England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Rolls Building
		6th February 2017

CHIEF MASTER MARSH:

1. This judgment arises from a hearing which took place on 31^st January 2017 of the second defendant's application to re-amend the particulars of her additional claim and for consequential directions. Mr. Jonathan Cohen QC appeared for the second defendant, who is also the Third Party, and Miss Monica Carss-Frisk QC and Mr. Edward Brown appeared for the claimant and the defendants to the additional claim, the Fourth and Fifth Parties.
2. In this judgment, for convenience, I will refer to the claimant as "Signia", the second defendant and Third Party as "NDS", because that is how she has been referred to in the statements of case, and to the Fifth Party as "Mr. Caudwell." I am going to summarise the issues in the claim as it stands at present by referring, largely unadapted, to Mr. Cohen QC's summary in his skeleton argument.
3. There are three principal features of the claim. First, NDS was an employee, director and, indirectly, through a trust, a 49 per cent shareholder in Signia. Mr. Caudwell was, indirectly, the other 51 per cent shareholder in Signia. Signia and Mr. Caudwell claim that NDS was lawfully terminated as an employee and director because she had dishonestly claimed expenses to which she was not entitled. She was therefore, as the claim is put against her, a "bad leaver" as defined in Signia's Articles and her shareholding in Signia was properly the subject, it is said, of a compulsory transfer, pursuant to the Articles, for a minimal consideration.
4. The second element is that NDS says her expense claims were not dishonest and that she accepted a repudiatory breach of contract on the part of Signia so as to terminate her directorship and employment. She claims the fair value of her transferred shares by way of a claim in these proceedings.
5. The third element is that NDS claims, alternatively, that Signia and Mr. Caudwell, acting together, unlawfully excluded her. She advances that claim in two ways. First, she claims the termination was a breach either of express terms of good faith and fairness in the Shareholders' Agreement or that there was an implied term in the service agreement that her service would not be terminated if the object of doing so was to deprive her of a valuable benefit because, in each case, the true reason for termination was that Mr. Caudwell was seeking to procure her shares from her at a low value. Mr. Cohen QC has characterised that part of the claim as the "deprivation claim". The second part of her additional claim is that she says she was a victim of a conspiracy to injure between Signia and Mr. Caudwell because her treatment by them was the result of her raising queries about a transaction in which Mr. Caudwell had engaged with Signia concerning the payment of certain fees which she believed was unlawful.
6. It is necessary to highlight, in addition to those features of the claim, four additional points: (i) NDS's additional claim is not, as has been suggested by Signia, parasitical on the primary claims between Signia and her in the main action; it stands alone and its success is not contingent upon the success or failure by her in the main claim; (ii) the two elements of the additional claim are both capable of succeeding, regardless of the outcome of Signia's assertion about expenses; (iii) both elements of the additional claim require NDS to show that Signia and Mr. Caudwell's intention was to harm her. In the case of what Mr. Cohen QC has characterised as the deprivation claim, she has to show that Signia and Mr. Caudwell's actions were designed to deprive her of her shares on a bad leaver basis. In the conspiracy to injure claim she has to establish that Signia and Mr. Caudwell acted so as to punish her for querying the lawfulness of financial transactions with which Mr. Caudwell was involved. She has to show, as a minimum, the predominant motive was to do her harm; (iv) the value of the additional claim is hotly contested. However, NDS's case is that her losses are in the region of £20 million.
7. Before dealing with the amendment, and the grounds for opposing the grant of permission, it is necessary to summarise the current procedural position because part of Signia's opposition to the amendment is founded on this being a very late amendment and, in any event, the application has to be seen in its proper context. The trial of this claim is in a window commencing 16^th October 2017, with a time estimate of 12 days, including one day of judicial pre-reading and one non-sitting day. So, from today, there are more than eight months until the trial commences. The parties have completed disclosure, subject to some relatively minor specific disclosure issues. They are due to exchange witness statements about now. Expert evidence on share valuation has reached an advanced stage. NDS, as directed, has served her report first and Signia has served its report in response. The experts were due to meet by 20^th January 2017 and to produce a joint statement.
8. It can be seen from the summary that the application for permission to amend is not made in the context of a timetable which has gone awry, or a matter of weeks before the trial is due to commence. Furthermore, the application itself was issued on 13^th September 2016, some 13 months before the opening of the trial window.
9. Notwithstanding these periods of time (a little more than 8 months or 13 months as the case may be), the application is said to be very late and thus falls within the recent jurisprudence relating to such applications. There are two reasons for this. First, Signia relies on dicta from Henderson J in Davidson & Anor. v Seelig & Ors. [2016] EWHC 549 (Ch), where he suggested that whether an application for permission to amend is to be regarded late falls to be considered at the time the application is heard, not the date of issue of the application. Secondly, Signia also says the amendment, if granted, will put the trial date in jeopardy, or at least there will be a significant risk of losing the trial date. That, it is said, has the effect of making the application very late, regardless of what might be regarded as a more intuitive approach, of measuring lateness by assessing the proximity to trial. It will be necessary to consider the authorities briefly later in this judgment.
10. I need only add two further matters at this stage:

(i) that the unacceptably long period of time between issue of the application and the hearing last week was largely a function of the lack of space in counsel's diaries, not a lack of time in the court's diary;

(ii) I need to explain briefly NDS's reasons for making the application at this stage. Put shortly, it is said that it was only after the press publicity arising from the CMC in July 2016 that new information emerged. Ms. Tracy Gehlan approached NDS's legal team. Ms. Gehlan was the Chief Executive Officer of a company called Pure Health and Fitness, a Polish company. I am going to refer to that company by its trading name, "Jatomi". Jatomi operates German fitness centres in a number of countries. Ms. Gehlan has made a statement for the purposes of the application – I say in passing it does not purport to be her trial statement – which sets out her experience at Jatomi, leading to her dismissal as CEO on 24^th February 2016. She says she came forward because, based on reports in the press, her experience at Jatomi was similar to that of NDS. She is willing to be a witness at the trial of this claim, along with a Ms. Suzette Burger, who was a colleague of hers at Jatomi. NDS seeks to introduce elements of Ms. Gehlan's evidence on a similar fact basis. I will come to her story shortly. I need only add that Ms. Gehlan is pursuing a claim against Jatomi in Poland, under Polish labour laws, and one of the issues I will have to consider is whether it is right for a court in England to try factual issues that will be determined by a court in Poland.

The Amendment

11. The amendment relates to para.92A of NDS's additional claim and seeks to add a new para.92AA. The amendments themselves run to just two and a half pages. As a matter of convenience, and to avoid the need to read the whole of the new paragraphs into this judgment, they are to be attached as an appendix if this judgment is transcribed. It is necessary, however, to make some observations about the claim, both in its current form and as it is proposed to be. Currently, the claim includes a conspiracy to injure claim which relies on three matters from which it is said Mr. Caudwell and Signia acted with the predominant motive to injure. These elements are contained, at the present, in para.92A of the claim.
12. The principal allegation concerns the elements already pleaded in the defence and they are, in summary: (i) that Signia invoiced Mr. Caudwell for a total of £1.7 million for what were termed "introducer's fees"; (ii) NDS raised concerns with Mr. Caudwell about whether these invoices were genuine; (iii) shortly thereafter, Signia, at the instigation of Mr. Caudwell and/or a Mr. Canfield instigated an investigation into NDS's expense claims; she says the allegations were false; (iv) she was subsequently dismissed and treated as a bad leaver, leading to her shares being transferred. Paragraph 92A(b) relies on an assertion that Mr. Caudwell must have known the assertion about NDS's expenses being unlawful was not true because most of the expenses related to NDS attending meetings with him. At 92A(c), it is asserted that Mr. Caudwell has taken a prominent position on the evils of tax avoidance and would therefore be affronted by the challenge from NDS.
13. New sub-para.(d) to para.92A seeks to introduce evidence of Mr. Caudwell acting in what is said to be a similar way towards Ms. Gehlan in his capacity as a shareholder of Jatomi. Sub-paragraphs (d)(i), (ii) and (iii) rely on three factual assertions in connection with Jatomi:

(i) Ms. Gehlan raised concerns in the autumn of 2015 with Mr. Caudwell about a collection of substantial invoices presented by Mr. Caudwell to the company for payment;

(ii) subsequently, in connection with payment of bonuses, Mr. Caudwell is alleged to have said words to the effect that he always sets the bonuses high but then finds a way to fire the employee before he has to pay it;

(iii) in January 2016, Mr. Caudwell instigated an investigation into Ms. Gehlan's expenses and those of her colleague, Ms. Burger. Nothing amiss was found. She was, however, dismissed on what are said to be bogus grounds.

14. Paragraph 92A(4) seeks to draw conclusions and expresses Ms. Gehlan and Ms. Burger's belief about Mr. Caudwell's motivation in commencing the expenses investigation, namely that, having incurred his displeasure, Mr. Caudwell responded by instigating the investigation and/or because he wanted to find a pretext for avoiding payment of bonuses. At para.92A(a), an alternative claim is pursued on the basis of an unlawful means conspiracy.
15. The proper approach to this amendment is a two-stage one. That approach is derived from the decision of the House of Lords in O'Brien v Chief Constable of South Wales Police [2005] 2 AC, 534. I will come to that two-stage test from O'Brien in a moment. In summary, the parties' respective positions are these: NDS says, first, that this is a case where motives matter, and that can be seen from the summary I have already provided. Furthermore, it is said that the case that NDS now wishes to put forward amply meets the initial threshold test for relevance. Then it is said that, where wider case management considerations are to be taken into account, there is no good reason to refuse the amendment and, in particular, the amendment would not threaten the trial fixture. It is also submitted, first, that the court can defer case management considerations to the trial judge and, secondly, that there are no ancillary or improper reasons for the amendment; NDS is merely seeking to bolster her conspiracy to injure claim and to add an unlawful means conspiracy claim, with its lower evidential threshold.
16. Signia's position is that it disputes the relevance of the evidence, but if it is held by the court to be relevant the application is opposed on a number of grounds and, in particular, the following:

(i) the evidential value of the additional claim is far outweighed by disruption to the progress of the claim and it will unduly lengthen the trial and add disproportionately to the cost;

(ii) the amendment is very late, for the reasons I have given;

(iii) the court in London will have to, in effect, try and determine the same issues that are to be tried in a court in Poland and, for reasons of comity, that should not be permitted.

17. Two additional bases of opposition were initially mooted but were not pursued. It was initially asserted that there was a collateral purpose behind the amendment, which was to court publicity. In addition, it was asserted that the claim would fall to be stayed under Art. 30 of the recast version of the Brussels Regulation. However, in the event, both these additional points were not pursued and I think rightly so.
18. I turn then to O'Brien as the correct starting point. O'Brien itself was a case brought against the Chief Constable where damages were claimed for misfeasance in public office and malicious prosecution. There are two paragraphs in particular in the speech of Lord Bingham to which it is helpful to make reference. The first, para.4, deals with the initial evidential threshold and the second paragraph, para.6, deals with the wider considerations the court must take into account. At para.4, Lord Bingham said this:

"… if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those earlier events as perhaps throwing light on and helping to explain the event which is the subject of the current enquiry. To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it."

19. It seems to me it is of note to draw attention to the language used by Lord Bingham in that paragraph. The language is, to no small, degree conditional and includes words such as 'apparently' or 'perhaps'. He suggests that the evidence may be "potentially probative" and where an objective observer "might" attach importance to it. It can be seen from that choice of language that the evidential threshold is not an especially high one. That can be seen from the approach adopted by Sir David Eady in Hegazy & Ors. v The Commissioner of Police of the Metropolis & Ors. [2014] EWHC 235 (QB), at para.7, where he puts, for the purposes of that case, the test in this way:

"It is rather a question of whether the allegations, if admitted or proved at trial, would reasonably be thought to render the primary allegations more likely to be true."

20. Similarly, in Mitchell v News Group Newspapers Ltd. [2014] EWHC 3590 (QB), Warby J, at para.66, directed himself in the following way:

"I asked myself whether the evidence, assuming it provisionally to be true, might lead to the conclusion that events on the evening of 19 September 2012 were more likely to have unfolded in the way alleged by PC Rowland and NGN, rather than as alleged by Mr. Mitchell."

21. The second element of the speech of Lord Bingham, that is his remarks in para.6, set out a number of considerations for the court to take into account when deciding whether to admit similar fact evidence. It is, I think, unnecessary to read that paragraph in full. There are three elements to highlight and, indeed, these relied upon in the submissions put forward on behalf of Signia. The three elements are; (i) the additional evidence, by way of similar fact, would distort the trial (although I note) Lord Bingham indicates that may primarily be of concern in a jury trial); (ii) the court has to weigh the probative value of the additional evidence against the potential for prejudice; and (iii) the court has to take into account the burden on the resisting party which might flow from admitting the evidence, such as cost and/or lengthening the trial.
22. Plainly, the second stage, which is referred to as the "case management stage", is case-specific. I note that Lord Bingham did not make reference to the overriding objective in his speech but, plainly, elements of the overriding objective are engaged here and the overriding objective is nothing more than a different lens through which to consider the sort of matters summarised by Lord Bingham in his speech.
23. In the course of legal argument, a number of other cases were cited and, although it is of interest to see how the principles described by Lord Bingham in O'Brien have been applied, to my mind it is important not to be distracted by findings in such cases because the decisions were made on their own facts. It is more important to concentrate on the specific facts of this case. Both sides, however, sought to gain assistance from the decision of the Court of Appeal in JP Morgan Chase Bank v Springwell Navigation Company & Ors. [2005] EWCA Civ 1602. I make just two points. First, I agree with Mr. Cohen QC that the decision suggests the initial evidential threshold is relatively low. Secondly, as Miss Carss-Frisk QC points out, on the facts of that case, the Court of Appeal refused to admit the similar fact evidence because it threatened to overburden the trial. And, interestingly, the court considered whether limiting the evidence sought to be called might resolve its case management concerns. Brooke LJ, in giving the judgment of the court, regarded it as unfair for Springwell, by limiting its own case, to seek to limit what Chase might relevantly adduce in answer.
24. I should also mention briefly the decision in Silversafe Ltd. & Anor. v Hood & Ors. [2006] EWHC 1849 (Ch), a decision of Peter Smith J. Although there are a number of observations by the judge in that case, to which I will make brief reference, it is right to note that the application to amend in that case was made at a very early stage of the case, before disclosure had taken place and before a trial date had been set. In Silversafe - and I think it is unnecessary to refer to the facts - at para.31, the judge remarked that the effect of the amendment might well be oppressive, but he did not accept that it was disproportionate. At para.33, he then went on to suggest that, after disclosure had taken place, the amended particulars of claim could be revisited and the claimant required to plead with more specificity. The judgment suggests that the court may make a decision at a relatively early stage to admit similar fact evidence, but then leave the case management that arise from having down so to a later point. The judge in that case suggested, at para.37, that the question of the evidence's probative value is really a matter for the trial judge and said:

"It is always dangerous to make a pre-emptive decision as to the admissibility or probative value of any evidence in advance of trial when the full picture is not presented."

25. I turn briefly to touch on the issue of late and very late amendment. Here, Signia relies on the recent summary of the principles provided by Carr J in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm). Para.(c) of her formulation is:

"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."

26. Here, I note that the application is opposed on the basis that there is a significant risk that the trial date will be put in jeopardy. It seems to me this is somewhere short of it being inevitable that the trial date will be vacated and the difference between the two is not mere pedantry. It is also right to note that the concerns expressed by the judge in Quah Su-Ling are highlighted by the fact that the application to amend was made just three weeks before the trial date. I think, in any event, it is wrong to focus solely on one aspect of the guidance summarised by the judge in that case. It is important, to my mind, to take into account the summary of the relevant principles in its entirety and to include, for example, consideration of what the judge says at para.38(d) about lateness not being an absolute, but a relative concept.
27. Furthermore, it is plainly right that, when considering whether a trial date is at risk, a court does not simply accept the evidence of the party opposing the application on that subject; that evidence needs to be evaluated and weighed carefully. Amongst other things, the court needs to be satisfied that the evidence is both considered and complete.
28. I will need to touch on whether lateness falls to be determined solely as of the date of the hearing, per Henderson J in Davidson. At a practical level, the court can do little other than look forward from the hearing date to the trial date and ask itself whether losing the trial is likely or inevitable. At the same time, the court must consider factors such as the availability of space in the court list and whether the applicant has taken all reasonable steps to ensure the application is brought on speedily. The availability or otherwise of counsel will rarely be a compelling reason for delay. For my part, I find it impossible to ignore altogether the date when the application was issued, given that the delay in it being heard is at least in part, here, due to the diary commitments of Signia's counsel team.
29. The evidence that was before me principally comprises a witness statement made by Mr. Peter Steen, who is a partner at Mishcon de Reya, who act for Signia and Mr. Caudwell. His evidence deals with two main matters; first, the Polish proceedings and, secondly, the impact of the amendment, if allowed, on these proceedings. I will deal with those in turn.
30. At para.23 of his witness statement, Mr. Steen expresses the view that if the amendment is admitted the court will be placed in what he describes as and "invidious position" and that it is objectionable for the court in England to be required to adjudicate on the elements of the proceedings in Poland. It is, I think, necessary to look behind what is said and to look to two principal documents. First, is the notice of dismissal in respect of Ms. Gehlan. It is, to my mind, notable that the grounds for her dismissal fall into three areas: (i) that she was acting beyond her powers in breach of the Shareholders' Agreement, (ii) that she provided inconsistent and deliberately misleading information to the company and (iii) that her performance was poor. Those allegations are some considerable distance from the matters raised by the proposed amendment.
31. The second document I to refer to is a letter from the lawyers in Poland acting for Signia. They explain that there are two claims brought by Ms. Gehlan in Poland. The first is a claim where she seeks one month's salary for unlawful dismissal. The second claim is a more substantial claim where she seeks payment of the bonus which has been withheld from her. Monika Smolarek, who is an attorney with the law firm, goes on to say:

"The determination in England of factual issues which are already subject to consideration by the Polish courts is likely to cause confusion and various formal and technical complications in the proceedings in the Polish courts. There are several potential difficulties. The potential complications arise from the conflict of Polish and English law and procedures, which is a complex area, and we therefore only give very brief consideration to that stage. The Polish courts respect the decisions of other courts under international law, but would consider the matters relating to employment disputes under Polish law should be determined by the Polish courts."

32. That letter, I observe, is an extremely generalised objection to the trial in England of related facts and, to my mind, does not provide a particularly cogent or powerful basis for the objection. I would also add that Ms. Smolarek also goes on in her letter to refer to the Recast Brussels Regulation, but that is not a point which is now relied upon.
33. Mr. Steen says in his evidence that the overlap between the claims in the Polish courts and this claim, if the amendment is allowed, is very considerable. He points to the delay and cost which will be occasioned by the need to involve Polish lawyers and the need to translate a substantial number of documents from Polish to English.
34. The second area of evidence provided by Mr. Steen concerns the impact on these proceedings. At para.24, he sets out a number of steps which he says will be needed if the amendment is allowed. First, the costs budgets will need to be revisited. Secondly, he says there would need to be a substantial investigation of the facts, with translation of the defence into Polish for proper consideration in Poland. He says that step could not realistically be accommodated before June 2017. Thirdly, he says it would be necessary for there to be a substantial disclosure exercise and, lastly, a further round of witness statements. His view is that this last stage would require until at least October 2017. His witness statement also points to what he says as being the reasonable decision not to undertake a detailed investigation of the issues arising from the amendment until this stage because there was no obligation on the part of Signia to do so, pending the decision of this court.
35. There are, however, three elements which were not dealt with by Mr. Steen in his witness statement and these are three elements which are necessary for the court to take a balanced view about the risk to the trial date and disruption.

(i) how many additional witnesses are likely to be called by Signia and Mr. Caudwell? The estimate was initially put at three to five, including Mr. Caudwell and Mr. Canfield, but it is notable that, during the hearing, that number increased by two, giving rise to some concern that careful and considered views had not been taken on that issue before the hearing.

(ii) The likely additional time that may be added to the trial if the amendment is permitted. Although information was provided during the course of the hearing, on instructions, I was told that the considered view was that there would be the need for an additional four to five days.

(iii) Neither side had thought it appropriate to enquire of Judges' Listing about whether the trial date could be maintained if the trial were lengthened at all, let alone by up to five days. That is, I think, a matter of regret. However, as I have indicated to the parties before delivering this judgment, I have made such an enquiry and Judges' Listing has confirmed that up to five days of additional trial time can be accommodated without affecting the trial date. I was also told that if the trial date is to be vacated it can be re-listed in late February 2018.

36. I now turn to an analysis of the two issues, the first being relevance. I consider I do not need to dwell on this threshold requirement for long. I have already noted the conditional language used by Lord Bingham in O'Brien. The test is not whether the evidence and, therefore, the issue NDS seeks to be added, is relevant; it is a question of whether the similar fact evidence can be regarded as possibly throwing light on or explaining the later events. I have to be satisfied that it is potentially probative and apply an objective test in the way it was applied by Sir David Eady in Hegazy. It seems to me this is essentially a matter of impression at this stage. In a conspiracy to injure claim in which NDS seeks to prove her case by inference, the events described by Ms. Gehlan bear a striking similarity to those complained about by NDS here. Particular points of similarity are the presentation of what were considered to be doubtful invoices followed a challenge by Mr. Caudwell. Next, there is the setting of high bonuses without having the intention to pay them. That is not the same thing as avoiding payment of the full value of shares, but it bears a sufficient proximity to it to be, at least prima facie, similar. Finally, there is the instigation of an expenses investigation leading to dismissal.
37. I do not find it necessary to characterise the probative threshold as being low. I am, however, satisfied that, applying the objective test, I have already indicated that such evidence is capable of making it more likely that NDS's case is true and more likely she will be able to prove at trial a predominant intention to injure.
38. I therefore turn to consider the case management issues. These, I have already summarised earlier in my judgment. I consider that the answer to many of these issues is informed, by no small degree, through considering the scope of the new case. In my judgment, it is not right to suggest that the English court would have to try the same issues as the Polish Labour Court. The allegations raised in the amendment are firmly focused on the conduct of Mr. Caudwell and Mr. Canfield in three discrete areas. The claim will not determine whether Ms. Gehlan and Ms. Burger were in breach of their contracts of employment or indeed whether Jatomi itself was in breach. The facts that are relied upon relate directly to Mr. Caudwell's state of mind and motivation for acting as he did and saying what he said. Properly analysed by reference to the notice of termination and the Polish claim, the overlap, in reality, is quite limited. I recognise, of course, that Signia and Mr. Caudwell are entitled to defend these allegations as they wish, but they are only entitled to do so by adducing relevant evidence. To my mind, it would not be proper or relevant for them to attempt to persuade this court to, in effect, try the Polish claims.
39. Mr. Steen's evidence is that, by granting permission to amend, Signia would need substantial periods of time in which to deal with the new case, culminating in an exchange of further witness statements in October 2017. This is at about the time the trial window opens. If he is right, it is difficult to see how the trial date could be maintained.
40. Although, to a limited extent, I accept the premise that Signia was not obliged to investigate the new issues in full detail prior to the hearing of the contested application for permission to amend, it is unsatisfactory that an attempt is made to achieve the outcome Signia seeks by posing case management obstacles given that, in my judgment, the proposed amendment raises issues which obviously pass the first stage, namely that they are relevant. This should have been recognised by Signia as long ago as September 2016. Indeed, it is notable that, at the hearing, the principal focus of Miss Carss-Frisk QC's submissions was on the second stage, not on relevance.
41. I would also make two further observations. First, Mishcon de Reya wrote on 23^rd September 2016, when the question of the amendment was fresh, dealing with case management issues in a very similar way to the way they are dealt with in Mr. Steen's evidence at the hearing. Had they been addressed then, there could not have been a basis for saying the amendment was very late. Secondly, I consider that Mr. Steen's evidence paints an excessively bleak picture and exaggerates the time Signia reasonably needs to deal with the new case.
42. It follows that I do not accept that the scope of the investigations Signia will have to undertake is very extensive or that another very substantial disclosure exercise will be needed, or, necessarily, that the court is likely to need to hear from five additional witnesses. It is, of course, open to the court to give directions, where appropriate and just to do so, limiting the number of witnesses at a trial.
43. I turn to deal with the overlap with the Polish proceedings. Although, of course, comity is important, I do not consider that the English court would be considering exactly the same issues as the Polish proceedings, albeit that the issues of fact overlap. There is some, albeit modest, risk of there being findings of fact which are inconsistent but I do not consider that risk comes close to outweighing the interests of justice in permitting NDS to put forward evidence that is not just relevant but likely to be of materially probative value in relation to the conspiracy to injure claim.
44. It therefore follows, in my judgment, that the proposed amendments raise issues which obviously pass the first test and I consider that the case management test is also satisfied. Balancing the probative value of the additional evidence against the cost and potential disruption to a trial is not a science. It is, however, wrong, in my judgment, to characterise, as Signia does, the probative value of the new claim as slight. It is far more weighty than that. It will be a matter for the trial judge, and for case management before the trial, to ensure that the focus of the trial is not disrupted.
45. I need then briefly to deal with the question of whether this is a very late amendment. I have already indicated that Mr. Steen's views about the time needed to deal with the case is exaggerated. I note that Signia and Mr. Caudwell are well-resourced and are represented by a substantial law firm. The claim has reached an advanced stage and the amount of work left to prepare it for trial, leaving aside the amendment, is relatively limited. It seems to me it should be possible for Signia to serve a defence to the amended claim within two months of today. It remains to be determined how the other case management issues, disclosure, witness statements and any other matters, are to be dealt with and when. They are properly issues to be left over from today. I am, however, satisfied that there is ample time to enable the new case to be prepared, without any unfairness to Signia and Mr. Caudwell, in good time for the October trial date. That view would not change even if I have perhaps taken a slightly over-narrow view of the scope of the new claim.
46. It follows that, on the facts, I can see no proper basis for concluding there is a significant risk of the trial date being lost. Even if that is the correct criterion for deciding whether an application is very late, which I do not accept, the application made even at an advanced stage of a claim is not a very late application. It follows that the additional stringent considerations summarised by the judge in Quah Su-Ling do not arise for consideration.
47. I conclude, therefore, by confirming that the amendment should be allowed. I propose to give initial case management directions today and then to require the parties to attend a further case management conference, and perhaps a costs and case management conference, before me shortly after the amended defence has been served. The date for that hearing is to be fixed without any delay and, if necessary, taking limited account of counsel's availability.
LATER
48. I am now dealing with the costs of the application in relation to which I have given judgment this afternoon. NDS, as the applicant, seeks her costs of that application and she seeks them on the indemnity basis, on the basis that there are aspects of Signia and Mr. Caudwell's behaviour that take the matter outside the norm, applying the well-known Excelsior test. The other side, that is Signia and Mr. Caudwell, say it is not right that NDS should have her costs of the application and the starting point in respect of any application for permission to amend is that the party seeking to amend will normally pay the costs of the application to amend unless it was unreasonable for the receiving party to oppose. It is said that it is normal for the party to be able to put the amending party to the test at a hearing.
49. In this case, it seems to me that the position is quite plain. Although Miss Carss-Frisk has referred me to a decision of Mann J in La Chemise Lacoste SA & Ors. v Skechers USA Ltd. [2006] All ER (D) 348, I do not consider there is any standard rule in relation to costs in respect of applications for permission to amend. The definition of "costs and caused by", para.4.2 of Practice Direction 44, is nothing more than a definition of that order. It does not reflect a standard practice. It seems to me that costs of amendments are, as any other costs, at large and that the Part 44 considerations fall to be applied in the usual way.
50. Here, there has been a heavily contested application and the Signia side has been unsuccessful. I indicated, I think plainly, in the judgment I have given, that, as to relevance, it should have been obvious in September 2016 that this evidence was relevant and passed the first threshold and, had case management considerations been taken into account at that point, there would have been no basis upon which it could have been properly argued that this was a very late amendment. That was the way in which the case was put forward and I have rejected that approach.
51. I have also rejected the evidence, at least in part, put forward on behalf of Signia in relation to the time it will take to deal with the amended case as being exaggerated. It seems to me it would be an extremely odd outcome if the court were to condemn the party applying for permission to amend in these circumstances to pay Signia's costs.
52. As an alternative, Miss Carss-Frisk invites me to reserve the costs to the trial judge. That, to my mind, is an extremely unattractive approach and, inevitably, would leave a trial judge having to deal with a contested application at the end of a trial, arising from a hearing about which the trial judge inevitably knows nothing at all. That does not attract me as an approach. As a further alternative, it is suggested that the costs should be costs in the case. It is not in dispute that the costs thrown away by the amendment will be subject to the usual order.
53. Here, as it seems to me, the application arose out of information which came to NDS which was not in her possession prior to the case management conference last year. Having put forward the proposed amendment, Signia should, after consideration, have agreed to the amendment and adopted a sensible and realistic view that the court was very likely to allow the amendment. The basis upon which the application has been opposed has turned out to be very limited and, indeed, much less extensive than the way it was initially put. The allegations of conduct and the Recast Brussels Regulation arguments have been abandoned.
54. All in all, I am satisfied that this is an appropriate case in which to require Signia and Mr. Caudwell to pay the cost of the application. I am not, however, satisfied that the conduct in supplying a skeleton argument, with appendix 1 included within it, is such to take the application out of the norm. Looked at by the norm of these proceedings, that conduct may be unsatisfactory, but it is not such that it should influence the court to make anything other than a costs order on the standard basis.
LATER
55. I am dealing with a summary assessment now. The principle is, of course, doubts are resolved in favour of the paying party. The statement of costs does not give rise to many points of concern. The hourly rates are not in dispute. Counsel's fees do not appear to me to be objectionable and the points raised by Miss Carss-Frisk QC arise from the summary in relation to documents. They do give rise to some doubts about the amount of time spent which I think does need to be reflected in some adjustment to the total. Against that, the schedule does not include the costs of today and I will make some upward adjustment to take that into account.
56. The simplest way of dealing with this, taking into account the points raised by Miss Carss-Frisk QC, is to make an adjustment pre-VAT down to £29,000, but then to add £1,500 for the costs of today, which produces a figure of £30,500, to which VAT will be added. That will be the amount payable. VAT, of course, is on the pre-court fee figure.
LATER
57. I am dealing now with the application made on behalf of Signia and Mr. Caudwell for permission to appeal on three grounds, first, on admissibility, which is said to be a question of law. It is my judgment that the position is extremely clear on the authorities and there is no real prospect of the determination I have made being overturned on an appeal.
58. As to the second, discretionary series of factors, those, of course, are matters of discretion. They involve largely case management decisions. It is rare for a court, on an appeal, to interfere with the exercise of such discretion. I can see no real likelihood of the court doing so here.
59. Somewhat to my surprise, the question of very late amendment is the third ground of permission to appeal. On the basis of the conclusions on the facts I have reached, I simply do not see how such a case can be maintained and I do not see it has any real prospect of success. I therefore refuse permission to appeal.
APPENDIX 1

Conspiracy to Injure

60. A Even if, which is denied, Ms. Dauriac-Stoebe was in breach of her Service Agreement or any other duty, that was not the reason for her treatment or for the Company's purported acceptance of her repudiatory breach on 21 January 2015. Instead, Mr. Caudwell, Grecco and the Company ("the Conspirators") conspired to terminate Ms. Dauriac-Stoebe's employment, to remove her as a director and to deprive her of her beneficial interest in the Shares as punishment for her raising an allegation that Mr. Caudwell had engaged in an exercise to pay £1.7 million into the Company using false invoices and evading VAT. Paragraphs 33-38 and 45 of the Defence are repeated. Ms. Dauriac-Stoebe draws a particular inference the Conspirators acted with a predominant motive to injure her from the following matters:

a. The extraordinary series of events described at paragraphs 38-44 of the Defence, which would be inexplicable if the Conspirators had any desire to carry out a genuine inquiry into whether there had been any wrongful expenses claims.

b. That the bulk of the expenses relied upon by the Company to support the claim of dishonesty against Ms. Dauriac-Stoebe were expenses incurred by her in attending meetings with Mr. Caudwell himself (as explained at paragraph 104 of the Defence). Hence Mr. Caudwell must know now that his allegations of expenses fraud are untrue and a pretext.

c. That Mr. Caudwell has taken a prominent public position on the evils of tax avoidance and would therefore be particularly affronted by Ms. Dauriac-Stoebe's decision to raise the Fake Fee Issue, as explained in paragraphs 33-36 of the Defence.

d. That Mr. Caudwell, acting either by himself or through Mr. Canfield, has behaved similarly in his capacity as a shareholder of Pure Health and Fitness Sp.zo.o (a Polish company, trading under the name "Pure Jatomi Fitness", hereafter "Jatomi"), punishing executives for enquiring into matters relating to his fiscal involvement with the company by commencing an investigation into the misuse of expenses in an attempt to obtain evidence to support dismissals and thereafter dismissing those executives prior to their receipt of bonuses so as to avoid paying those bonuses. In particular:

(i) In Autumn 2015, the Chief Executive Officer of Jatomi (Ms. Gehlan) raised with Mr. Canfield by telephone a concern that both she and Jatomi's Chief Marketing and Brand Officer (Ms. Burger) had about a collection of substantial invoices that Mr. Caudwell had presented to Jatomi at the same time. Those invoices were for management, recruitment and other services that neither Ms. Gehlan nor Ms. Burger ("the Executives") thought Mr. Caudwell had in fact carried out. Mr. Canfield did not claim that the invoices were accurate, but said words to the effect that it "did not matter because the money was really going into the same place anyway."

(ii) In December 2015, the Executives suggested to Mr. Caudwell in a meeting that Jatomi's targets were likely to be met so that 2015 bonuses would be payable. Mr. Caudwell said words to the effect that he "always sets the bonuses high but then finds a way to fire the employee before he has to pay it". Ms. Gehlan protested that not meeting obligations to Polish staff members would have negative consequences. Later in the meeting, Mr. Caudwell suggested a new commission plan for staff and Ms. Burger challenged the plan. Mr. Caudwell said to Ms. Burger words to the effect that she "did not want to go down this road with me" and that "she would not like the outcome".

(iii) In January 2016, Mr. Caudwell instigated an investigation into the expenses of the Executives. Despite the investigation, conducted by Mr. Canfield and another of Mr. Caudwell's trusted lieutenants, Mr. Fenton (who by then had been installed as the Chief Financial Officer at the direction of Mr. Caudwell), Mr. Caudwell was able to find no evidence on which he could mount an allegation of misused expenses. However, on 24 February 2016, the Executives were each summarily dismissed, purportedly for a range of misdeeds including, in the case of Ms. Burger and consistently with the warning that Mr. Caudwell had given her in December 2015, "a lack of discipline and disobedience in the workplace". These simultaneous dismissals of the Executives were effected four days before their bonuses would otherwise have been payable.

(iv) The Executives believe that the investigation into their expenses was commenced because of Mr. Caudwell's displeasure in response to their actions described in sub-paragraphs (i) and (ii) above, or because Mr. Caudwell wished to avoid having to pay bonuses to them, or because of a combination of those reasons, and that its purpose was to serve as a pretext for dismissal. When those investigations uncovered no evidence on the basis of which wrongdoing could be alleged against the Executives, Mr. Caudwell nonetheless required their dismissals just before bonuses were due to be paid, citing reasons which the Executives believe had no foundation and were designed to disguise the real reason for their dismissals. Ms. Dauriac-Stoebe infers that the belief of the Executives is well founded.

61. AA Alternatively, if, which is denied, the predominant motive of the Conspirators was not to injure Ms. Dauriac-Stoebe, she will rely upon Mr. Caudwell's assertion (described at paragraph 92A(d)(ii) herein) that he "always … finds a way to fire" workers before having to pay them high bonuses, and the fact that Mr. Caudwell has deliberately dismissed other employees of businesses in which he was a controlling investor shortly before bonuses were due to be paid, as indicating that injury to Ms. Dauriac-Stoebe was a necessary means of achieving a desired end, i.e. depriving her of her shares at low value for the Conspirators' own financial benefit. In those circumstances, the Conspirators conspired to use the unlawful means described at paragraphs 38 to 44 of this Additional Claim.
62. B The conspiracy has caused Ms. Dauriac-Stoebe and the Trustee to suffer loss, including the lost value of the Shares.