[1] In CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs [2023] EWCA Civ 480, Males LJ said, under the subheading 'wilful misconduct' (a reference to the allegation sought to be added to the claim - for which permission to amend was sought), at paragraph 47:

'It was common ground before the judge that this was a late amendment, albeit not a “very late” amendment which put a trial date at risk. The applicable principles, which were not in dispute, were conveniently summarised by Mrs Justice Carr in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm) at [36] to [38], a summary which has been adopted in other cases. It was not suggested that the judge's summary of the applicable principles in this case, which I have set out at [36] above, was mistaken.'

Pausing there, Males LJ said, at paragraph 36 of CNM:

'After hearing argument on the issue of wilful misconduct, the judge gave a further extempore judgment refusing permission to amend. She recorded that the principles applicable to the grant of such permission were not in dispute, said that she had “a general discretion whether to permit an amendment, my essential task being to balance the prejudice to one party if the amendments are allowed against the prejudice to the other if they are disallowed”, and identified the principal relevant factors as being the lateness of the application, any reasons for delay, the adequacy of the pleading and whether it had a real prospect of success, of which the latter two were the most important. As to these, the judge held that the proposed amendment just about set out with sufficient clarity the nature of the case which CNM sought to make, but that the claim was internally incoherent and inconsistent in some respects, such that the claim was “decidedly weak” and “lacks conviction”. She weighed this against other factors, including that in view of the procedural history (which included a series of failures by CNM to comply with orders of the court even before the hearing of the preliminary issue) the Receivers could fairly claim to have been “mucked about”, that the case of wilful misconduct was “a very serious allegation to make against professional people”, and that it had been “raised at the last minute in a claim which has now been ongoing for over four years”, even though the trial was still some way off. Overall, the judge's conclusion was that:

“36. Taking a step back and balancing the factors all in the scales, I cannot regard this as anything other than a claim which is speculative and weak, even if I charitably assume that it is just about pleadable. In my judgment, therefore, it would not be right or in accordance with the overriding objective to allow it to continue for another two or three years occupying court time, which has many other calls on it.”

Continuing with Males LJ under his subheading 'Wilful Misconduct', from paragraphs 48 to 50:

'One necessary condition for any amendment is that the claim as amended should have a real prospect of success, which is the same test as applies on a summary judgment application. There is no point in giving permission for an amendment which is fanciful and which has no real prospect of success. In this regard the principal focus must be on the pleading in question and no attempt should be made to resolve disputed matters of evidence (conducting a mini-trial): Okpabi at [103] to [107]. It is, however, appropriate to consider whether a proposed pleading is coherent and contains properly particularised elements of the cause of action relied upon (Elite Property Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 204 at [42]).

Even if an amendment clears that initial hurdle and has a real prospect of success, whether to allow the amendment remains a matter of discretion. I would accept, however, that in general (and save perhaps in the case of “very late” amendments) it is not appropriate to consider the strength or weakness of the claim as a factor relevant to that exercise of discretion, for the reasons given by the Master of the Rolls and Lord Justice Newey at [69] to [77] of their judgment.

It is therefore necessary to consider whether the proposed plea of wilful misconduct has a real prospect of success....'

Then, after finding some allegations had no reasonable prospect of success (paragraph 50), Males LJ said of the remaining wilful misconduct proposed claims 'I do not think that it is possible by reference to the pleading itself to say that these claims have no real prospect of success.' (paragraph 58). He said he was prepared to allow the appeal as to the refusal to grant permission to appeal on these claims (paragraph 59). Conscious that Vos MR/Newey LJ disagreed with him, Males LJ said little as to the appeal against the refusal to grant permission to amend, to add gross negligence allegations (paragraph 60-62).

[2] In CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs [2023] EWCA Civ 480, Vos MR and Newey LJ said, at paragraphs 66 to 67:

'Males LJ has already referred to three cases: Okpabi v. Royal Dutch Shell Plc [2021] UKSC 3, [2021] 1 WLR 1294 (“Okpabi”), Quah Su-Ling v. Goldman Sachs International [2015] EWHC 759 (Comm) (“Quah Su-Ling”), and Elite Property Holdings Ltd v. Barclays Bank Plc [2019] EWCA Civ 204 (“Elite”).

As can be seen from Quah Su-Ling at [38], the courts have distinguished between “late” and “very late” amendments, a “very late” amendment being one which would cause the trial date to be lost. As Lloyd LJ observed in Swain-Mason v. Mills & Reeve LLP [2011] EWCA Civ 14, [2011] 1 WLR 2735, at [72], “the court is and should be less ready to allow a very late amendment than it used to be in former times, and … 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”. Quah Su-Ling itself involved an application to make “very late” amendments and, in that context, Carr J thought it appropriate to assess the strength of the new case: see [57].'

As to the facts in CNM, the case was not a 'very late' case, but was a 'late' case. This was made clear in CNM, where Vos MR and Newey LJ said, at paragraph 68:

'No one suggests that permission to amend is sought “very late” in the present case.'

At paragraph 77, Vos MR/Newey LJ in CNM said:

'The general rule is that, except in the case of “very late” amendments, unless it can be seen that a claim has no real prospect of succeeding, its merits should be determined at a full trial.

[3] In The Wine Enterprise Investment Scheme Ltd v Crowe UK LLP [2026] EWHC 692 (Ch), Richard Spearman KC (sitting as a Deputy Judge of the Chancery Division) dealt with the law and then applied it, to the facts in the case before him, from paragraphs 286 to 373. That quotation is too long to set out here. Provided here is an extract. Under the hearing 'The Company's Application' and subheading 'Applicable law', the Judge said, at paragraphs 286 to 295:

'I gratefully adopt the following summary contained in [3]-[10] of the annex to the judgment of Henshaw J in Toucan Energy Holdings Ltd v Wirsol Energy Ltd [2021] EWHC 895 (Comm).

The Court has a discretion to permit amendments to a statement of case under CPR rules 17.1(2)(b) and 17.3. The Court’s discretion should be exercised in accordance with the overriding objective under CPR r. 1.1(1) to deal with cases “justly and at proportionate cost”. CPR rule 1.1(2) indicates that:

“(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable-

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate-

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.”

Further, as was held in Scott v Singh [2020] EWHC 1714 (Comm) (HHJ Eyre QC):

() the proposed amendment must be properly formulated (§18);

() if the proposed amendment raises a new claim or defence, it must have a real prospect of success (§19); and

() if the proposed amendment is “very late” in that it would require the vacation of an existing trial date, there is a heavy burden on the applicant to show that justice requires that they be permitted to advance their amended case (§20).

In Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm), where the claimant applied two weeks before trial to amend the particulars of claim, it was conceded that the unamended claim was unsustainable and that the proposed amendments “wholly change the nature of the case” (§32). The lateness of the application led to the trial date being vacated. Carr J summarised the relevant principles as follows:

“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.” (§38)

290. In CIP Properties (AIPT) v Galliford Try Infrastructure Limited [2015] EWHC 1345 (TCC) permission was sought for extensive amendments to the claimant’s case that would necessitate the adjournment of a trial date that Coulson J concluded it was imperative to maintain (see §§11 and 13). Coulson J gave the following further summary of the relevant principles:

“In summary, therefore, I consider that the right approach to amendments is as follows:

(a) The lateness by which an amendment is produced is a relative concept (Hague Plant). 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) which have been completed by the time of the amendment.

(b) An amendment can be regarded as ‘very late’ if permission to amend threatens the trial date (Swain-Mason), 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 (Brown).

(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 (Brown; Wani). In essence, there must be a good reason for the delay (Brown).

(d) The particularity and/or clarity of the proposed amendment then has to be considered, because different considerations may well apply to amendments which are not tightly-drawn or focused (Swain Mason; Hague Plant; Wani).

(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’ (Worldwide), to the disruption of and additional pressure on their lawyers in the run-up to trial (Bourke), and the duplication of cost and effort (Hague Plant) at the other. If allowing the amendments would necessitate the adjournment of the trial, that may be an overwhelming reason to refuse the amendments (Swain Mason).

(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 (Swain-Mason). 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 (Archlane). (§19)

Coulson J also indicated that the starting point for amendments under CPR 17 is no longer to the effect that amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon, provided that any prejudice to the other party caused by the amendments can be compensated for in costs (§15).

As to prospects of success, if there are no real prospects then that is determinative. Apparent lack of prospects, even when not so low as to meet the CPR Part 24 threshold, is also a factor against the granting of permission. The court is not expected to conduct a mini-trial, but that does not mean that the court must take at face value and without analysis anything that a party says in its statements before the court. It may, for example, be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents (see ADVA Optical Networking Ltd v Optron Holding Ltd [2018] EWHC 852 (TCC) §§ 30-35 (Joanna Smith QC)).

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.

On the other hand, the mere fact that an issue has received some attention in the preparation of the case and the experts’ reports is not necessarily sufficient to make permission to amend appropriate. In Willmott Dixon Construction Ltd v Robert West Consulting Ltd [2016] EWHC 3291, Coulson J refused to grant permission for amendments by a defendant to its technical case. He did not consider the proposed new case to be arguable, but added obiter:

“25. Now let us assume that I am wrong on both points above, so that the issue of law is at least arguable as a matter of contributory negligence. Even if that were the case, I would still refuse to allow the amendments to Response 14. There are two reasons for that.

26. The first is because the amendments were made late, only a few weeks before trial (and with a holiday period intervening). The lateness is neither explained nor the subject of any explanation.

27. The second is because of all the uncertainties that the amendments introduce, and the inevitable adjournment of the trial if they were allowed. On the basis of the case as it presently exists, the claimant has devoted little time, and little of its expert’s report, to a consideration of the allegations of contributory negligence arising out of the underpinning works. That is because the claim has hitherto been put on the narrow basis indicated in D&F Estates (i.e. actual knowledge and condoning of the wrong) and the claimant has decided - whether rightly or wrongly - that it has a good case in defence of that very specific allegation.

28. I accept Mr Sullivan’s proposition that, if these amendments were allowed, they would require the claimant to reconsider this whole aspect of the case and, more than likely, to focus upon matters which it had previously thought were unnecessary. It would give the case on workmanship and inspection a completely different emphasis. Out of caution, the claimant would have to put itself into the shoes of Toureen and look at all the factual and expert issues (not just the narrow D&F Estates point), to gather evidence in response and weigh its potential liability for contributory negligence on this new basis.

29. It would not stop there. No matter what my views are as to the inherent dangerousness exception as a matter of law, and the difficulty of arguing the point in this case (paragraph 14 above), the claimant would need carefully to consider that aspect of the amendments, for the first time, and in very short order. It may be a matter on which expert, as well as factual, evidence is thought to be required. I acknowledge at once that Ms McCafferty properly indicated that this would not be how the case would be presented at trial, but the discussion of the law set out above demonstrates that considerations of inherent danger may easily become part of the defendant's case, even by default.

30. Thus, if I allowed these amendments, they would not only comprise an unwelcome and unnecessary distraction to the claimant as it prepares for a trial that is a month away, but it would probably also give rise to the need for further evidence, perhaps including expert evidence. That would fatally jeopardise the trial date. On an application of the relevant principles summarised by Carr J in Su-Ling, I am bound to conclude that it would not be appropriate to allow the amendments in those circumstances.”

To this synopsis of Henshaw J, I would add that in Wani LLP v Royal Bank of Scotland plc [2015] EWHC 1181 (Ch), Henderson J (as he then was) said at [50]:

“… Unless and until an application to amend was made, so as to bring the claimant’s pleaded case into alignment with the evidence of its witnesses, the Bank was entitled to proceed on the footing that the issues remained those defined by the statements of case in their existing form. It puts matters the wrong way round, in my judgment, for the claimant to say that the Bank was now on notice of the “real” case that the claimant wished to advance. It is the function of the pleadings to define the issues, and evidence which does not go to the pleaded issues is, strictly speaking, irrelevant and liable to be struck out or disregarded accordingly…”

To similar effect is ... UK Learning Academy v Secretary of State for Education [2020] EWCA Civ 370, Richards LJ at [47]:

“I endorse the view expressed by the judge to the parties at the trial and repeated in his judgment at [11] that the statements of case ought, at the very least, to identify the issues to be determined. In that way, the parties know the issues to which they should direct their evidence and their challenges to the evidence of the other party or parties and the issues to which they should direct their submissions on the law and the evidence. Equally importantly, it enables the judge to keep the trial within manageable bounds, so that public resources as well as the parties’ own resources are not wasted, and so that the judge knows the issues on which the proceedings, and the judgment, must concentrate. If, as he said, there was “a prevailing view that parties should not be held to their pleaded cases”, it is wrong. That is not to say that technical points may be used to prevent the just disposal of a case or that a trial judge may not permit a departure from a pleaded case where it is just to do so (although in such a case it is good practice to amend the pleading, even at trial), but the statements of case play a critical role in civil litigation which should not be diminished.”'