SM v BA & Anor (WD) (No 3 Amendments to Statement of Case) [2026] EWFC 9

Judgment date: 14 January 2026

https://caselaw.nationalarchives.gov.uk/ewfc/2026/9

Mr Nicholas Allen KC sitting as a s 9 deputy judge of the High Court.

Overview

Beware of the consequences of very late applications to amend a statement of case.

Application by Wife to amend statement of case/particulars of claim within intervener financial remedy proceedings where a beneficial interest was in dispute. For many reasons but mainly due to the W’s application, pursuant to the CPR and procedural case law, being very late, the application was dismissed.

Background

W made an application to amend her statement of case within FR/intervener proceedings and to adduce two witness statements. The application was dated 19 December 2025. There had been two previous reported judgments in this case. This part of the case involved H’s sister being intervened into proceedings relating to a beneficial interest in a property. A preliminary issue hearing was listed for five days on 23 February 2026 and a final hearing for ten days commencing on 22 June 2026.

The H and his sister opposed the W’s application. W had already made two previous applications for further disclosure. Some disquiet was made about the timing of the W’s application (being an ambush); however there was time to hear it on the already listed hearing date.

The assets were between £9m and £99m depending on business valuations and loans. The parties’ costs may exceed £4.5m. The parties’ total costs for the preliminary issue alone were estimated at £1m, in relation to a property which depending on a disputed loan had equity either of nil or £1.5m.

The deputy High Court judge sets out in some detail the law and procedure on such applications. Where the FPR is silent on the procedure for situations and applications such as this (which it is here), the CPR takes centre stage. This is a case which would be heard in the Business, Property, and Probate Court ordinarily if not a TL v ML type situation within FR proceedings. The case law on late applications to amend statements of case/particulars of claim is clearly set out and will not be rehearsed in detail; see [24]–[37].

In Andrew Brown & Ors v Innovatorone plc & Ors [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 [14] of his judgment, the judge set out some of the likely factors that would be involved in striking a fair balance.

They were:

‘(1) the history as regards the amendment and the explanation as to why it is being made late;
 
(2) the prejudice which will be caused to the applicant if the amendment is refused;
 
(3) the prejudice which will be caused to the resisting party if the amendment is allowed;
 
(4) whether the text of the amendment is satisfactory in terms of clarity and particularity.’

The decision

The application to amend was dismissed for the following reasons in summary and in accordance with the test in Andrew Brown & Ors:

1. W had considerable time following the filing of defences (over eight months) and had leading, junior, and specialist chancery counsel instructed at all material times and from the outset. Instruction of new counsel does not constitute a good reason for late or very late amendments.
2. There was no amendment necessary to plug a legal lacuna in the W’s case in any event.
3. There would be a prejudice to W of not being granted permission. However, W had already pleaded a ‘legally recognisable claim covering various cumulative (or alternate) legal bases (around various trust arguments)’. This was not a case of the W trying from the darkness to work out what the H [or another] has been doing and is not a developing picture as was the case in SM v MM & Ors [2024] EWFC 463 in a ruling by HHJ Hess sitting as a s 9 judge. The W should have pleaded appropriately from the outset.
4. In terms of any prejudice caused to the resisting party if allowed: The consequences of allowing the amendment would be significant. The proposed amendments (and the witness statements) involved extensive changes and new claims to the W’s factual case. If allowed the preliminary hearing would have to be vacated and there could not be a fair hearing. H and his sister would not be given a fair opportunity to investigate and address the new allegations/claims. The preliminary hearing date had been set as early as 22 July 2025. All of this would be wasted inter alia.
5. The actual text of the amendments was not satisfactory in terms of clarity or particularity. They ‘defy easy summary and are legally abstruse (to put it mildly)’. The judge placed weight on A v A where Munby J considered putting cases in the alternative (about whether the W had signed a crucial document) where each account is quite inconsistent with the another.

Conclusion

At [83] in accordance with the non-determinative four factors from Andrew Brown the amendments would not be allowed. This was also in line with the overriding objective. In essence this application fell within the category of a very late proposed amendment. This was not a borderline case.