BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Commercial Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Trafigura PTE Ltd & Anor v Gupta & Ors [2025] EWHC 1609 (Comm) (25 June 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Comm/2025/1609.html
Cite as: [2025] EWHC 1609 (Comm)

[New search] [Printable PDF version] [Help]

Neutral Citation Number: [2025] EWHC 1609 (Comm)
Case No: CL-2023-000054

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT

Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
25 June 2025

B e f o r e :

STEPHEN HOFMEYR KC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT

____________________

Between:
(1) TRAFIGURA PTE. LTD.
(2) TRAFIGURA INDIA PVT. LTD.
Claimant
- and -

(1) PRATEEK GUPTA
(2) UIL (SINGAPORE) PTE. LTD.
(3) UIL MALAYSIA LTD.
(4) TMT METALS A.G., ZUG
(5) TMT METALS (UK) LTD.
(6) SPRING METAL LTD.
(7) MINE CRAFT LTD.
(8) NEW ALLOYS TRADING PTE. LTD.
Defendant

____________________

David Peters KC and Edward Ho (instructed by Stephenson Harwood)
Yash Kulkarni KC and Craig Williams (instructed by Preston Turnbull LLP)

Hearing date: 19 June 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This Judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to the National Archives. The date and time for hand-down is deemed to be 10:30 am on Wednesday 25 June 2025

    STEPHEN HOFMEYR KC

    Introduction

  1. In these proceedings the claimants ("Trafigura") claim to have been the victim of a fraud in which the defendants dishonestly misrepresented that they were selling high-quality nickel with the intention of inducing Trafigura to enter into a series of trades when, in fact, they intended to and did supply much less valuable metals. The PT Defendants deny any liability on the ground, inter alia, that the arrangement ("the Arrangement") was devised and proposed by Trafigura.
  2. The proceedings were commenced in February 2023. Trafigura sought and obtained a World-wide freezing order against the Defendants on 8 February 2023, and an application to discharge the order was dismissed. Particulars of Claim were served in May 2023. The First to Fifth Defendants ("the PT Defendants"), the Sixth Defendant, the Seventh Defendant and the Eighth Defendant each served a Defence in July 2023. Trafigura served Replies in October 2023.
  3. The Case Management Conference took place in March 2024 at which various orders were made in relation to disclosure, including a deadline of 30 September 2024 (subsequently extended on four occasions to 31 October 2024, to 28 February 2025, to 21 March 2025 and 16 April 2025) for the parties to give Extended Disclosure/search-based Extended Disclosure. A conditional stay was also imposed for the months of October and November 2024 (subsequently amended to the month of November 2024) during which the parties were to consider negotiated dispute resolution. Orders were also made (and subsequently revised) for the exchange of signed witness statements of fact, supplemental signed witness statements of fact and completed progress monitoring information sheets. So far as I can tell from the CMC bundle, the deadlines for these exchanges are currently 25 June 2025, 23 July 2025 and 20 August 2025, respectively. The Progress Monitoring Date has been extended to 22 August 2025.
  4. A trial date of 10 November 2025 was fixed at a listing appointment on 3 April 2024. The trial is fixed for 6 weeks (including one week of pre-reading). The trial is due to commence in less than 5 months.
  5. The application

  6. In the midst of all of these interlocutory events, on 31 January 2025 the PT Defendants applied for permission to amend their Defence in the terms set out in a draft Amended Defence ("DAD") exhibited to the Fourth Witness Statement of Edward Mills-Webb. The application was listed for hearing on Thursday 19 June 2025. It is unfortunate that it could not have been listed at an earlier date.
  7. On the usual terms as to costs, the Claimants consented to the amendments at paragraphs 1, 2, 10.2, 19, 35.1, 36, 43.1.2, 49.3, 50.1, 52.3, 57.1, 59.4, 68.2, 68.3.2, 68.3.3, 68.5.1, 72.1, 74.1, 78.4.3 and 79.4 of the DAD.
  8. The hearing

  9. At the hearing the parties came to agree that the amendments at paragraphs 11, 11B, 20, 20A, 20B, 20C, 25.1, 25.2, 26, 26.1, 26.2, 26A, 26B, 27, 28, 29, 29.1, 29.2, 29.3, 29A, 31A, 31A.1, 31A.2, 32A, 32.B, 32.C, 55.2 and 75A of the DAD should be permitted on terms that the PT Defendants would not seek to re-open the disclosure process in reliance on these amendments.
  10. At the conclusion of the hearing there remained in dispute the draft amendments at paragraphs 3 (including all its sub-paragraphs), 11A and 29B of the DAD ("the Disputed Amendments"). The Disputed Amendments were a subset of the draft amendments identified loosely as "the Knowledge Amendments". The Knowledge Amendments were given this short-hand description because the amendments set out what the PT Defendants allege was the extent of the knowledge (within Trafigura's senior management and throughout various of Trafigura's departments) of "the Arrangement" which was made between them and the Claimants and upon which the defence is based.
  11. At the conclusion of the hearing I refused permission to make the Disputed Amendments, with reasons to follow. My reasons are set out, shortly, below.
  12. The law

  13. There was no discernible difference in principle between the approaches which the parties contended the court should adopt when considering a proposed amendment to a statement of case. The relevant principles were recently summarised by Bryan J in Invest Bank PSC v El-Husseini & Ors [2024] EWHC 1235 (Comm) at paragraph 24 and by Henshaw J in Finastra International Ltd v CRDB Bank PLC [2025] EWHC 509 (Comm) at paragraph 45.
  14. In summary (adopting the words of Henshaw J):
  15. (1) Under CPR 17.1(2)(b), the court has discretion to allow or refuse the proposed amendments. In exercising its discretion, the overriding objective is of the greatest importance. Under CPR 1.1(2), dealing with cases justly and at proportionate cost means ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; saving expense; ensuring the case is dealt with expeditiously and fairly; and allocating to each case no more than a fair share of the court's limited resources.

    (2) The court must strike a balance between the interests of the applicant and those of the other party and other court users, having regard to the injustice if the amendments are refused and the injustice if the amendments are allowed.

    (3) It is relevant to consider to what extent the case sought to be advanced by the amendment is one the parties have already been considering. However, the mere fact that the 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.

    (4) Consideration of whether the amendments should be allowed takes place as at the date of the hearing. There is no reason for a responding party to take steps to meet the case advanced in a contested amended pleading for which permission has not been granted.

    (5) The lateness of the amendment is a relevant factor. Lateness is a relative concept. An amendment is late if it could have been advanced earlier, or involves a duplication of cost and effort, or if it requires the opposing party to revisit any of the significant steps in the litigation (e.g. disclosure, witness statements and expert reports). There will need to be a fair appreciation of the consequences in terms of the work wasted and consequential work to be done if the amendment were to be allowed.

    (6) An application to make substantive amendments in the lead up to trial is a late amendment, and if it threatens the trial date, it is a very late amendment. There is a heavy burden on the applicant to justify a very late amendment. Parties have a legitimate expectation that trial dates will be met and not adjourned without a good reason. The applicant must explain the lateness of the amendment and have a good reason or explanation for any delay. The prejudice to a respondent by virtue of the disruption and additional pressure on parties and lawyers and experts in the run up to trial is a relevant factor. If the amendment would necessitate the adjournment of the trial that may be an overwhelming reason to refuse permission. By contrast, where the prejudice to an applicant in not being able to advance the amended case is attributable to their own conduct, that is a much less important factor.

    (7) In considering the impact on the trial, the court is not concerned just with the ability to complete all necessary consequential steps but also with the impact on the overall ability to prepare properly for trial. Additional pressure on a party preparing in the intense run up period to trial is a substantial reason not to allow amendments.

    (8) 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 the applicant, the respondent and other court users require the applicant 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.

    (9) 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

  16. In the exercise of its discretion, the court is required to carry out a careful exercise balancing all of the relevant factors, some of which are competing and working in opposite directions. In the final section, below, this balancing exercise is performed.
  17. Analysis and conclusions

  18. Whether the Disputed Amendments should be allowed is to be considered at the date of the hearing. In this case, the delay between the issuance of the Application and the date of the hearing, whilst unfortunate, is of limited relevance only.
  19. In performing the balancing exercise, I have had regard to the following factors as being of particular relevance:
  20. (1) The case sought to be advanced in the Disputed Amendments is one the parties have already been considering, at least to a degree.

    (2) The PT Defendants will be prejudiced if permission to introduce the Disputed Amendments is refused. In my view, the Disputed Amendments do disclose (or add strength to) a proper ground for defending Trafigura's claim.

    (3) The Disputed Amendments could have been advanced earlier and the only explanation for the delay, namely, lack of funding, is either legally irrelevant or of little substance on the facts. The court has previously found, and I agree, that there are sources of funding available to the PT Defendants. The prejudice to the PT Defendants in not being able to advance the Disputed Amendments is therefore attributable to their own conduct and consequently a factor to be treated as less important in the balancing exercise.

    (4) It is common ground that the Disputed Amendments are "late" amendments, and Trafigura contends that they are "very late" amendments. As a consequence, there is a heavy burden on the PT Defendants to show why justice (to all parties) requires that they should be permitted to pursue the amended case.

    (5) If permission is given to advance the Disputed Amendments, it will require Trafigura to revisit the disclosure exercise. This has been a costly and time-consuming exercise. The PT Defendants candidly accept that the disclosure exercise will need to be revisited. The number of Trafigura custodians will need to be increased by at least four – the PT Defendants had initially contended for the identification of one or more custodians from 13 Trafigura departments – and that the disclosure process will need to be re-run in relation to each of these 4 additional custodians for the period from 1 January 2019 to 10 February 2023. This would involve a not insignificant and time-consuming exercise being conducted alongside the other tasks currently being undertaken by the parties. Trafigura contend that it would endanger the trial fixture. In my view, it would likely cause very significant prejudice to Trafigura and possibly endanger the trial fixture.

    (6) If permission to advance the Disputed Amendments is given, it is likely to require Trafigura to revisit witness statements. Some work which has already been completed would likely be wasted and the consequential work would likely be significant.

    (7) These necessary consequential steps in relation to disclosure and witness statements will heap additional pressure on Trafigura's legal team in what is already an intense period of preparation in a relatively short run up to the trial.

    (8) The generality and vagueness of the Disputed Amendments, particularly in the context of an allegation of fraud, are further factors to which I have had regard. The Disputed Amendments for the most part fail to identify the additional individuals now said to be involved in the Arrangement or the extent of their involvement. If the Disputed Amendments were permitted Trafigura would be left in the unenviable position of having to obtain evidence from a very large pool of potential witnesses without knowing whether they had tapped the correct pool.

  21. In my view, weighing in the balance all of the factors I have identified above, the PT Defendants have not overcome the heavy burden which lies on them to show why justice requires that they should be permitted to pursue the amended case. The prejudice to the PT Defendants which is likely to result from not being permitted to pursue the Disputed Amendments – factors (1) and (2) above, read with factor (3) – is likely to be outweighed by the prejudice to Trafigura which would result if the amendments were allowed – factors (5), (6), (7) and (8) – and the possible prejudice to other court users.
  22. For these reasons permission to make the Disputed Amendments is refused.

  23.  

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010