“6. Mascarenhas 18 attempts to portray the amendments as a limited particularisation of the Bank’s claim ahead of trial. In reality, the Bank’s numerous proposed amendments are an attempt substantially to recast its case at the eleventh hour. They include new allegations of dishonesty against Joan, a new claim against her for up to$15 million (which is in any event time-barred) and a new claim against both Joan and Mo that is also time-barred. 7. As I explain below, the amendments, if permitted, will require further investigation, further expert evidence, further factual evidence and further disclosure. This will inevitably result in the adjournment of the trial because that work cannot be done in the time that remains before trial; and the current 4-week listing is in any event inadequate to accommodate these further issues. … 41. Joan and Mo will invite the Court to dismiss the amendment application. As explained above, I do not, with respect, consider that a fair trial with the current trial date is possible if the amendments are permitted.”
“3. The Bank is a stranger to all [the] asset transfer transactions of D1. Its claims are necessarily inferential in nature. Its task has been to piece together what has happened from public records, disclosure and the explanations given by various Ds across their statements of case, interlocutory evidence and trial evidence in these proceedings. From these jigsaw pieces, an even clearer picture has emerged. The Bank moves to amend to put that clearer picture before the Court at trial for the just resolution of its s.423 claims. 4. D2, the eldest son of D1, and D6, the (ex-)wife of D1, lead the line in resisting this application. It is apparent that they wish to constrict the Bank (and the Court) in respect of the factual matters which may be considered when answering the central question for trial. The presentation of objections in Schalker-6 on the grounds of purported need for extensive additional disclosure, witness evidence and expert evidence is overblown and a case-study in the mischaracterisation of molehills as mountains. The only significant objection to (some of) the amendments is limitation but, as explained below, it would be most appropriate for such matters to be left for determination at trial (but if it is to be determined now, it plainly falls to be determined in favour of the Bank).”
“It is relevant to have regard to the degree to which the case sought to be advanced by the amendment is one that the parties have in fact already been addressing. In Hawksworth v Chief Constable of Staffordshire[2012] EWCA Civ 293 (CA) , the Court of Appeal stated, obiter, that it might appropriate to permit an amendment at trial in respect of a matter which, although not raised in the pleadings, had nevertheless been raised in some of the witness statements and experts’ reports served before trial. In Ahmed v Ahmed[2016] EWCA Civ 686 , the claimants applied to have letters of administration revoked on the basis that the will annexed to them had not been duly executed or witnessed. At the start of the trial the claimants obtained permission to amend their particulars of claim so as to allege that the will had been forged. The Court of Appeal dismissed an appeal against that grant of permission: the amendment was no more than a formality bringing the claimants’ case into line with what had been argued for at least six months; the appellants had not been taken by surprise by the amendment and, indeed, had themselves sought at the pre-trial review permission to call a handwriting expert.”
“Particularly in complex litigation, it is not unusual for amendments to be made to the statements of case to reflect changes in the parties' understanding of the issues and the other party's case, the emergence of new evidence, or developments in the law. The parties may also wish to amend the statements of case to reflect the evidence that they have served for adduction [sic] at trial or to narrow or perhaps to reformulate the issues in the action. This is a consideration which the Court should take into account in deciding how to dispose of the application having regard to principles of active case management and the furtherance of the overriding objective...”
“The test is comprehensibility and not elegance. The drafting of almost any pleading could be improved with hindsight and the task for the judge in assessing whether this precondition has been satisfied is not to assess the stylistic qualities of the draft but to see if it sets out the amending party's case in such a way that the other party knows the allegations it has to meet”
“fraud or dishonesty must be distinctly alleged and distinctly proved; it must be sufficiently particularised; and it is not sufficiently particularised if the facts pleaded are consistent with innocence. This means that a claimant who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and facts, matters and circumstances which are consistent with negligence do not do so…”
“Of course, the allegation of fraud, dishonesty or bad faith must be supported by particulars. The other party is entitled to notice of the particulars on which the allegation is based. If they are not capable of supporting the allegation, the allegation itself may be struck out.”
“Even after the application was made… where it was being opposed there was no reason, in my judgment, then for the claimant to take steps to meet the case that was being advanced in a proposed amended pleading, in respect of which no consent had been given and no permission provided by the court”
“(a)… An amendment is late if it could have been advanced earlier, or involves the duplication of cost and effort, or if it requires the resisting party to revisit any of the significant steps in the litigation (such as disclosure or the provision of witness statements and expert's reports) ... (b) An amendment can be regarded as ‘very late’ if permission to amend threatens the trial date, even if the application is made some months before the trial is due to start. Parties have a legitimate expectation that trial dates will be met and not adjourned without good reason. (c) 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… (e) The prejudice to the resisting parties if the amendments are allowed will incorporate, at one end of the spectrum, the simple fact of being ‘mucked around’, to the disruption of and additional pressure on their lawyers in the run-up to trial and the duplication of cost and effort at the other. If allowing the amendments would necessitate the adjournment of the trial, that may be an overwhelming reason to refuse the amendments. (f) Prejudice to the amending party if the amendments are not allowed will, obviously, include its inability to advance its amended case, but that is just one factor to be considered. Moreover, if that prejudice has come about by the amending party's own conduct, then it is a much less important element of the balancing exercise.”
“...if a very late amendment is to be made, it is a matter of obligation on the party amending to put forward an amended text which itself satisfies to the full the requirements of proper pleading. 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 that 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 rules”
“It is an elementary principle that the later the amendment, the greater the need for particularity… it is not for the Defendants to seek further particulars. At every stage a properly pleaded case must be set out; and particularly so when the application is made at this very late date”
“The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings”
“25. The relevant principles in respect of amendments which are outside a statutory limitation period are governed bysection 35 of the Limitation Act 1980 andCPR 17.4 . There is a four stage test, as explained in Ballinger v Mercer Ltd[2014] EWCA Civ 996 ,[2014] 1 WLR 3597 at [15] and Mulalley & Co Ltd v Martlet Homes Ltd[2022] EWCA Civ 32 at [38]: (1) Is it reasonably arguable that the opposed amendments are outside the applicable limitation period? (2) Did the proposed amendments seek to add or substitute a new cause of action? (3) Does the new cause of action arise out of the same or substantially the same facts as are already an issue in the existing claim? (4) Should the Court exercise its discretion to allow the amendment?”
“48. As regards Stage 2 (new cause of action) from the recent analysis of the authorities by Longmore LJ in Berezovsky v Abramovich §§59 to 69, the following principles arise: (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 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: Berezovsky §64 and Aldi §26. Nor is the addition of a new remedy, particularly where the amendment does not add to the "factual situation" already pleaded.” 49. 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: Ballinger §38. 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…”
“32 Postponement of limitation period in case of fraud, concealment or mistake. (1) … where in the case of any action for which a period of limitation is prescribed by this Act, either— (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant’s agent and to any person through whom the defendant claims and his agent. (2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.”
“[102]: “… The nature of circumstantial evidence is that its effect is cumulative, and the essence of a successful case based on circumstantial evidence is that the whole is stronger than individual parts …” [153]: “… this is an inferential case, as claims in conspiracy often are. There is an asymmetric relationship because by definition the claimant is not likely to have much by way of documents itself or direct evidence, quite often all it can do is raise inferences from the documents which it has. In such cases it is necessary to stand … back and consider … the effects of the implications of the facts … found in the round”
“It is not enough to assert that the debtor wished to protect assets and that this would have the result of adversely affecting any creditors in the future because it would inevitably diminish Mr Wotherspoon’s [the debtor] assets. There had to be, and there had to be in Mr Wotherspoon’s mind, creditors to whom he would in the future be unable to make payment and who may at some time make a claim.”
“it is to be inferred that the purported divorce agreement between Ahmad and Joan was subsequently devised by Ahmad to further the Alleged Purpose”