“4.1 It is premature for the Court to determine the applicable law in respect of the liability of the Defendants. It is the Claimants’ case that pursuant to section 11 and/orsection 12 of the Private International Law (Miscellaneous Provisions) Act 1995 liability in respect of risk management and auditing undertaken by the First Defendant fall to be governed by the law of England and Wales. It is averred that the appropriate juncture for the determination of the applicable law in respect of the actions of the First Defendant must await completion of disclosure, whereupon proper assessment can be made of the corporate structure of the First Defendant, its control and relevant actions. 4.2 To the extent that Peruvian law applies, the Claimants’ case is that Peruvian law is to be presumed to be identical to that of England & Wales unless and until the Defendants prove it otherwise.”
“Article 1969 He who through negligence or wilful misconduct causes harm to another is required to compensate it. The defence for lack of negligence or wilful misconduct is in the hands of the perpetrator. Article 1970 He who through risky or dangerous goods, or through the exercise of a risky or dangerous activity, causes harm to another, is required to make good such harm. Article 1978 He who incites or aids and abets in causing harm is also liable for it. The extent of the liability shall be determined by the judge in accordance with the circumstances. Article 1981 He who has others under his orders is held liable for the harm caused by the latter if the harm is carried out in the exercise of the duties or fulfilment of the respective service. The direct perpetrator and the indirect perpetrator are held jointly and severally liable. Article 1983 If several people are liable for the harm, they shall be held jointly and severally liable. However, he who paid the totality of the compensation may then repeat the claim against the others, with the judge setting the proportion according to the seriousness of the fault of each of the participants. When it is not possible to discern the extent of each participant’s liability, the share shall be calculated equally.”
“without prejudice to our clients’ right to argue at trial that … any such amendment would have been made after expiry of a relevant limitation period and so was impermissible … . In all these respects, and for the avoidance of doubt, our clients’ rights would be fully reserved.”
“Any claim advanced against the Defendants under Peruvian law for compensation in respect of extra-contractual liability which was first commenced more than two years after the date on which any damage sustained by the Claimants was known to them is a claim brought after the expiry of the relevant limitation period specified in Article 2001 of the Peruvian Civil Code. It should be dismissed on that basis.”
“[Linklaters’] advice to the Defendants and the Defendants’ communications with the Peruvian law experts they have instructed are, and remain, privileged. No waiver of that privilege is intended by or made in this letter. Subject to that reservation, the background to the insertion of para 109 and an explanation of the timing is as follows. The Defendants obtained advice regarding Peruvian law and the 2 year limitation period in 2013. Limitation was re-considered by the Defendants after receipt of the proposed amendments to the Claimants’ Peruvian law case that accompanied your letter of20 April 2017 . That re-consideration led to the reservation in our letter of24 April 2017 . This re-consideration preceded the instruction of Professor Bullard but, obviously, this was a matter which he was asked to consider once instructed.”
“… it is always a question of striking a balance. I would not accept that the court in that case sought to lay down an inflexible rule that a very late amendment to plead a new case, not resulting from some late disclosure or new evidence, can only be justified on the basis that the existing case cannot succeed and the new case is the only arguable way of putting forward the claim. That would be too dogmatic an approach to a question which is always one of balancing the relevant factors. However, I do accept that the court is and should be less ready to allow a very late amendment than it used to be in former times, and that a heavy onus lies on a party seeking to make a very late amendment to justify it, as regards his own position, that of the other parties to the litigation, and that of other litigants in other cases before the court.”
“In the modern era it is more readily recognised that in truth the payment of the costs of an adjournment may well not adequately compensate someone who is desirous of being rid of a piece of litigation which has been hanging over his head for some time, and may not adequately compensate him for being totally (and we are afraid there are no better words for it) "mucked around" at the last moment. Furthermore, the courts are now much more conscious that in assessing the justice of a particular case the disruption caused to other litigants by last minute adjournments and last minute applications have also to be brought into the scales.”
“Where a party has had many months to consider how he wants to put his case and where it is not by virtue of some new factor appearing from some disclosure only recently made, why, one asks rhetorically, should he be entitled to cause the trial to be delayed so far as his opponent is concerned and why should he be entitled to cause inconvenience to other litigants? The only answer which can be given and which, Mr Brodie has suggested, applies in the instant case is that without the amendment a serious injustice may be done because the new case is the only way the case can be argued, and it raises the true issue between the parties which justice requires should be decided. We accept that at the end of the day a balance has to be struck. The court is concerned with doing justice, but justice to all litigants, and thus where a last minute amendment is sought with the consequences indicated, the onus will be a heavy one on the amending party to show the strength of the new case and why justice both to him, his opponent and other litigants requires him to be able to pursue it.”
“Drawing these authorities together, the relevant principles can be stated simply as follows: a) whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted; b) 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; c) a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept; d) lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done; e) 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; f) it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay; g) a much stricter view is taken nowadays of non-compliance with the Civil Procedure Rules and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so.”