Neutral Citation Number: [2024] EWHC 1160 (Comm)
Case No: CL-2021-000321
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Rolls Building
7 Rolls Building Fetter Lane
London EC4 1NL
Date: 10 May 2024
Before :
THE HON.MR JUSTICE BRYAN
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Between :
(1) STEENBOK NEWCO 10 SARL
(2) IBEX RETAIL INVESTMENTS LIMITED
Claimants
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(1) FORMAL HOLDINGS LIMITED
(2) MR MALCOLM KING
(3) MR NICHOLAS KING
Defendants
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Andrew Ayres KC and Tom Rainsbury
(instructed by Reynolds Porter Chamberlain LLP) for the Claimants
Alan Gourgey KC, Bobby Friedman and Tara Taylor
(instructed by DLA Piper UK LLP) for the Defendants
Hearing dates: 9 and 10 May 2024
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Approved Judgment
THE HON. MR JUSTICE BRYAN
Approved Judgment
Steenbok and anor v Formal Holdings and ors
MR JUSTICE BRYAN :
A. INTRODUCTION AND BACKGROUND
1. The parties appear before the Court upon the hearing of the two day Pre Trial Review of
the claims in this action, which is fixed for a 7 week trial starting in a mere 4 weeks time
on 10 June 2024. In the context of the allocated one week’s judicial pre-reading time
(which is itself indicative of the complexity of the existing pleaded issues), the Skeleton
Argument of the Claimants Steenbok Newco 10 Sarl and Ibex Retail Investments Limited
(“Claimants”) is to be served on 3 June 2024, followed by that of the Defendants Formal
Holdings Limited, Mr Malcolm King and Mr Nicholas King (“Formal”, “Malcolm King”
and Nicholas King”) on 5 June 2024. There are accordingly only 15 working days after
the PTR before the Claimants’ Skeleton must be lodged, by which time, of course, all
issues must be crystallised, all disclosure given and all relevant evidence, factual and
expert must have been served, and all in good time before that so as to facilitate the
preparation of such skeletons and to enable the (inevitably extensive and onerous)
preparation for the trial itself. The parties are said to be trial ready in relation to the
existing pleaded issues subject only to resolution of certain matters arising for
consideration at the PTR and any necessary direction in relation thereto, none of which
are likely to give rise to difficulties in the preparations for trial still less put the viability
of the trial in danger.
2. However there is an extant substantive application before the Court, which must
inevitably be determined first at the start of this PTR, and which has major potential
implications for trial preparation and the trial itself, namely the Claimants’ application
dated 10 April 2024 (the “Amendment Application”) for permission to make amendments
to their Re-Amended Particulars of Claim (“RAPOC”) with associated amendments to
their Amended Claim Form (the “Proposed Amendments”).
3. The Proposed Amendments are, on any view, very substantial and are made very shortly
before trial. They run to no less than 53 pages of new text (rather more than Particulars of
Claim are meant to comprise in the first place without prior permission of the Court).
The parties are diametrically opposed in their stance to the Proposed Amendments. The
Claimants submit in their Skeleton Argument that, “none of [the Claimants’]
Amendments are (i) out of the ordinary at this stage of proceedings for heavy Commercial
Court litigation, (ii) fundamentally change the nature of the claim in any way, (iii) require
a re-run of disclosure, witness evidence or expert evidence, (iv) plead any new claims in
German or Austrian law (which are the applicable laws for all claims being made) or (v)
involve a re-write of the case”.
4. In contrast, the Defendants submit that it is readily apparent from even a cursory read of
the Proposed Amendments that the Claimants have effectively rewritten their case,
ripping up important parts of their existing case and substantially recasting the case in the
course of which it is said that they seek to advance new claims (after the relevant
limitation periods have expired and so have no real prospects of success) which if CPR
17.4 might otherwise apply (which it is said does not apply to the vast majority of the
claims) then all are reasonably arguably time barred and do not arise out of the same or
substantially the same facts, and/or are not properly pleaded and/or have no prospects of
success for other reasons, and which are in any event (fundamentally) made far too late
(and should and could have been made much earlier, if at all), and would require further
rounds of pleadings, and then disclosure (with fresh issues for disclosure), further witness
THE HON. MR JUSTICE BRYAN
Approved Judgment
Steenbok and anor v Formal Holdings and ors
evidence (potentially including from new factual witnesses) and further expert evidence
on German and Austrian law, none of which, it is said could be undertaken prior to trial,
and which it is said would unfairly and prejudicially detract from the Defendants’ proper
trial preparation, and could not in fact be achieved within the time available, and would
derail the trial in circumstances where an adjournment would not be appropriate in any
event (even had the Claimants applied for one which they have not). As such, and save
for minor deletions/corrections, the Defendants mount a root and branch opposition to the
Proposed Amendments.
5. There is extensive witness evidence before me in support of, and in opposition to, the
amendments, to all of which I have had regard. The application is supported by the 14th
statement of Mr Kouchikali on behalf of the Claimants (“Kouchikali 14”) and opposed in
the eighth and ninth statements of Mr Brierley on behalf of the Defendants (“Brierley 8”
and “Brierley 9”) (the latter of which addresses confidential matters). Mr Kouchikali
replies to the Defendants’ evidence in his 15th statement (“Kouchikali 15”). I also have
two very substantial Skeleton Arguments before me (the Claimants’ condensed into 26
pages through, amongst other techniques, the use of narrow margins and the Defendants’
at an uncondensed 39 pages). Even more recently (and after the allocated reading day),
the Claimants served a further submission entitled, “Claimants’ Note on the Relation
Back Argument” (the “Claimants’ Note”) to which the Defendants responded in further
submissions entitled, “Defendants’ Response to Claimants’ Note Concerning the Relation
Back Argument” (the “Respondents’ Note”).
6. I have heard a full day’s oral argument on the Amendment Application. In circumstances
where the Amendment Application needs to be determined before the remainder of the
PTR can be proceeded with today, and any necessary directions given, and in
circumstances where to reserve judgment would itself prevent the PTR being completed
and would not allow sufficient time before trial for any consequential trial preparation
(and associated directions), it is necessary to give judgment on the Amendment
Application at this time on an ex tempore basis, and within the inherent time constraints
upon doing so. Whilst this necessitates a concise approach to the evidence before me and
associated submissions, I confirm that I have given careful consideration to all the
evidence before me, and all the submissions that have been made to me.
B. APPLICABLE LEGAL PRINCIPLES
7. Save in the context of whether the “relation back” provisions apply in the context of
foreign limitation periods, the applicable principles in relation to the amendment of
statements of case were, unsurprisingly, largely common ground albeit that there were
differences of emphasis between the parties.
B.1 THE DISCRETION UNDER CPR 17.3
8. CPR 17.1(2) provides that, where a statement of case has been served, “a party may
amend it only (a) with the written consent of all the other parties; or (b) with the
permission of the court”. CPR 17.3 contains a general discretion to grant permission.
9. The issue of whether to allow amendments involves the exercise of the Court’s discretion
– see Quah v Goldman Sachs [2015] EWHC 759 (Comm) at [38(a)]. This discretion is
subject to CPR 17.4 (as addressed below). The circumstances in which amendments may
be put forward are, as it has been put, “infinitely variable” and each application requires
