Delay amending your case at your own peril!

The litigation team has been in court again on the Invest Bank v El-Husseini case, with another win for their defendant clients through another dismissal of an application by the claimant bank.

As part of the bank’s main claim under s423 of the Insolvency Act 1986, which seeks to reverse various transfers of value from the first defendant or companies owned by him to his family members or their companies, it issued an application to amend its Particulars of Claim just five weeks ahead of the four week trial, scheduled to begin on 1 July 2024.

The defendants had already consented to 66 amendments proposed by the claimant, who sought 77  further amendments for adjudication by the court. Mr Justice Bryan dismissed all the bank’s proposed amendments and found that the overarching point is that the amendments were made so late so that it would simply be impossible to complete all that would need to be done before trial. However, the Judge found that there were also ‘fundamental’ reasons why particular amendment should not be allowed in any event.

He agreed with our case that the amendments were also late in the sense that they could have all been advanced very much earlier, with the vast majority being available in 2021 or 2022. The Judge affirmed that ‘the very lateness of proposed amendments dilutes the inherent prejudice suffered by a claimant in such amendments not being allowed, as the claimant, in such circumstances, only has itself to blame’.

The Judge further agreed that some of the amendments had no real prospect of success through being arguably time-barred and not being properly pleased and/or particularised.

Mr Justice Bryan seemed particularly unimpressed by the claimant’s argument and ‘constant theme’ of its arguments that its legal team have been ‘piecing the jigsaw together’ and ‘fighting the case half-blindfolded’, given its apparent limited visibility of the transactions in question, saying it could only now attempt to build that jigsaw. On the contrary, the Judge was satisfied that, not only did the Bank ‘had all the jigsaw pieces to advance its pleas a long time ago, it also had the picture (and could plead the picture) a long time ago’.

The judgment serves as a warning to claimants that an application to amend must be made as soon as possible, if it must be late there is a heavy burden to justify it.

The appeal was dismissed and costs were awarded to the defendants.