Advinia Care Homes Ltd v BUPA Care Homes Investments (Holdings) Ltd & Ors

This is an application by the Claimant, Advinia Care Homes Limited, hereafter “Advinia”, and the Third Party, Advinia Health Care Limited, “AHC”, which together will be referred to as “the

The Defendants say that if any amendments are permitted at this stage, there might have to be an adjournment of the trial. Clearly it would be most undesirable for this trial date to be lost. It would not be conducive to the administration of justice and it would mean that there may not be a trial for over a year, well into 2022, when the parties are now in a position in one way or another for the already scheduled trial.

There is a complicated background to these proceedings and this application but I have had the advantage of having heard in June 2020 as a deputy judge of the High Court a substantial application, again brought by the Advinia Parties, for summary judgment and interim payment and various other relief. I dismissed those applications and my judgment is reported under neutral citation number [2020] EWHC 1563 (Ch). I adopt the defined terms and abbreviations I used in that judgment. I set out in that judgment some of the background to the dispute and, insofar as

The Defendant companies are all members of the Bupa group, the well-known global health insurance and health care provider. They are represented before me today by Mr Edward Cumming

The case concerns a number of transactions between the Advinia Parties and the Defendants whereby the Defendants sold certain care homes in England and Scotland and related businesses to AHC by the purchase of the shares in Advinia. Advinia, when part of the Bupa group, was called

In the Particulars of Claim Advinia was essentially claiming under the BTAs. It alleged that under the BTAs certain sums of money received by the Defendants were held on trust for Advinia, and that there was no right to set-off against such sums any monies owing by Advinia under the BTAs or any of the other agreements entered into at the time, such as the Transitional Services Agreement whereby Bupa continued to provide services such as payroll administration after completion.

That was also the basis of an ex parte on short notice application made by Advinia to Mr Justice Nugee, as he then was, on 23 October 2018. On 24 October Mr Justice Nugee granted the injunction sought, requiring the Defendants to pay the outstanding payroll liability, if necessary out of their own funds, but requiring so-called trust money to be paid into court thereafter by way of fortification for Advinia's cross-undertaking in damages.

This was how the proceedings started. When it came to me in June 2020, Advinia was essentially seeking summary judgment on its trust money argument and was relying on certain terms of the BTA to say that there could be no set-off against the requirement of the First Defendant to pay over the trust money. While I rejected their case on this, the way it was put will be important to bear in mind in considering some of the amendments for which permission is sought.

The other part of the claim that needs to be explained shortly at this stage is the Additional Claim brought by the First Defendant against AHC. This concerns the Completion Accounts under the SPA. One of the issues concerns whether the draft Completion Accounts served by the First Defendant have, under the terms of the SPA, become final and binding. AHC says that they have not for various reasons, and it has raised a Counterclaim against the First Defendant, raising claims for breach of warranty and misrepresentation in relation to the Scottish care homes.

This has become known as the “wet rooms issue” and has arisen because of the Scottish care inspectorate, “SCI”, the regulator of care homes in Scotland, requiring as a condition of the transfer that en suite shower wet rooms have to be installed in most of the Scottish care homes. AHC says that it relied on the fact that there had been representations to it by Bupa representatives that there would be no significant capital expenditure to the Scottish care homes, and the wet rooms issue had not been disclosed to it before the SPA completed. AHC is seeking to add a new misrepresentation claim to its existing one in the proposed amendments.

Before dealing with some more of the procedural detail and looking at the amendments more closely, it is important for me to put this in context. There have been delays in the progression of this case and both sides blame each other, but also the Advinia Parties do hold their hands up and admit that they have struggled to keep to the timetable in certain respects. As these parties know better than most, the COVID-19 pandemic has caused incredible stresses and strains on the care home sector. Throughout the course of this year, as has been carefully explained by Mr Mark Cash, Advinia's CEO, most of their management time has inevitably had to be spent on dealing with the impact of the pandemic on their care homes. That has made it difficult at times for detailed instructions to be given to their lawyers and the delays have been caused as a result. Bupa face similar difficulties, but they are a far larger organisation. In fairness, Bupa accept that it has been difficult for all concerned. The focus however must now be on making sure that a fair trial can be heard in February 2021.

Whilst I appreciate the importance of this litigation to both parties and the fact that everything seems to be being fought to the extreme within it, I do think that the documentation produced for the purposes of this application was quite disproportionate, both in terms of the lengthy correspondence between the parties and the unnecessarily long witness statement, in particular from Mr Jeens of Slaughter and May, which was 30 pages long and 87 paragraphs. Not only has this application been brought on in the vacation shortly before Christmas, but also the court has been burdened with having to read a mountain of material to deal with something that should probably have been capable of agreement by the parties out of court. Of course, I have read carefully all such material and listened intently to the submissions. My decision will be elaborated on during the course of this judgment, but I do urge the parties to adopt a more proportionate approach to this litigation. Even with knowing something about this case, it took far longer than the two hours both sides suggested would be enough for pre-reading.

So I turn to the proposed amendments. Even in the short space of time since the amendments were first proposed, they have evolved further such that some of those originally proposed are now not being pursued, some have been widened in the last week or so and some are not opposed by the Defendants. I will try and summarise where we are:

Perhaps predictably, Mr Hubbard claimed that while tight, the amendments will not unduly prejudice the Defendants or their preparation for trial, while Mr Cumming emphasised that it will cause severe disruption to their trial preparation, indeed that it is not possible fairly to proceed with the trial if the amendments are allowed. It is curious that the Defendants vehemently opposed the hearing of this application on an expedited basis, claiming it was not so urgent, whereas they now oppose these amendments on the basis that they cannot be ready for the trial in February. Mr Hubbard says that the Defendants have completely exaggerated the consequential effects of the proposed amendments.

As is usual in these applications, it is necessary to find the right balance so as to ensure that both parties are treated justly and fairly, that a trial should only go ahead if it can fairly do so, and to also bear in mind the effect on the proper administration of justice and other court users, something that we have all become acutely aware of during the pandemic.

Before looking at the disputed amendments, it is necessary to set out some of the recent procedural background.

On 7 October Wordley Partnership wrote to Slaughter and May requesting an explanation of when and how the First Defendant had "assumed or succeeded to BCH Limited's rights and obligations under the English BTA". In the same letter, Wordley Partnership raised various questions regarding the Opening Balance Liabilities, a term that I defined in my June judgment.

On 13 October Wordley Partnership sent additional requests for complex financial information concerning the Opening Balance Liabilities. Then on 14 October the Advinia Parties served the

By a letter dated 29 October 2020 Slaughter and May set out the Defendants' objections to complying with the October RFI and emphasised that a request for further information in relation to an issue which is not in dispute is not permitted and is therefore improper. Furthermore, the witness evidence had now been served for the trial, and so the information sought in the October RFI was not necessary for such a purpose.

On 2 November 2020 for the first time Advinia stated that it would be seeking to amend its Amended Reply dated 21 May 2020 to put the First Defendant to proof as to whether and how it succeeded to BCH's rights and obligations under the English BTA.

On 11 November 2020 supplemental disclosure was given by both parties. As part of Bupa's supplemental disclosure were documents in relation to the Disclosure Review Document disclosure issue 9, which was essentially the wet rooms issue, including in particular communications between

Factual evidence was exchanged on 23 October 2020 and reply factual evidence was exchanged on

On 13 November 2020, Slaughter and May wrote to the Wordley Partnership to say that the Defendants would not, without first seeing a draft amended pleading from Advinia, answer the October RFI. On 16 November 2020 Advinia served Bupa with draft Amended Particulars of Claim and by letter of 20 November 2020 the Defendants refused to consent to the same.

On 26 November 2020 Wordley Partnership served on the Defendants a draft application for permission to amend the Particulars of Claim and to re-amend AHC's Amended Defence and Counterclaim. There was also a witness statement accompanying that application from Ms Alison Proctor.

The amendments went far wider than the draft Particulars of Claim served on 16 November, which was limited to the Succession Issue. In the letter accompanying those documents, the Wordley Partnership sought the Defendants' dates to avoid, a time estimate, and agreement to the application being listed before a Master on an expedited basis.

On 29 November 2020 a long letter from Slaughter and May set out the Defendants' objections to the proposed amendments and consented to those that I have identified before, namely the amendments to the Particulars of Claim in relation to the accounting date and the amended background segment to the wet rooms issue in the Amended Defence and Counterclaim. This was also confirmed in the letter of 2 December 2020 from Slaughter and May. Slaughter and May were also suggesting that the application for permission should be dealt with at the pre-trial review at the beginning of next term. Slaughter and May's and the Defendants' counsel's ability to respond quickly and effectively to events arising in this litigation is amply demonstrated not only by this letter but also by their preparation for and ability to make excellent submissions at this hearing. I think that that is a material factor that I will have to consider in relation to the impact on any trial date of any allowed amendments.

On 30 November 2020 the Advinia Parties issued their application. By their application notice they seek as follows:

On 1 December 2020 the Wordley Partnership was informed that the application had been released to a judge and was asked for its dates to avoid. On Friday, 4 December 2020, having chased Chancery listing, Wordley Partnership was told that it was looking at February 2021 for an application to be heard with this time estimate. On Monday, 7 December 2020 the Advinia Parties therefore applied to the interim applications judge for expedition of the application. They asked for their expedition application to be listed on Friday, 11 December but on 9 December, having followed up with Chancery listing, Wordley Partnership was told that the expedition application had not been listed for Friday in respect of which the list was full, but it could be listed on Monday, 14 December 2020.

Throughout this time Slaughter and May were maintaining that the application was not urgent and should be heard at the pre-trial review, the expedition application should be decided on paper and that none of their three instructed counsel was available to attend a one-hour hearing of the latter application, since they were all detained by hearings and hearing preparation until 18 December 2020. They also maintained, and this has been persisted in before me, that the Advinia Parties went about the expedition application in the wrong way, and they pointed to a criticism that I made of the way they went about making a similar application in relation to the matters that were before me in June. I think that that was a very different situation, and I make no criticism of the way the expedition application was brought before the court.

As it turned out, the expedition application was successful. Mr Justice Snowden heard the application on 14 December 2020 and ordered that the application for permission to amend be listed to be heard on an expedited basis in the three-day window from Monday, 21 December 2020. That is how we have got to this hearing.

Following the hearing before Mr Justice Snowden, on 15 December 2020 the Advinia Parties served the Defendants with further drafts of their proposed amendments. The Defendants sought to make a big play in their skeleton argument on the fact that no new application notice had been issued in respect of these further changes. But in my view that was overplaying the technicalities, and, in fairness, it was not pursued before me by Mr Cumming. If I had thought that the Defendants had been disadvantaged in any way by having to deal with these further amendments without an application notice, then there may have been some justification for the complaint. But I agree with Mr Hubbard that this is really quite unnecessary quibbling with everything.

The 15 December further amendments were essentially twofold: (i) first of all, to withdraw the proposed estoppel plea in the Amended Defence and Counterclaim, and (ii) secondly, to plead a

So I turn to the Succession Issue amendments. This was an issue that I must say I was a little troubled by at the June hearing. In my judgment then, at paragraph 13, I said as follows:

That novation to the First Defendant of the rights and obligations of BCH under the English BTA is what is now questioned by Advinia. They say that because the Defendants had said that that had happened, they had assumed it to be true, and their claim had proceeded on that basis. However, they have recently thought twice about this, and insofar as they have previously admitted that to be the case, they now effectively want to put the Defendants to proof of it. The reason why they wish now to challenge this is because they want to say that the First Defendant has no title to sue Advinia under the English BTA in respect of, particularly, the Opening Balance Liabilities that I referred to earlier, the claim that is said to be worth some £6.5 million, although that may include Scottish liabilities which would be unaffected by this.

However, the submission is not so simple. As Mr Cumming has pointed out, at the end of the day, ie at the end of this litigation, there will be an accounting between the parties, and the “net financial position” (as I called it in paragraphs 105 to 107 of my June judgment) will be determined. Whether the First Defendant is an express trustee, as provided for in the BTA, or a trustee de son tort, if the BTA does not bind the First Defendant and as Advinia now wishes to allege, is neither here nor there on an accounting between the parties. Similarly, on the other side, it should not matter which Bupa party is making the claim in respect of sums due from Advinia. The only issue really should be whether the sums are indeed due from Advinia under the BTA, and if they are, that those sums will go into the calculation of the overall net financial position between the parties.

This is therefore, it seems to me, a technical point which leads in practical terms nowhere, and that is even more so in the context of it being assumed not to be a point at all ever since the claim was begun, and indeed from before the takeover.

So how has this been pleaded? In its Particulars of Claim, Advinia pleaded as follows, paragraph 6:

In response, the Defendants pleaded as follows in paragraph 17 of their defence:

Bupa was thereby confirming what Advinia had pleaded in paragraph 6, namely that the First

In its reply to that case, Advinia pleaded as follows in paragraph 4:

The Defendants say that this paragraph in the Reply amounts to an admission that the novation took place, and that therefore Advinia requires the permission of the court to withdraw it under CPR Rule 14. This descended into a rather unnecessary argument about whether this was an admission and whether, given that Advinia is only applying at this stage for permission to amend the Particulars of Claim, while recognising that the Reply will, in due course, have to be amended to withdraw that admission, the court can give some form of prospective permission to withdraw the admission in

In my view, not only was this an admission by Advinia that the novation had taken place, but there was positive reliance on it having taken place in order to found the claim. It was relied upon for the purposes of the ex parte application to Mr Justice Nugee, and it was relied on in the summary judgment application that I heard. It was not Advinia just going along unthinkingly with an averment of the Defendants'. It was a crucial part of the way that it was putting its case. I therefore do think it is appropriate to consider the application as being in part an application to withdraw an admission, and I will come on to deal with the principles involved in such a case.

Advinia has offered an explanation as to how they came to suspect that they might have wrongly admitted this. Ms Proctor explained in her witness statement that because there was some disclosure in September 2020 from the Defendants that suggested that the wet rooms issue had arisen earlier than the Defendants had previously pleaded it had, they began to suspect that other matters within the Defendants' exclusive knowledge might not have been accurately pleaded or disclosed. I have to say that I find this a little far-fetched. These two issues are very far apart. But for whatever reason, at the beginning of October 2020 the Wordley Partnership started asking questions about the novation. I have described above the letters and the RFI that they sent. Mr Hubbard criticised the Defendants' responses or lack of any helpful or meaningful response.

Eventually, in Slaughter and May's letter of 29 November, they said:

Mr Hubbard said that this did not sound much like a novation, and certainly not one in which prior written consent had been given. However, I remind him that this was all intra Bupa at that stage, and some form of consent would likely have been given by the relevant party.

Mr Cumming says that the Defendants have accepted that there is not one single novation document, indeed that was made clear in Slaughter and May's letter, but that it would be necessary to go back to that time to see how this happened and whether there are memoranda recording this and how it was generally sorted out. It seems to me that at the time Advinia would have wanted to be satisfied, as it knew BCH was leaving the group, that all parties were contractually obliged to perform the BTA and that they would want to be satisfied of that prior to the takeover. That must have been assumed to have happened not only prior to the takeover, but also in the dealings between the parties leading up to the proceedings where the netting-off was taking place, including in relation to the Opening Balance Liabilities.

The whole point of things being admitted is that parties can move on and not be bothered with investigating such matters. There have been nearly two years since the novation was admitted, and it is even longer back to when it must have been assumed by the Advinia Parties to have taken place. After such a length of time for such an admission to be withdrawn shortly before the trial is a very serious step indeed and not one which the court should indulge lightly.

As I have said above, I consider that Advinia has admitted the truth of a part of the Defendants' case in its reply, and that that is therefore within CPR Rule 14.1(1) and (2). That admission was consistent with its pleaded case in the Particulars of Claim that it now seeks to withdraw.

The CPR Practice Direction to Rule 14 in paragraph 7.2 sets out the relevant applicable principles relating to a withdrawal of an admission. Paragraph 7.2 says as follows:

Mr Justice Briggs, as he then was, in Kojima and HSBC Bank Plc [2011] EWHC 611 Ch paragraph

Obviously every application to withdraw an admission will turn on its own facts. Mr Cumming referred me to the helpful explanations of the principles by Mr Justice Popplewell, as he then was, in Bayerische Landesbank Anstal v Constantin Medien AG [2017] EWHC 131 (Comm), and he said at paragraph 55:

Mr Hubbard pointed me to two other paragraphs in the same case in order to distinguish it from our situation. In paragraph 454, Mr Justice Popplewell said that:

I take on board those distinctions with that case, but I think that all that Mr Justice Popplewell was actually doing was essentially working through the requirements of paragraph 7.2 of the Practice Direction, and that is the approach that I propose to take to this case.

So taking each of the paragraphs of 7.2 in turn:

So on the basis of the above factors, and my findings in respect of them, I am not prepared to grant permission to withdraw the admission in relation to the succession issue. For the same reasons, I would not have been prepared to grant permission to amend to plead the Succession Issue. That aspect of the application is therefore dismissed.

Before turning to the negligent mis-statement proposed amendments, I should deal with the legal principles around permission to amend. These are largely uncontroversial between the parties.

Both counsel referred me to the general principles applicable on amendment applications helpfully summarised by Mrs Justice Carr, as she then was, in Quah Su Ling v Goldman Sachs International [2015] EWHC 759 (Comm) at paragraph 38, and this is what she said there:

That statement about lateness echoed a passage in the judgment of Lord Justice Briggs, as he then was, in Hague Plant Limited v Hague [2014] EWCA (Civ) 1609 that:

The concept of lateness is therefore fact-sensitive. It is always a question of striking a balance. The balancing of the relevant various relevant factors has to lead to a just outcome for all parties in the circumstances of that particular case.

So turning to the negligent mis-statement issues, the relevant sections of the amended Defence and

The Defendants have consented to the first item, the amendments to paragraphs 26 to 38, on the basis that some of the amendments arise out of late disclosure by them. They do, however, object to the other amendments and have grouped them together on the basis that they are all essentially new negligent mis-statement claims, although I think Mr Cumming adjusted that slightly during his submissions. AHC says that to regard them as all new negligent mis-statement claims is a misreading of the proposed amendments and that item 3 above, the original negligent mis-statement, is what has always been there, and there could be no proper basis for opposing the amendments to that section. They say that there is more justification for the Defendants' opposition to paragraphs 38A to F on the basis that this is wholly new, albeit all based on the same factual context, but that permission should be granted because it does not imperil the trial date.

The original plea of negligent mis-statement is indeed contained in paragraphs 39 to 47. That case was based on the following:

As a result of what Advinia describes as late disclosure by the Defendants as to their communications with the SCI, the amendments to paragraphs 31 to 38 of the Amended Defence and Counterclaim were made. This details what the Defendants knew of the conditions that the SCI would be imposing on any transfer of the care homes to Advinia. This background material, which the Defendants have agreed should be allowed in, is the basis for not only the breach of warranty claim but also the negligent mis-statement claims. Therefore, the amendments to paragraphs 39 to 47 containing the original negligent mis-statement claim build on those averments.

AHC pleads one further email from Mr Charles Richardson, sent to AHC on 21 December 2017. That email merely attached the email of 20 December 2017 of Ms Eadie to AHC, an email that, as I have referred to, is in the original pleading and relied upon. I have some difficulty seeing how the Defendants can properly object to these amendments.

Just going through them in a little more detail:

The new email is pleaded in paragraph 41(a). As I said before, this email merely attached the earlier email of Ms Eadie which had been sent to someone else at AHC. Ms Eadie's email is the one that contains the alleged negligent mis-statement, being that it asserted that the BTA condition had been satisfied without explaining that it was still conditional on complying with the wet rooms condition.

Mr Jeens, the partner at Slaughter and May who put in a witness statement on this application on behalf of the Defendants suggested that they might want to get evidence from Ms Eadie in relation to this, but that this would be difficult because she had left Bupa and was now working elsewhere. However, Ms Eadie's email was at the heart of the original negligent mis-statement claim and the Defendants were not intending to rely on any evidence from her at trial. I believe that it is highly unlikely that they would want to do so in relation to these amendments, which do not materially add to the allegations made against her.

The Defendants say that the 21 December email was uncovered during the disclosure exercise which Advinia undertook in July 2020. Advinia does not deny that but says that it would not, however, have been sensible to amend AHC's Amended Defence and Counterclaim then in order to rely on such an email and before the Defendants had given full and proper disclosure in relation to the wet rooms issue, since it was clearly preferable to introduce all amendments in relation to that issue at the same time, as was in fact done, rather than piecemeal. I think that in those circumstances they should probably have notified Bupa that this is what they were intending to do. They also say that the 21 December email became more significant in terms of AHC's claim in negligent mis-statement when it became clear on 13 November 2020 that the Defendants would not be serving evidence from either Ms Eadie or Ms Dace, ie the individuals responsible for writing two of the emails at the centre of AHC's claim in negligent mis-statement, and the 21 December email therefore ties in Mr Richardson to give evidence about it, he being one of the Defendants' witnesses. Mr Cumming sought to make a play on this reason, but I think the point that was being made was that it was precisely because Mr Richardson was giving evidence that it would not be burdensome on the Defendants to deal with it for the trial.

In all the circumstances, but particularly because I do not believe that it changes materially the Defendants' original case on negligent mis-statement and because I believe that the Defendants are well able to deal with this amendment and be ready for a trial in February, I grant permission to amend those paragraphs of the Amended Defence and Counterclaim.

Turning to the new negligent mis-statement claim, AHC seeks permission in relation to paragraphs

The email was sent by Ms Dace of the Defendants to Mr Mark Cash of Advinia on 8 December 2017. Both Mr Cash and Dr Kanoria have explained in their evidence before me that the email was unearthed in the course of preparing Advinia's reply fact evidence. The precise date when it apparently came to the attention of Advinia's legal representatives was 11 November 2020. It had not been caught, apparently, by either side's searches pursuant to the DRD, although Mr Cumming said that it may not have been considered relevant by the Defendants, and indeed he said in his submissions that it is not relevant to the issues in the case.

Turning to the emails themselves, Mr Cash asked Ms Dace in his email for "a summary by home of all the 'unfulfilled' CAPEX plans/wishlist that were put together by H.MGRS managers/RDs". Ms Dace responded to Mr Cash saying that:

AHC's complaint, on the basis of that exchange, as set out in paragraphs 38D to F, is that a reasonable person in the position of Ms Dace would have understood from Mr Cash's email that AHC wished to know what future CAPEX (capital expenditure) AHC might be required to spend on the relevant homes. By failing to refer, in her answer to that question, to the money which it would be necessary to spend in order to comply with the wet rooms condition, Ms Dace's email, it is said, was misleading. Needless to say the Defendants say that it was not dealing with the wet rooms condition at all and on its terms it is therefore clearly irrelevant. That argument can clearly be made at the trial.

There are other amendments involving reference to Ms Dace and correspondence that she had with the SCI in paragraphs 31A and B, which the Defendants do not object to. Furthermore, she was referred to in the existing negligent mis-statement claim in paragraphs 41 and 43, in which her email of 22 January 2018 was described as misleading in that it did not expressly refer to the wet rooms condition. That email was one of the main planks of the negligent mis-statement claim, AHC having relied on it in entering into and completing the SPA. Ms Dace was accused of negligence in failing to explain to AHC the wet rooms condition. It can be seen that Ms Dace was always at the centre of the negligent mis-statement allegation, and I am therefore very sceptical of the Defendants' assertion that because of the amendments it may now be necessary to get evidence from Ms Dace. I would not wish to stop them doing so, but I am not prepared to accept that that is a reason to disallow the amendments and that it would imperil the trial date. They chose not to serve witness statements from Ms Dace on the basis of the original claim which pointed the finger at her, for whatever reason, and it would be opportunistic for them to say that evidence from her is now essential.

Mr Cumming sought to suggest that there was a distinction in the way the two allegations were pleaded against her. In the original it was a case of failure and omission; now it is said she made positively misleading statements which she knew AHC would be relying on without making independent enquiry. But I do not believe that the essential character of the allegation has changed much at all, and I do not accept that this is a weighty factor against the grant of permission.

Furthermore, I do not believe that any more disclosure or factual evidence is required to deal with these amendments and I consider that Mr Jeens and Slaughter and May have greatly exaggerated what it would be necessary for them to do if the amendments are allowed in. The further consequential amendments would not be difficult to do, and the ease with which this new allegation can be absorbed within the Defendants' trial preparation has been amply demonstrated by the way in which they have managed to file voluminous evidence and submissions at short notice on this application.

While I do not underestimate the pressures and time and expense of preparing for a trial of this sort, I really do not believe there is any material prejudice to the Defendants in allowing this allegation to be run at trial.

In the circumstances, although it is late, and although the explanation for how the email came to light is rather thin, in my judgment it is not too late for the parties to be able to prepare for a trial in February that includes this extra allegation. Without the Succession Defence there is no need for any adjournment of the trial, and I propose to allow all the amendments to the Amended Defence and Counterclaim on the usual terms as to costs.

It now remains for me to deal with one or two outstanding matters. First of all, the new plea of unjust enrichment proposed to be made in the Particulars of Claim in paragraphs 18A and 18B. That picks up the allegation that is made in the Reply by Advinia that there were two mistaken payments that should not have been paid as part of the Opening Balance Liabilities, and that that should be taken account of in the overall finding of the net balance between the parties.

What they want to do is to bring that into the Particulars of Claim and to make a formal claim for restitution in respect of those mistaken payments, and even though I'm not really sure that it takes the matter very much further, I cannot really see that there can be any proper objection to them doing so. All of the factual basis has been pleaded for some time in the Reply, and this is merely tidying up the pleadings so that it is clear that the mistaken payments do lead to a claim for unjust enrichment, and that is the basis upon which they put it.

Mr Cumming made a few short points in relation to the unjust enrichment allegation, but I did not understand him to be strenuously resisting it. He did make the point that if the Succession amendments were not allowed, there would have to be a tweak to paragraph 18A, and I think that was accepted by Mr Hubbard. So I am prepared to allow the amendments to paragraphs 18A and 18B in relation to unjust enrichment, subject to that tweaking by removing Roman (i) in paragraph 18A.

Paragraph 48 of the Amended Defence and Counterclaim concerns loss and damage. Again, I do not think that was strenuously resisted and in any event loss and damage is reserved for stage 2 of the trial, this being a split trial and only liability being considered in February. So I will allow that in.

Two final short matters concerning paragraphs 9 and 12 of the Amended Defence and Counterclaim. Paragraph 9 was to add the words in "by way of example but without limitation", and then there are following the existing pleading of three subparagraphs, with the particulars being provided about responses from BCH Holdings to AHC's request. I do not think it is appropriate to leave this pleading open-ended by amendment at a very late stage in that form. So I disallow that amendment.

But paragraph 12, which is also in the same pleading, which seeks to add the words "or otherwise supply information to AHC so close to the deadline that AHC did not have a reasonable opportunity to consider it", I think that should be allowed in because it ties in (ii) in that paragraph to the overall averment that is being made therein.