Case No: 1715-6903-6004-3295
SITTING AT THE ROYAL COURTS OF JUSTICE
Royal Courts of Justice, Strand, London, WC2A 2LL
Before:
MR. NICHOLAS ALLEN KC
(Sitting as a Deputy High Court Judge)
Between:
SM
Applicant
- and -
BA
First Respondent
- and-
WD
Second Respondent
(No. 3: Amendments to Statements of Case)
Ms. Deborah Bangay KC and Mr. Edward Hicks
(instructed by Rayden Solicitors) for the Applicant
Ms. Sarah Phipps KC and Ms. Alexandra Hampton
(instructed by Levison Meltzer Pigott) for the First Respondent
Mr. Alexander Chandler KC and Mr. James Weale
(instructed by Wedlake Bell) for the Second Respondent
Hearing date - 8th January 2026
Draft judgment circulated to the parties – 12th January 2026
Judgment
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
Nicholas Allen KC:
I am concerned with an application made on 19th December 2025 by which W seeks permission to amend her Points of Claim and adduce two further witness statements (one from W and one from her mother) in advance of the hearing of a preliminary issue as to the beneficial interest in a property known as DC (“the preliminary issue”).
My two previous judgments in relation to interim applications in this case were published as SM v BA (Legal Services Payment Order) [2025] EWFC 7 on 16th January 2025 and SM v BA (No. 2) (Maintenance Pending Suit) [2025] EWFC 28 on 19th February 2025.
Since my last published judgment I have continued to case manage this case (at hearings on 2nd April 2025, 22nd July 2025 (after the private FDR Appointment heard by Sir Philip Moor on 2nd – 3rd June 2025) and 9th October 2025). I have also given a written judgment on the costs of various interim applications dated 24th November 2025 (amended after receipt of further submissions (which I had invited) on 27th November 2025).
Once again I shall refer to SM as ‘W’ and BA as ‘H’. On 2nd April 2025 I acceded to an application made by W on 28th March 2025 to join H’s sister, WD, as Second Respondent for the purposes of determining the beneficial ownership of DC. I shall refer to her as ‘S’. No disrespect is intended by referring to the parties in this way.
The registered title to DC is held in S’s name. W asserts that she is the beneficial owner. The property is currently occupied by W’s mother and brother.
The preliminary issue is listed for determination on 23rd February 2026 with a time-estimate of five days. Thereafter a pre-trial review is listed on 16th April 2026 and a final hearing on 22nd June 2026 with a time-estimate of 10 days. This is a total of 16 further days of court time.
The application to amend the points of claim was made by Mr. Hicks on W’s behalf. It was opposed by Mr. Weale on S’s behalf and by Ms. Phipps on H’s behalf. Both Mr. Hicks and Mr. Weale are specialist Chancery counsel. I am grateful to all three counsel for the quality of their position statements and oral submissions.
I was first notified of this application by an email sent to me by W’s solicitors at 4.41 pm on 19th December 2025. It had been served on H’s and S’s solicitors a few minutes earlier. W’s solicitors sought for the application be heard on 8th January 2026 when the case was already listed for me to hear two applications made by W for further disclosure by H and S dated 2nd October 2025 and 19th November 2025 respectively. H’s solicitors and S’s solicitors responded to me on 23rd December 2025 stating the Christmas/New Year break left only 5½ working days before the hearing which was insufficient and considered this request to be an abuse of process.
Mr. Weale in his position statement described the service on this date and time without any prior warning as an “ambush”. Ms. Phipps described it as “egregious”. Although technically the required seven days’ notice was given, I have some sympathy with such descriptions not least because it must be the case that the application had been under preparation for some time.
On 2nd January 2026 I replied to all parties stating the application would be listed for directions or determination on 8th January 2026 but if there was insufficient time for me to deal with the same (or I was persuaded that insufficient notice of the application had been given) I would relist it for another date that would not jeopardise the effectiveness of the preliminary issue hearing.
In the event neither H nor S sought for the application not to be heard. It was said on H’s behalf that he was mindful of the additional costs and delay which would be caused by a further hearing and, provided the court had the time to read the necessary documents and consider the arguments fully, he was content for the application to be determined.
There was sufficient time for me to deal with the application on 8th January 2026 (and also the two applications for further disclosure) although I had to reserve judgment.
The parties’ costs are very significant. Forms H show W has already spent c. £1.32 million on these proceedings and anticipates spending a further c. £990,000 – i.e. a total of c. £2.3 million. H has spent c. £1.04 million and anticipates spending a further c. £757,000 (assuming W’s application is refused) - a total of c. £1.79 million. Together H’s and W’s costs are therefore expected to be c. £4.1 million by the end of the final hearing. S’s costs to date are c. £209,000 and she estimates incurring a further c. £265,000 to the conclusion of the preliminary issue hearing (again assuming this application is refused).
This suggests the parties’ combined total costs may well exceed £4.5 million. This is a quite staggering figure.
Ms. Phipps estimated the parties’ total costs in relation to the preliminary issue alone will total c. £1 million (again assuming W’s application is refused).
As to the costs of the hearing on 8th January 2026, W had not filed an N260 but since the last hearing on 9th October 2025 her total costs have increased by c. £230,000. H’s costs were c. £31,000 (including half of Ms. Phipps’ brief fee) and S’s costs were c. £43,000 (including all of counsel’s fees). Assuming W’s costs to be not dissimilar to H’s costs the parties have incurred costs of c. £105,000 in relation to this application alone.
This is all in respect of a property – DC – which is said to be worth between c. £1.2 million and £1.5 million and which is subject to a charge for a loan of c. £1.2 million which is in dispute. Therefore the net equity in the property could be as high as c. £1.5 million (the higher value and disregarding the charge), as low as £0 (the lower value and taking account of the charge), or between these two figures at c. £1.2 million or c. £300,000.
This is in turn in the context of the parties’ assets which W currently estimates to be c. £99 million and H asserts to be c. £9 million. The main differences between these figures being (i) whether H has c. £23.5 million in asserted loans owing to his father; (ii) whether the value of H’s interest in one company is £14 million or £28 million; (iii) whether H has an interest at all in a second company valued at c. £40 - £45 million; and (iv) whether H is the beneficial owner of a property in Country A worth c. £2.4 million.
Whatever my ultimate conclusions on computation may be, the costs spent in respect of the preliminary issue are clearly disproportionate.
In my two judgments referred to at paragraph 2 above I made reference to the level of costs, their disproportionate nature, their trajectory, and that no party litigates with a ‘blank cheque’ at paragraphs [91] - [93] of the former and [122] – [124] of the latter respectively.
As Ms. Phipps observed in her position statement, notwithstanding what I have said previously, “the (expensive) litigation juggernaut hurtles on, leaving emotional and financial havoc in its wake”.
At this stage of the proceedings I can do little more than reiterate my previously expressed concerns as to the level of costs incurred and my warning as to the possibility of inter partes costs orders if I conclude in due course there has been litigation misconduct.
In an email to the parties of 23rd December 2025 in reply to those I refer to at paragraph 8 above I stated that “in both in giving effect to the overriding objective and otherwise I remain clearly of the view that the preliminary issue hearing should be effective within its current time-estimate and such directions as I give will be guided by this intention.”
The applicable legal framework
The claim in respect of DC could equally have been brought (and were it not for the financial remedy proceedings would more naturally have been brought) in either the County Court or the Business and Property Courts. It is well established, however, that a dispute between a spouse and a third party as to the beneficial ownership of property can be adjudicated in financial remedy proceedings (Tebbutt v Haynes [1981] 2 All ER 238).
However, in relation to such an adjudication, as Nicholas Mostyn QC (sitting as a Deputy High Court Judge) observed in TL v ML And Others (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FLR 1263:
[34] It is to be emphasised however, that the task of the judge determining a dispute as to ownership between a spouse and a third party is, of course, completely different in nature from the familiar discretionary exercise between spouses. A dispute with a third party must be approached on exactly the same legal basis as if it were being determined in the Chancery Division.
Similarly in A v A [2007] 2 FLR 467 Munby J (as he then was) stated as follows:
[21] … But what it is important to appreciate (and too often, I fear, is not appreciated at least in this division) is that the relevant legal principles which have to be applied are precisely the same in this division as in the other two divisions.
Further of course the Family Division “is not some legal Alsatia” (Richardson v Richardson [2011] 2 FLR 244 per Munby LJ (as he then was) at [53]) and courts exercising family jurisdiction “do not occupy a desert island” (Prest v Petrodel Ltd [2013] 2 FLR 732 per Lord Sumption at [37]). Sir James Munby P said similarly in Kerman v Akhmedova [2018] 2 FLR 354 at [21]-[22].
The FPR 2010 does not contain rules dealing with the amendments to statements of case. Given that financial remedy cases are not regulated by pleadings it is unsurprising that the FPR 2010 does not contain rules dealing with the same. In such circumstances recourse may be had to the CPR 1998 where such amendments are governed by Part 17. As was said in Re P, H-L (Children) (Mobile Phone Extraction) [2023] 2 FLR 528 per King LJ at [54] “[i]t is well established that, where there is a gap in the FPR 2010, recourse is to be had where appropriate, to the CPR” and as Hughes LJ (as he then was) observed in a “Postscript” to Goldstone v Goldstone [2011] 1 FLR 1926 at [71], where the FPR 2010 is silent the court may have regard to the principles as set out in the CPR 1998 by analogy.By way of one example, in Tchenguiz-Imerman v Imerman [2014] 1 FLR 232 Moylan J (as he then was) was referred to the CPR 1998 for guidance on the issue of privilege.
Pursuant to CPR 1998 r17.1(2) if a statement of case has been served a party may amend it only with (a) the written consent of all the other parties; or (b) the permission of the court. Rule 17.3 then deals specifically with amendments made with the permission of the court.
There was no disagreement between counsel as to the legal framework.
In CIP Properties (AIPT) Ltd v. Galliford Try Infrastructure Ltd (No. 3) [2015] EWHC 1345 (TCC) – where the application to amend was made in April 2015 and the trial was listed for January 2016 - Coulson J (as he then was) stated as follows:
[15] In my view the traditional approach outlined by Peter Gibson LJ in Cobbold v Greenwich LBC (1999 unreported), to the effect that "[a]mendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party or parties caused by the amendment can be compensated for in costs…" is no longer the right starting point. Indeed it is arguable that it never was…
[16] The subsequent decision of the Court of Appeal in Swain-Mason and Others v Mills and Reeve LLP [2011] EWCA Civ 14 also stressed that, when dealing with very late amendments, the court should be less ready than in former times to grant a late application to amend …
[17] In Andrew Brown and Others v Innovatorone PLC and Others [2011] EWHC 3221 (Comm), Hamblen J said that parties had a legitimate expectation that trial dates would be met and they would not be put back or delayed without good reason. At paragraph 14 of his judgment, the judge set out some of the likely factors that would be involved in striking a fair balance. They were:
the history as regards the amendment and the explanation as to why it is being made late;
the prejudice which will be caused to the applicant if the amendment is refused;
the prejudice which will be caused to the resisting party if the amendment is allowed;
whether the text of the amendment is satisfactory in terms of clarity and particularity.”
Coulson J then considered the four most recent cases concerned with amendments (Archlane Ltd v Johnson Controls Ltd [2012] EWHC B12 (TCC) per Edwards-Stuart J, Hague Plant Ltd v Hague and Others [2014] EWCA Civ 1609 per Briggs LJ (as he then was), Bourke and Another v Favre and Another [2015] EWHC 277 (Ch) per Nugee J (as he then was) and Wani LLP v Royal Bank of Scotland PLC and Another [2015] EWHC 1181 (Ch) per Henderson J (as he then was)). He observed that in all four cases late amendments were refused by the court even where their effect would not have resulted in the adjournment of the trial. He then continued as follows (a summary that was approved in ABP Technology Ltd v Voyetra Turtle Beach Inc [2022] EWCA Civ 594 at [23-25]):
[19] In summary, therefore, I consider that the right approach to amendments is as follows:
The lateness by which an amendment is produced is a relative concept (Hague Plant). An amendment is late if it could have been advanced earlier, or involves the duplication of cost and effort, or if it requires the resisting party to revisit any of the significant steps in the litigation (such as disclosure or the provision of witness statements and expert’s reports) which have been completed by the time of the amendment.
An amendment can be regarded as 'very late' if permission to amend threatens the trial date (Swain-Mason), even if the application is made some months before the trial is due to start. Parties have a legitimate expectation that trial dates will be met and not adjourned without good reason (Brown).
The history of the amendment, together with an explanation for its lateness, is a matter for the amending party and is an important factor in the necessary balancing exercise (Brown; Wani). In essence, there must be a good reason for the delay (Brown).
The particularity and/or clarity of the proposed amendment then has to be considered, because different considerations may well apply to amendments which are not tightly-drawn or focused (Swain Mason; Hague Plant; Wani).
The prejudice to the resisting parties if the amendments are allowed will incorporate, at one end of the spectrum, the simple fact of being 'mucked around' (Worldwide), to the disruption of and additional pressure on their lawyers in the run-up to trial (Bourke), and the duplication of cost and effort (Hague Plant) at the other. If allowing the amendments would necessitate the adjournment of the trial, that may be an overwhelming reason to refuse the amendments (Swain Mason).
Prejudice to the amending party if the amendments are not allowed will, obviously, include its inability to advance its amended case, but that is just one factor to be considered (Swain-Mason). Moreover, if that prejudice has come about by the amending party's own conduct, then it is a much less important element of the balancing exercise (Archlane).
The applicable principles were also set out in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm) per Carr J (as she then was). Here the application to amend was made three weeks before trial. She stated (at [36]) that an application to amend will be refused if it is clear that the proposed amendment has no real prospect of success where the test to be applied is the same as for summary judgment under CPR Part 24. This was not an argument pursued on H’s and S’s behalf.
Beyond that, the relevant principles applying to “very late” – as opposed to merely “late” – applications to amend were summarised by Carr J at [38] as follows:
[38] Drawing these authorities together, the relevant principles can be stated simply as follows:
whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted;
where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission;
a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept;
lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done;
gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;
it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay;
a much stricter view is taken nowadays of non-compliance with the Civil Procedure Rules and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so.
These principles were further discussed in CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs and Another [2023] EWCA Civ 480 per Sir Geoffrey Vos MR and Newey LJ at [67] - [77].
I agree with Mr. Hicks that the principles from these two cases can be distilled as follows:
whether to allow an amendment is a matter for the discretion of the court applying the overriding objective, balancing the injustice if the amendment is refused against the injustice if it is permitted (Quah Su-Ling at [38 a));
it is appropriate to draw a distinction between “late” and “very late” amendments, the latter being amendments which will cause the loss of the trial date (Quah Su-Ling at [38 c)], CNM Estates at [67]);
the general rule is that except in the case of “very late” amendments, unless the claim has no real prospect of success, the merits should be determined at the full trial (CNM Estates at [77]);
where the amendment is “very late” the applicant will face a heavy burden to justify breaking the fixture (Quah Su-Ling at [38 b)]), including the nature of the amendment, the reasons for the lateness of the application, the consequential work required, and the strength of the case (Quah Su-Ling at [38 b), d), f)]).
The principles that apply in relation to late amendments were also considered more recently in Invest Bank PSC v El-Husseini and Others [2024] EWHC 1235 (Comm) per Bryan J. Having cited paragraph [19] of CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd (No. 3) he continued:
[49] Accordingly, in considering the impact on a trial fixture, the Court is concerned not just with the ability to complete all the necessary steps consequential on the amendments, but also with the impact on the overall ability to prepare for the trial. Where there would be additional pressure on a party in the run-up to trial, that is a substantial reason why amendments should not be permitted. In this regard in Donovan v Grainmarket [2019] EWHC 1023 (QB) at [27], it was stated that the need to revisit previous trial steps “in conjunction with the intense preparation already required even if there is no amendment” constituted “substantial prejudice” (see also ADVA v Optron at [47]). The amendments were, in that case, refused …
[50] There is a particular onus on a party seeking to make a very late amendment to ensure that it satisfies to the full the requirements of a proper pleading. As was stated in Swain Mason v Mills & Reeve [2011] 1 W.L.R. 2735 at [73]: “...if a very late amendment is to be made, it is a matter of obligation on the party amending to put forward an amended text which itself satisfies to the full the requirements of proper pleading. It should not be acceptable for the party to say that deficiencies in the pleading can be made good from the evidence to be adduced in due course, or by way of further information if requested, or as volunteered without any request. The opponent must know from the moment that the amendment is made what is the amended case that he has to meet, with as much clarity and detail as he is entitled to under the rules” (emphasis added). In that case, the Court refused permission to amend because the pleading was “not in proper form”; which was said by the Court to be “fatal” (at [107]). See also Galliford at [16], referring approvingly to Swain-Mason: “It was also stressed that a late amendment cannot be insufficient or deficient”.
[51] In Rijckaert v El-Khouri [2023] EWHC 409 (KB) it was stated by Soole J (at [20]): “It is an elementary principle that the later the amendment, the greater the need for particularity… it is not for the Defendants to seek further particulars. At every stage a properly pleaded case must be set out; and particularly so when the application is made at this very late date”. A similar point was made in Wani LLP v Royal Bank of Scotland [2015] EWHC 1181 (Ch) at [62]. The reason for this is obvious. Quite apart from the need for matters to be properly and sufficiently pleaded in the first place, any need for further elucidation would itself give rise to (further) delay, and actual or potential prejudice to the other party. That a defective pleading can be cured later is misguided in the case of late amendments.
[52] The existence or absence of a good explanation for any delay is one of the factors to be considered, although there is no rule that the absence of a good explanation is fatal (see Vilca at [29] and Scipion at [77]). Where “a very late amendment” is sought (i.e. “one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost”), the correct approach is not that the amendment ought in general be allowed so that the real dispute can be adjudicated upon; instead, a heavy burden lies on a party seeking a very late amendment to justify it and to show the strength of the new case and why justice requires it (see Quah at [38(b)-(c)] and Swain-Mason v Mills & Reeve LLP [2011] 1 WLR 2735 at [72]).
[53] Even if the situation is one which would not result in the adjournment of the trial if the amendment was allowed, an amendment may still be refused merely because it is late, in the sense that it could have been advanced before, or requires the revisiting of pre-trial concepts. It is for this reason that lateness is a relative concept. …
[54] It is always a question of striking a balance between injustice to the applicant if the amendment is refused and injustice to the opposing party if it is permitted (Swain-Mason at [72]; Quah at [38(a)].) Prejudice to the amending party will include the inability to advance its amended case (see CIP at [19(f)] as quoted above). However any prejudice caused to the claimant by a refusal of leave may be “diluted” if the amendment is late because the claimant then only has itself to blame (CIP at [41]). Prejudice to the opposing party will include being “mucked around”, disruption/additional pressure before trial, or the duplication of cost and effort (see CIP at [19(e)] and Wani at [62]). As noted in Vilca (at [26]) there is a “broad spectrum of impacts” which “may fall somewhere between the negligible to the devastating”.
Discussion
It was said by Mr. Hicks on W’s behalf that by her draft Amended Points of Claim W principally sought:
to clarify the trust structure as between S, H and W;
to set out fully W’s case in respect of detrimental reliance in consequence of her dealings with her parents in connection with DC; and
to address properly the effect of the Deed of Confirmation and Indemnity (“DCI”) dated 24th July 2019 (and which it is said W signed when on holiday in Country B on 7th August 2019), whether or not W signed it, including as between S and H, and in light of the rules of equity engaged by the arrangements purportedly made thereby.
Mr. Hicks was reluctant to accept (when I asked him) that any of his proposed amendments were severable. Mr. Weale and Ms. Phipps considered that they were not. I consider this to be correct and the amendments therefore stand or fall together.
I agree with Ms. Phipps that approaching this issue by considering the four factors as set out in Andrew Brown and Others v Innovatorone PLC and Others by Hamblen J is an appropriate way to structure consideration of W’s application as it allows all the principles above to be considered under four broad headings and in a logical way.
The history as regards the amendment and the explanation as to why it is being made late
W has had the benefit of representation from both leading (and junior) counsel and also specialist Chancery counsel at all material times throughout these proceedings. Her original Points of Claim were settled by counsel of 2012 Call. As I understand it they were only replaced by Mr. Hicks on account of parental leave. But for that parental leave, they would presumably have been retained by W for the preliminary issue hearing (and W has not suggested otherwise).
It cannot be said that W did not have sufficient time to formulate her case. She had engaged her previous specialist counsel as early as October 2024, a full five months before service of her original pleading. As was recorded at paragraph 18 to my order of 2nd April 2025, W’s explanation at that hearing as to why she did not give the required seven days’ notice to H or S of her application to join S as Second Respondent was that W “had not finished drafting her draft particulars of claim” which were served on S with the application notice of 28th March 2025. At paragraph 19 my view is recorded that the seven days’ notice could and should have been given but on the basis that S’s then counsel was in attendance I directed that service of the joinder application be abridged. I directed that the finalised Points of Claim be filed and served by 4th April 2025. This is now over nine months ago.
It may in fact be said that W has been aware of relevant matters for even longer than this given that S issued possession proceedings against the occupants of DC in November 2024 (having previously served a Notice to Quit on 4th September 2024).
Following the filing of Defences by H and S, pleadings have been closed since 2nd May 2025 (i.e. over eight months ago). I do not know when W’s previous counsel was last formally instructed but I know they attended the private FDR Appointment heard by Sir Philip Moor on 2nd – 3rd June 2025. At the very least therefore they were involved in the case for some nine months including for at least a month beyond when pleadings closed.
Directions for trial were given on 22nd July 2025 which included provision for disclosure to be completed by 22nd August 2025, for W to adduce six witness statements and for the trial to be listed for five days (on the basis that this was the time necessary to consider fairly and properly the issues as then pleaded).
All of this history weighs in the balance against the permission being granted.
The only explanation given on W’s behalf in her application notice of 19th December 2025 for the proposed amendments (there is none in the two supporting statements) and why it was being made late is that there has been a change of counsel. The application notice stated “[f]ollowing the instruction of new Chancery Counsel, [W] seeks permission to amend her Points of Claim to fully and comprehensively plead her case, in particular regarding the invalidity or unenforceability of the Deed of Confirmation, in accordance with the amended Points of Claim, attached”.
It was common ground before me that the instruction of new counsel does not in itself constitute a good reason for either a late or very late amendment. In Quah Su-Ling Carr J stated at [47] in respect of the justification for a late amendment “At most they would appear to arise out of a fresh examination of possible arguments by fresh counsel. This is precisely the sort of reason that does not find favour with the courts (see Worldwide Corp Ltd [[CA Transcript No 1835] 2 December 1988]).” Similar comments were made in Donovan and Another v Grainmarket Asset Management LLP [2019] EWHC 1023 (QB) per Martin Griffiths QC (sitting as a Deputy High Court Judge) at [28]. Likewise as was made clear (by reference to earlier authority including Quah Su-Ling) in Ferand Business Corporation v Maritime Investment Holdings Ltd and Another [2020] EWHC 2665 (Comm) per HHJ Pelling QC (sitting as a High Court Judge) at [6(h)] “it is not open to the applying party to rely upon the instruction of new counsel as a good explanation for the late or very late amendments…”.HHJ Pelling QC’s summary of the principles were subsequently described in Frangou v Frangos [2022] EWHC 3031 (Comm) per Mr. Stephen Houseman KC (sitting as a High Court Judge)at [15] as “codified common sense with an emphasis on pragmatic procedural fairness and responsibility”.
I agree with Mr. Weale that the position is a fortiori in the present case in circumstances where W has had the benefit of expert specialist counsel from the outset.
This explanation for the amendment and why it is being made late – and which is the only one in the application notice and supporting evidence - is therefore not a good one.
Mr. Hicks submitted that the amendments were necessary as otherwise there would be a potential lacuna at final hearing: namely that as pleaded there were difficulties in me reaching a comprehensive and sufficient conclusion if I found that (i) there was a trust structure (being either (a) an express trust between S and W; or (b) a resulting trust between S and H and a common intention sub-trust between H and W); and (ii) W had signed the DCI - and that she had thereby gratuitously surrendered her beneficial interest in DC – but had signed it not knowingly but rather unwittingly and unaware of the consequences. There are rules of equity applicable to a purported denial of the trusts of which a person is trustee. Further, equity regards with suspicion transactions whereby a beneficiary is persuaded into a surrender of their interest to a trustee without their full, free and informed consent (a principle which stems from the fiduciary relationship between a trustee and beneficiary – see for example In Re Pauling’s Settlement Trusts [1962] 1 WLR 86). It was said that without the pleading addressing the legal effect of such a surrender to a trustee there was a risk of the court reaching a conclusion that was unsustainable in law and one that the courts of equity would say could not stand. It was therefore fundamental that this point be addressed.
Although this submission was superficially attractive I am not satisfied that in reality there is a lacuna in W’s case. In her original Points of Claim under the heading “Forgery” it is said (at paragraph 20) that “W did not initial or sign the Deed of Confirmation on 24 July 2019, or at all, and the initials and signatures which purport to be hers are forgeries” and (at paragraph 21)that “In the premises, W is not bound by the terms of the Deed of Confirmation and she has remained at all material times the beneficial owner of [DC]”. This is a positive case on forgery. If I find W’s case to be true this will have certain consequences. Likewise if I find W’s case to be untrue. The position is little different (as Mr. Weale submitted) to an issue of whether or not someone signed a contract where different legal consequences flow depending on the finding. I therefore consider this is not an amendment required to plug a legal lacuna but a free-standing amendment to pursue a case of undue influence (as set out further below).
I also struggle with this submission given that in June 2025 W instructed her solicitors (informally via a direct judicial email) to apply for permission to write to the county court where the possession proceedings had been issued in the following terms:
A central issue in the dispute over [DC] is whether the Deed of Confirmation and Indemnity, dated 24 July 2019, bears [W’s] genuine signature or is a forgery. If the signature is hers, it is common ground that this would determine the beneficial interest.” (emphasis added).
When I raised this with Mr. Hicks he said this was a circular argument. I do not agree.
B. The prejudice which will be caused to the applicant if the amendment is refused
I accept that there will be inevitable prejudice caused to W if the amendment is refused in the sense that she will not be able to advance all the legal arguments and factual evidence that she wishes.
However this must be looked at in the context that (i) W has pleaded a legally recognisable claim covering various cumulative (or alternate) legal bases claiming beneficial title on the basis that (a) S holds DC on resulting trust for H; (b) H holds it in turn on a common intention constructive trust for W; (c) alternatively W has an equity by way of proprietary estoppel; and (d) W’s signature on the DCI which in simple terms purports to deny that she had any beneficial interest in assets registered in the name of other family members, including S, was forged; and (ii) all the additional legal arguments and evidence that she seeks to adduce were available to her in April 2025 when she initially served her Points of Claim.
It was said by Mr. Weale that W’s case in respect of DC has always been (to put it at its lowest) ambitious and difficult to understand and that W has been driven to assert an elaborate case based on a combination of undocumented trusts arising as between H and S on the one hand and H and W on the other. It was also said that W’s case has become more difficult in light of the SJE report of Ms. Elizabeth Briggs dated 27th May 2025 (and her subsequent replies to written questions) in respect of W’s purported signature and initials on the DCI by which W (and other family members) disclaimed any interest in various assets including DC. Against the background of what Mr. Weale described as “unfavourable conclusions” in the SJE report, he submitted that W has concluded her interests were best served by derailing the current trial and/or by introducing yet further complexity and allegations of the utmost gravity (including to the effect that, insofar as she did sign the DCI, it was procured by undue influence against her).
I do not comment on these submissions save to record they form no part of my consideration and determination of W’s application. These are matters for the preliminary issue hearing.
I should also record for completeness that Mr. Hicks did not submit that this was one of those cases where the person in the position of claimant might be said to be “in the dark” and where the Financial Remedies Court might be said to be more willing to entertain amendments to a statement of case at a later stage than would be entertained in equivalent civil proceedings. An example of this is SM v MM and Others [2024] EWFC 463 in which His Honour Judge Hess (sitting as a Deputy High Court Judge) allowed a late amendment during the course of a final hearing as follows:
[95] Mr Pocock wishes to amend the pleading … Mr Buttimore and Mr Wagstaffe have objected to this proposed amendment, but I have decided to allow it. I accept Mr Pocock’s submission that, for the wife trying from the darkness to work out what the husband has been doing, this has been a developing picture and she should not be penalised for wishing to hone her case in the light of developing evidence …
I understand an application for permission to appeal this decision was refused on paper (and an application for permission to appeal different issues was likewise refused following a hearing (Michael v Michael [2025] EWCA Civ 1668)).
Mr. Hicks was right in my view not to make such a submission. W is not “in the dark” in relation to any aspect of the preliminary issue (in contrast to (she would submit) in relation to the financial remedies application more widely) as is shown by the fact that it is not suggested that the additional legal arguments and evidence that W seeks to adduce were unavailable to her in April 2025 when she initially served her Points of Claim.
I therefore agree with Mr. Weale and Ms. Phipps that any prejudice that W suffers (which is tempered by the fact she has already pleaded several recognisable claims) is entirely self-inflicted. Her proposed amendments could and should have been pleaded at the outset. Again, this militates against the grant of the permission sought.
C. The prejudice which will be caused to the resisting party if the amendment is allowed
The proposed amendments sought by W are significant in their length. They involve more than trebling the length of W’s Points of Claim by extending it from a little over seven pages to 22 pages (on Ms. Phipps’ assessment the additional pleading amounts to 70% of the new document or 5,151 of 7,360 of the word count).
Moreover, the proposed amendments are significant in their scope. They involve extensive changes to W’s factual case (as well as her legal case) – as shown by the two witness statements in support being 23 pages with 105 pages of exhibits - as follows:
a new claim (at paragraph 13A.1-3) of alleged detrimental reliance on the part of W’s mother and W’s late father based on W having “exposed herself to a claim by way of a common intention constructive sub-trust, alternatively an equity by proprietary estoppel by [W’s mother], which W cannot honour and will have to be met out of her other resources to W’s own prejudice unless H’s promise of the beneficial interestin [DC] is itself honoured.” This claim is premised on an undocumented trust arrangement having arisen between W and her own parents in respect of W’s putative interest;
a new claim (at paragraph 13A.4) that W owes a “cultural obligation” to provide for her parents (and in particular her mother) which was to be satisfied, in part, by her providing them with accommodation for life at DC and which W will have to meet out of her other resources to her own prejudice unless H’s promise of the beneficial interest in DC is honoured;
a new claim (at paragraphs 19B – D) that the DCI either (i) transferred H’s beneficial interest subject to W’s sub-trust to S (if binding on H); (ii) amounted to a breach of trust by S against H as a denial by S of H’s beneficial interest (if the effect was not to transfer H’s interest to S); (iii) amounted to a breach of trust by H against W; (iv) is only explicable on the basis of undue influence by S of H; or (v) was a breach of the fair-dealing rule by S, and W is therefore entitled to seek its recission;
in the alternative to c, a new claim at (paragraph 19E) that H’s entry into the DCI amounted to a breach of trust or fiduciary duty and W is entitled to either follow the beneficial interest into S’s hands, or alternatively is entitled to trace her interest into “any asset in [H’s] name transferred or released to him by virtue of the [DCI]” by way either of an account or equitable compensation;
a new claim (at paragraphs 21A - 21F) in the alternative that if, contrary to her case, W did sign the DCI, this was based on alleged undue influence by each of H and S (independently of one another) which would entitle her to equitable recission of the DCI:
as against S, it is alleged that she “stood in a relationship of influence” over W as trustee for W. It is further alleged that S committed a breach of trust merely by signing the DCI, notwithstanding it was procured and arranged by H. It is further alleged that S knew or had “constructive notice” of undue influence by H against W;
as against H, it is alleged that he exercised actual undue influence or, alternatively, that he abused what is alleged to be trust and confidence “reposed in him” by W. In support of the latter allegation, it alleged that “At all material times, W reposed trust and confidence in H in the management of their financial affairs”; and
W’s case on undue influence appears to be premised (at least in part) on the allegation that W did not understand the terms of DCI or its effect.
I agree with Mr. Weale and Ms. Phipps that:
the proposed amendments give rise to substantial factual enquiries (i) as to administration of H and W’s financial affairs over the entire course of their relationship (which spanned close on two decades) and the nature of that relationship. This is clear from W’s supporting witness statement which seeks (at paragraph 6) to bring into issue H’s conduct “from the very start of our relationship” and (at paragraph 7) states H would often “punish” W if he considered she had not behaved appropriately and she also refers (as she has done previously) to H’s “long term abuse, coercive and controlling behaviour” (which is strongly contested); and (ii) involving representations made to, and the intention and understanding of, W’s parents in respect of their business and housing over many years;
S and H would require significant time to investigate the new allegations and consider what additional evidence (including from other witnesses) they would wish to adduce, in addition to responding to the substantial further evidence which W now seeks to rely on;
importantly in this context W’s evidence to date was that she was present at the dinner when the DCI was said to have been signed but she did not sign the same. Her alternative case, that she did sign it but it was not explained to her, would clearly require H and S to obtain additional witness evidence in relation to this dinner;
neither S nor H can reasonably be expected to plead to the new allegations before they have had had a reasonable opportunity to investigate them;
the new allegations will inevitably require substantial further disclosure; and
the new allegations in respect of W owing a “cultural obligation” to her parents may well require expert evidence.
Mr. Hicks submitted that the proposed amendments and W’s reliance on the additional evidence advanced “should not impose any undue burden on the Respondents” or jeopardise the trial date. This was because it was said (i) the amendments principally advance points of law arising from facts already in issue and in evidence, or which cannot seriously be disputed, and which can be largely addressed in submissions; and (ii) it is not anticipated that the key additional factual points arising should necessitate any significant evidence in response or generate significant additional cross-examination. This submission is unsustainable in light of paragraph 65 above.
The consequence of allowing these amendments would mean (if the existing hearing dates in six weeks’ time were to be retained) that there could not be a fair hearing. It would be grossly unjust for me to impose a compressed timetable on H and S to address the new allegations in advance of the trial. To do so would compromise their ability to prepare for the trial for which the parties’ legal representatives are currently in the midst of preparing for independently of the amendment application. Indeed, the trial bundle index is due to be produced on 12th January 2026 (pursuant to paragraph 42.4 of my order dated 22nd July 2025), just one clear day after the hearing on 8th January 2026 hearing and finalised on 2nd February 2026 (a little over three weeks’ time). I expect these deadlines to be met.
Further, the reality is that there is simply insufficient time to enable H and S a fair and reasonable opportunity to investigate and address the new allegations in the next six weeks. As Mr. Weale and Ms. Phipps both observed, W has done her work (amending her pleadings and preparing her witness evidence in relation thereto). S and H have all this work to do. W’s proposed directions order provided for 21 days for S and H to file their Amended Defences (which is seven days fewer than the original timetable for pleadings directed on 2nd April 2025). H’s retained Chancery counsel, Ms. Charlotte Beynon, is engaged in a trial in Jersey until 23rd January 2026 and he would therefore have to find alternative counsel. This increases the unfairness.
The reality is that is inconceivable that the steps at paragraph 65 above can be taken in advance of trial.
In this context, although every case turns on its own facts and lateness is a relative concept, I agree with Mr. Weale that there is an analogy with Wani LLP v The Royal Bank of Scotland Plc and Another [2015] EWHC 1181 (Ch) per Henderson J where the (unsuccessful) application to amend was made about eight weeks (and heard about seven weeks) before a trial listed with a time estimate of five days.
Further, the time-estimate for the preliminary issue hearing was set by me on 22nd July 2025 based on the then existing pleadings which had closed. I had given permission to H to file a witness statement from the alleged witness to W’s signature on the DCI on 2nd April 2025. On 22nd July 2025 I gave permission for W to file witness statements from six people (including herself) and H two people (including himself). Taking account of S that is ten witnesses. These witness statements total 83 pages and 76 pages of exhibits. W also seeks to call the SJE handwriting expert to give oral evidence. There will therefore be ten witnesses of fact and one expert witness to give oral evidence. I was told on 8th January 2026 that one of W’s witnesses (her mother) would require an interpreter which will inevitably lengthen the time it takes for her to give evidence. On 22nd July 2025 I also gave permission for the hearing bundle to contain upto 700 pages and I acceded at the hearing on 8th January 2026 to an application on W’s behalf to extend this further and have now said it may contain upto 2,500 pages (taking the view (which I know is not shared by all) that bundle limits are less important than when 350 pages was the maximum number of pages that could comfortably be included in one paper bundle).
It is clear from the above (and was common ground) that the existing timetable will be very tight even if (as is inevitable) I have little time allocated for pre-reading and I reserve judgment.
On no sensible analysis can it be said that this time-estimate is sufficient to deal with W’s substantially expanded case (as summarised at paragraph 64 above). This situation would not be ameliorated by (for example as Mr. Hicks suggested) (i) longer and fuller skeleton arguments than might usually be the case (it was suggested that 30 pages would be prudent); and (ii) closing submissions being followed by a written note, insofar as that would assist.
The preliminary issue hearing would therefore have to be vacated and relisted with a more realistic time estimate of (at least) eight days. Mr. Hicks accepted (as he had to) to that the amendments “come relatively late in the day”. I consider this to be something of an understatement. This is therefore properly to be considered a “very late” application for amendment.
All of the above again weighs in the balance against the exercise of my discretion.
D. Whether the text of the amendment is satisfactory in terms of clarity and particularity
I do not consider that the text of the amendments are satisfactory in terms of clarity and particularity. I agree with Ms. Phipps’ description that they “defy easy summary and are legally abstruse (to put it mildly)”. It is inevitable that they would require further elucidation by way of requests for further and better particulars.
I also consider there is difficulty in W now pleading a case in the potential alternative to the one that she has hitherto maintained in relation to whether or not she signed the DCI. She has previously said unequivocally that she did not sign it. This was her position in the original Points of Claim, in a statement dated 21st May 2025 and in a statement of 9th September 2025. She now says that insofar as she did sign the DCI, it was procured by undue influence against her with these allegations made against each of H and S independently. As to the latter it is specifically alleged that “at all material times [S] knew that W’s signature was procured by H’s undue influence”. Therefore W now seeks to make serious allegations as to S’s knowledge surrounding W’s signature on the DCI whilst at the same time maintaining a case that she never signed that document.
In this context I raised with counsel A v A where Munby J stated [emphasis added]:
[16] I draw attention to these various different types of case in part to make the point that conceptually they proceed on very different – and in some cases completely inconsistent – bases. There is, I suppose, no difficulty, other than possible forensic embarrassment, in pleading inconsistent cases in the alternative, but it is important to recognise that due to their analytical inconsistency many of these doctrines can operate only as alternatives. I shall return to this point below.
[25] In the present case, Mr Moor has now nailed his colours firmly to the mast. He relies upon two, and only two, of the principles or doctrines to which I have referred. First, he relies upon the doctrine of sham. Secondly, he says that this is a case where the principle in Thomas v Thomas [1995] 2 FLR 668 applies.
[26] True it is that in the document dated 15 December 2005 in which the wife's case is set out, the allegation is repeated that 'as a matter of fact, [the husband] controls HDC and can do with it as he wishes', but it is clear, not least from the document itself, that this is intended as no more than an evocation of the principle in Thomas v Thomas, no doubt on the basis that if, in accordance with Thomas v Thomas, the shares in HDC held by the trusts are treated as being available to the husband, he will on this approach either own or have access to 77% of the shares. What is clear is that it is not being asserted by the wife that the corporate veil should be pierced – indeed, I have not been taken to any of the extensive case-law on that topic. This is an important point to which I will have to return.
[27] Mr Moor is, of course, entitled to put his case in this way, but it must be appreciated that the two cases he seeks to make are quite inconsistent with each other.The first proceeds explicitly on the basis that the trusts are both shams. The second proceeds on the basis that the trusts are not shams, in other words that they are genuine.
I asked counsel whether these comments should be taken a meaning that a party may always be permitted to plead two cases that are inconsistent with one another. Having heard argument on this point, my answer to this is that ‘it depends’. For example in A v A where W’s primary case was sham, if this did not succeed then there was a valid trust which allowed W to pursue her alternative case based on so-called Thomas v Thomas principles. In other words there was an evidential foundation for W’s alternative case if the court accepted H’s and the intervener’s factual case. However in this case W is not (for want of a better term) ‘piggy-backing’ a counter-factual based on H’s and S’s case (were I to accept it) but is making in the alternative a free-standing case of actual undue influence with new allegations. In my view it is difficult (if not impossible) to run these cases in the alternative.
All of the above once again weighs in the balance against the exercise of my discretion.
Conclusion
It is clear from the authorities that no single factor is determinative one way or the other. I must weigh them all in their proper context in the exercise of my discretion.
Having done so the only proper conclusion is that the amendment application must be dismissed. It is beyond clear that any prejudice that W may suffer from a refusal to grant her application is outweighed by the prejudice H and S will suffer in responding to her amendments so late in the day, let alone the almost inevitable consequence of postponement to the hearing date.
My reasons for having reached this conclusion can be summarised as follows:
the proposed amendments are properly characterised as being “very late” as they will all but inevitably cause the preliminary issue fixture to be broken and relisted. This would in turn imperil the listing of the final hearing in June 2026. In those circumstances, it is incumbent on W to provide a good explanation for the lateness of the amendments;
no good explanation has been put forward. The only reason given in the application notice (there is none in W’s statement of 19th December 2025) is that the proposed amendments are “Following the instruction of new Chancery Counsel”. The authorities make clear that this is not a good reason for a late amendment;
I do not accept that the pleadings as they are mean that there may be a legal lacuna at final hearing dependent on the factual conclusions that I reach;
the factual matters which W now seeks to plead are matters which W and her existing witnesses have been aware of from the outset. There is no relevant change of circumstance which justifies the introduction of such fresh matters at this stage;
whilst there will be prejudice to W in not being able to advance her case as she would wish this prejudice is entirely of her own making. Further she remains able to put forward a case on several cumulative and/or alternative grounds;
in the absence of any good reason, the prejudice which H and S would inevitably suffer as a result of the proposed very late amendments causes the balance to be loaded heavily against the grant of permission;
the above matters are compounded by the fact that the proposed amendments are very significant in scope insofar as they bring into issue the administration of H and W’s affairs and conduct over their entire relationship;
there will be a significant duplication of costs and effort for S and H in revisiting significant steps in the litigation (pleadings, witness statements and in all probability further disclosure). There may also be the need for further expert evidence;
on no fair reading can it be said that W’s new case has been pleaded with “clarity” or “particularity”. Further and better particulars would inevitably be required; and
these proceedings have already consumed very substantial court resources and legal costs. Particularly having regard to the value of DC, it would be disproportionate to permit the proposed amendments (given both the disruption and further costs which they will inevitably generate).
It is also notable (although I accept this would be an insufficient answer in any event) that W has not agreed to meet any of H or S’s costs caused by the proposed amendments in the usual way, or the costs which would be thrown away as a result of the preliminary issue hearing being vacated and relisted. Accordingly, responding to the amendments will require H and S to incur very substantial further costs without any compensation from W.
Further, I must seek to give effect to the overriding objective set out in FPR 2010 r1.1 – of enabling the court to deal with cases justly having regard to any welfare issues involved - when I exercise any power given to me by the FPR 2010 or interpret any rule. The fact that I am considering a rule under CPR 1998 does not change this given it has its own overriding objective in very similar terms and on which the one in the FPR 2010 was modelled. The overriding objective states that dealing with a case justly includes, so far as is practicable (i) ensuring that it is dealt with expeditiously and fairly; (ii) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues; (iii) ensuring that the parties are on an equal footing; (iv) saving expense; and (v) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases. I agree with Ms. Phipps that every aspect of the overriding objective militates against acceding to W’s application.
Mr. Hicks placed particular reliance on the principle drawn from CMN Estates at [77] that the general rule is that except in the case of “very late” amendments, unless the claim has no real prospect of success, the merits should be determined at the full trial. I have already said I consider this to be a case of “very late” amendments. However, if I am wrong about this, I would distinguish CNM Estates on the basis that as is stated at [68] the first instance judge had noted that “the trial is still in the dim and distant future” and that “disclosure has not yet taken place”. Further, the amendments sought were specifically occasioned by a preliminary issue judgment. This is far from the facts of the present case.
I should record for completeness that Mr. Hicks complained that Mr. Weale had little or nothing to say about the merits of W’s proposed amended case and Mr. Weale complained that Mr. Hicks had little or nothing to say about the legal principles that apply to late amendments. However as Mr. Weale stated in his position statement, S does not accept that W’s new case has a real prospect of success. However, in view of the limited time available at the hearing, the fact that S had had no fair opportunity to file evidence in response (and could not reasonably have been expected to do so in the time available), and that the legal principles relating to late amendments were (he said) determinative of the application, he had not addressed the substantive issues in any detail. For present purposes, it sufficed he said to note that W’s new case of undue influence was (at least) “difficult”, not least because the suggestion that H exerted control over all relevant assets is inconsistent with the notion that H intended to make an outright gift of a substantial property to W.
I agree with Mr. Weale that this is not a borderline case. Any other conclusion would represent an error of law.
The preliminary issue hearing shall therefore proceed on the basis of the current pleadings. It follows that W should not be permitted to rely on the two further substantive witness statements (for which no permission has been given) which were adduced solely for the purpose of supporting the new allegations W sought to make.
Addendum
I circulated this judgment in draft to the parties on 12th January 2026. I have made a small number of typographical corrections as sought by counsel in their respective responses. No party raised any issues of proposed clarification or amplification.
In my email of 12th January 2026 and having considered the Practice Guidance: Transparency in the Family Courts: Publication of Judgments issued by the President of the Family Division on 19th June 2024 I gave notice of my provisional intention to publish this judgment so that the parties had the opportunity to make representations in relation thereto in accordance with paragraph 3.13 thereof. No party opposed publication in their respective responses.
Having carried out the “balancing exercise” set out in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 (and summarised in Re J (A Child) [2014] 1 FLR 523 per Sir James Munby P) which has regard to the interests of the parties and the public as protected by ECHR Articles 6, 8 and 10, considered in the particular circumstances of this individual case, this judgment shall (as previously) be published on an anonymised basis. I have made a few minor amendments to the draft judgment as requested by Ms. Phipps to that end.
That is my judgment.
