EBS and ors –v- Gungor. Nov 2017, before Newey J in the Chancery Division, on appeal from Recorder Berkley at Central London, Lawtel.
On the morning of a 2-day trial D sought to advance an un-pleaded case in a skeleton argument. The Recorder permitted D to amend notwithstanding it caused the trial to be vacated. The Recorder directed himself to the applicable authorities: Qua Su-Ling v Goldman Sachs  EWHC 759 (Comm); Swain-Mason v Mills & Reeve  1 WLR 2735; Dany Lions Ltd v Bristol Cars Ltd  EWHC 928 (QB). However, he then found there were special circumstances which favoured allowing the amendment.
On appeal Mr Justice Newey reviewed and rejected each of the Recorder’s reasons, which included:
1. English was not D’s first language (a legally represented party relies on its advisers).
2. The case was about money (most cases are about money).
3. The generosity of the 2-day listing.
4. Cs’ not having complained about the scaffolding for some time.
5. That D’s solicitors may or may not have been negligent.
6. That D’s proposed defence might have a real prospect of success / C might obtain a windfall if D was not permitted to amend (this will be almost universally true, if it were not the party would not seek to amend).
Newey J held the Recorder had taken into account a number of matters that were not relevant and paid no regard to factors in favour of refusing the application. He then re-exercised the discretion and refused the amendment.