The High Court has reiterated that the instruction of new counsel with "fresh eyes" is not a good reason to allow late amendments to statements of case.
In Donovan & Anor v Grainmarket Asset Management LLP, the Claimant sought to make a number of amendments to his claim only a few weeks before the start of the trial on 10 May 2019. One of the reasons given was that new counsel had been instructed on 3 March 2019, with the new application containing the claimant's proposed arguments suggested by new Counsel issued on 5 April 2019 - around 5 weeks before the start of the trial.
Martin Griffiths QC - sitting as a Deputy High Court Judge in Donovan - applied the principles from CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd that should be applied when considering late amendments to claim.
These principles include whether the proposed amendments would force the parties to revisit a significant step in the litigation, such as disclosure or the provision of witness statements (in this case, it was concluded that the Claimant's amendment would have this effect) and also whether the amendments unreasonably prejudice the other party in the proceedings.
Mr Griffiths QC stated that that the Claimant's explanation for the late amendments was weak and stated: "When the explanation for the lateness of the application is weak, as here, the amount of prejudice to the other side that may justify refusal of the application, in the exercise of the Court's discretion and balancing the factors identified in the authorities, will be less than if the explanation has greater merit"
The explanation given for the change is the "fresh eyes" brought to the case by recently instructed junior Counsel. However, "a fresh examination of possible arguments by fresh counsel" was said by Carr J to be "precisely the sort of reason that does not find favour with the court