When is an application to amend pleadings made late, more particularly too late? This is something we have looked at several times before. It was considered by H.H. Judge Keyser Q.C. in Hamizay Limited -v- Robin Swailes  EWHC B14(Ch).
- An application to amend the defence, made on the morning of the claimant’s application for summary judgment, was made too late and would not be permitted.
The claimant issued proceedings claiming specific performance of the sale of a property. The facts were not disputed. The defendant alleged that it had exercised its right to terminate the contract and retain the deposit. The claimant applied for summary judgment. On the morning of the application for summary judgment the defendant attempted to raise the issue of repudiatory breach. The judge stated that such an argument would have to be specifically pleaded, upon the defendant producing an amended pleading permission to amend was denied.
THE JUDGMENT ON AMENDMENT
I reject the application for permission to amend for two basic reasons. First, in the context of this case, the application is too late and gives rise to material disadvantage to the claimant and inconvenience to the administration of justice. I have regard to the overriding objective in Part 1 of the Civil Procedure Rules 1998. I also have regard to the authorities dealing with the correct approach to applications for permission to amend, including late applications; see in particular Cobbold v Greenwich LBC (August 1999, unreported), Worldwide Corporation Ltd v GPT Ltd  EWCA Civ 1894, and Swain-Mason v Mills & Reeve (a firm)  EWCA Civ 14,  1 WLR 2735. As the Court of Appeal has recently indicated, lateness is a relative concept and must always be considered in the context of the particular facts of a case; see Hague Plant Ltd v Hague EWCA Civ 1609, per Briggs LJ at  to . To that extent it falls to be considered a part of the balancing exercise that must always take place.
It might be said that this is only hearing of cross-applications for summary judgment. But the plain fact is that this case has proceeded on the basis that, one way or the other, the applications would be dispositive of the proceedings; indeed, that is the very way that Mr Hodgkin opened the matter. As one would expect in this sort of case, the hearing is not merely an attempt to take a short cut on issues that otherwise are heading for trial; the expectation is that the applications will dispose of the case. The matter has been case-managed with a view to these applications and, in respect of what is a relatively simple contract of sale, the resolution is still awaited after several months. In that context the application for permission to amend seems to me to be particularly late.
Mr. Hodgkin said, and I accept, that he was not in a position to deal properly with the matter raised in the proposed amendment. No doubt he could have made a stab at it, but that is a different matter and his caution seems to me entirely reasonable. In those circumstances, to permit or countenance the amended case would involve either an adjournment of this hearing, so that the point could be dealt with as part of the cross-applications under Part 24, or a simple refusal of summary judgment for the claimant on the basis that it was impossible to say at present whether the point was a good one. Either way, the proposed amendment would significantly affect the course of the proceedings, unless Mr. Hodgkin were forced to deal with it in circumstances where he justifiably felt unable to do so properly. That is, in my judgment, a sufficient reason for refusing the application.