be ‘very late’); and(2) they plainly have a real prospect of success, the applicants acknowledge that the court will need to weigh the injustice to the joint liquidators of refusing permission against the prejudice to the respondents, and other court users, of allowing the amendments. The applicants contend that the limited prejudice of adjourning the trial at this stage would not justify refusing the amendments. These are so important to the applicants that they should be permitted even if this would cause the trial date to be lost. Losing the trial date at the present time would be regrettable, but ultimately of only limited consequence, given that the trial costs will not yet have been incurred, and the court will have time to fill the resulting gap in the list with other matters. Adjourning the trial would still be preferable to shutting out the true basis for the joint liquidators’ claim. The respondents are said to have identified no real prejudice beyond what is inherent in any amendment — prejudice which can be adequately compensated in costs. Accordingly, the joint liquidators respectfully invite the court to grant permission for the amendments.[97]I find that the refusal of permission to amend may well cause substantial prejudice to the applicants, and thus to the company’s creditors. The joint liquidators’ case at trial will have to proceed on the entirely false factual, and legal, premise that there was an asset-only disposal to Foodstores. This may well undervalue the liquidators’ claim by hundreds of millions of pounds. If the amendments are refused, and there is no expert evidence as to the value of the business transferred, the liquidators will, in effect, be limited to contending that the consideration provided by FROL to Foodstores was the break-up value of the assets transferred. Without embarking upon any detailed analysis of the evidence, I note that the applicants suggest that the difference between the estimated value of the consideration provided by FROL on the amended case of some £632 million (based on a business valuation), and the asset-only valuation on the existing case of only some £203 million (based on previous valuation reports obtained by the respondents), may be determinative of whether the transaction was or was not one at an undervalue. The importance of these amendments to the joint liquidators is evident from the investment they have made in this application. The applicants’ statement of costs for this hearing comes out at a total of some £435,000 (as against a figure for the respondents in the order of £176,000).[98]The respondents urge that if the trial date is lost by permitting these very late amendments, this will cause the most serious prejudice to them:(1) Parties to litigation and the court have a legitimate expectation that trial fixtures will be kept: see Quah Su-Ling at [38](c). This expectation is a strong factor in itself.(2) The respondents’ defence to the claim depends on oral evidence from the directors concerned in the transaction about their subjective states of mind. This is relevant to the defences under ss. 238(5) and 239(5). This transaction took place almost ten years ago (in 2015), and it is already fading from the witnesses’ memories. The longer the trial is delayed, the worse this will become.(3) A seven-week trial will take a long time to be relisted, particularly given the number of counsel involved in this case, and the large number of experts, all of whom have been instructed on the basis of the current fixture.(4) The joint liquidators seem content to accept the risk that the trial might need to be adjourned. They focus on the allegedly limited costs impact on the respondents, given that brief fees have not yet been incurred. This is exactly the approach which Carr J rejected in Quah Su-Ling at [38](e) in the following words: … gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation …[99]Even if the trial date can be kept (which the respondents do not accept), they say that they will still suffer serious, and unacceptable, prejudice if the amendments are permitted. In particular, this would cause very considerable disruption of, and additional pressure to, the respondents’ lawyers in the run-up to trial, as well as considerable duplication of cost and effort. The overriding objective includes “ensuring that the parties are on an equal footing”. Permitting the proposed amendments would ensure the opposite:(1) The amendments will divert significant work away from the parties’ trial preparation, with the additional burden falling overwhelmingly on the respondents at a time when they should be entitled to be preparing for the existing trial.(2) The burden of any necessary disclosure and witness evidence in support of the respondents’ denial that FROL had a business to sell will, unusually, fall wholly on the respondents. This relates to the period of time before the transaction in November 2015, and may involve going back into the original acquisition by the Co-operative group of the Somerfield business (and potentially other property sales by the Co-operative to other retailers around the time of this transaction). It is the respondents who are the custodians of any relevant documents. It is their employees who are the only possible factual witnesses (and, in any event, the applicants are calling no factual witnesses at all). All the additional work is going to fall on the respondents, unfairly derailing their existing preparations for trial.(3) The joint liquidators cannot say that it is the respondents who are in any way to blame for the burden they face because they have not pre-emptively commenced the necessary work: there was no obligation on the respondents to take any steps to divert themselves from their trial preparations in order to prepare to meet a case which is the subject of a contested application for permission to amend in advance of the hearing of that application: see Invest Bank at [45]. That is not surprising: a respondent should not have to expend time and costs in addressing a case which the applicant has not yet obtained permission to advance.[100]Turning to the impact upon third parties, the respondents say that if the existing trial window is lost, there will be serious prejudice to other court users. The existing fixture may not be usefully filled. The applicants’ evidence also completely ignores the fact that an additional further lengthy trial window will need to be found. This will therefore occupy substantial additional (and scarce) court resources, causing disruption and delay to other court users who would otherwise have been able to have their cases dealt with earlier. The joint liquidators ignore the seriousness of this factor. It cannot be swept aside. It is a key component of the overriding objective, which the court is required to apply in the exercise of its discretion. The risk to a trial date may mean that the lateness of the application will of itself cause the balance to be loaded heavily against the grant of permission: see Quah Su-Ling at [38(b)], where Carr J said this: … where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment 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. 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 …[101]Finally, and turning to the prejudice to the applicants themselves, Mr Potts and Mr Parfitt say that since that there is no good reason for the lateness of this amendment application, any prejudice to the joint liquidators is self-inflicted, and is consequently diluted. At its highest, the applicants say that they would be prejudiced by not being able to advance the ‘real dispute’ between the parties. Some indicative figures are put forward to suggest that their claim will be worth very much more if the amendments are allowed. But, the respondents’ counsel ask rhetorically: “So what?” This is just one of the factors to weigh in the balance; and given that this was a self-inflicted wound, it should not weigh very heavily. It should not be forgotten, so the respondents emphasise, that the characterisation of the transaction as the sale of a business was something the applicants have been able to overlook until now. If this were a good point, it would have been “obvious”, as Fancourt J noted. The joint liquidators are also still unable to provide any proper particulars of this new transaction, which casts further doubt on the injustice of preventing them from changing their case in this way.[102]Overall, weighing all these factors in the balance, the respondents submit that the joint liquidators do not come close to discharging the heavy burden which lies upon them on this amendment application. It would not be in accordance with the overriding objective for these amendments to be allowed at this very late stage.[103]I accept the respondents’ submissions. I recognise that the court is only concerned with any prejudice to the respondents caused by the fact of the amendments and their timing, rather than the inevitable prejudice they would experience in having to face a more valuable claim against them. It is always inconvenient for any party to face a more valuable claim than the one they have previously had to face; but if that claim is a reasonable one to pursue, then there is no additional relevant prejudice caused by an amendment to which no objection can be made, compared with the position if the amended case had been pleaded from the outset.[104]The court always has to strike a balance between injustice to an applicant if their proposed amendments are refused, and injustice to the opposing party if they are permitted. Prejudice to the amending party includes the inability to advance its amended case. However, any prejudice caused to the applicant by a refusal of leave may be “diluted” if the amendment is ‘very late’, and no good reason is advanced for that lateness. That is the case here. It is for the party who seeks the indulgence of the court to raise a late claim to provide a good explanation for their delay in doing so. The court must consider the history of the amendments, and the explanation for their lateness, as an important factor in the necessary balancing exercise. Weighing the balance of prejudice to the opposing parties always involves an evaluative exercise of the court’s discretionary case management powers, and the application of the overriding objective of dealing with the case justly and at proportionate cost.[105]Weighing all the relevant factors in the balance – including the amendments’ prospects of success, their inadequate particularisation, their lateness, the want of any good reason for their late appearance, and the balance of prejudice to the parties and other court users – for the reasons submitted by Mr Potts and Mr Parfitt, and rejecting the competing submissions of Lord Wolfson and Mr Goldfarb, in my judgment, the balance clearly falls in favour of the respondents, and against the applicants. I therefore refuse permission for the amendments. In consequence, I also dismiss the application for permission to rely upon expert business valuation evidence.[106]I should make it clear that I have considered whether I should grant permission to amend subject to conditions. The conditions I had in mind were:(1) dispensing with any further disclosure from the respondents;(2) allowing the parties a fortnight or so to attempt to agree suitable directions going forward to trial which might have served to preserve the existing trial window;(3) ordering that trial window to be vacated (with permission to re-list) if the respondents should report to the listing office that such directions could not be agreed; and(4) ordering the applicants to pay the costs thrown away if the trial window should ultimately have to be vacated. However, I concluded that it was so unlikely that the parties would be able to agree directions that would have preserved the existing trial dates that it would be preferable for the court to seize the nettle and vacate the trial now, in the interests of achieving certainty for the parties and other court users (and, in aid of the latter, the listing office).[107]This outcome may seem harsh to the applicants, and to FROL’s creditors. However, the applicants have only themselves (and, potentially, their advisers) to blame. I consider that justice to the respondents, and fidelity to the overriding objective, outweigh the resulting prejudice to the applicants.

V: Disposal

[108]For the reasons I have given, I find in favour of the respondents. I dismiss the joint liquidators’ application.[109]I invite the parties to seek to agree a substantive order to give effect to this judgment. The draft order should also provide for the costs of and incidental to the application.[110]If the parties cannot agree upon a suitable form of order, they should provide a draft composite order, containing their alternative versions, together with brief written submissions on any outstanding consequential matters, prior to formal hand-down. This should be no longer than is strictly necessary, and, in any event, no longer than five pages in length, employing a font size of no less than 12 points, and without any foot-notes or annexures. Unless I direct otherwise, I will proceed to determine any outstanding matters on the papers.[111]I propose formally to hand down this judgment remotely at 10.00 am on Tuesday 29 July 2025. No attendance is required. Subject to any submissions to the contrary, I will extend the time for any appeal to 28 days after formal hand down (i.e. to 4.00 pm on 26 August 2025) so as to give me up to seven days to consider and determine any application for permission to appeal. I direct that written submissions in support of any application for permission to appeal, with concise draft grounds of appeal, are also to be filed and served before the time of formal hand-down (i.e. by 10.00 am on 29 July 2025). Unless I direct otherwise, I will determine any such application on the papers.[112]I conclude by formally expressing my thanks to all four counsel (and their respective solicitors) for their considerable assistance in facilitating the disposal of this application.[113]That concludes this reserved judgment.

Cited in 3 later judgments