KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
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(1) TRAFIGURA PTE. LTD. (2) TRAFIGURA INDIA PVT. LTD. |
Claimant |
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(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 |
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Yash Kulkarni KC and Craig Williams (instructed by Preston Turnbull LLP)
Hearing date: 19 June 2025
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Crown Copyright ©
STEPHEN HOFMEYR KC
Introduction
The application
The hearing
The law
(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
Analysis and conclusions
(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.