In our e-bulletin dated 16 February, we reported on the Court of Appeal's decision in Swain-Mason and ors v Mills & Reeve [2011] EWCA Civ 14 which, we said, signalled a strict approach to applications for late amendments. The court in that case overturned Peter Smith J's decision to allow an amendment to particulars of claim on the first day of trial. The judge had followed a line of authority to the effect that amendments should generally be allowed, provided that any prejudice to the opponent can be compensated in costs (eg. dicta in Cobbold v Greenwich LBC, Court of Appeal, 9 August 1999). The Court of Appeal instead endorsed the approach in the case of Worldwide Corporation v GPT Ltd [1998] EWCA Civ 1894, to which the trial judge had not been referred, finding that there is a "heavy onus" on a party seeking a late amendment to show the strength of the new case and why justice requires him to be able to pursue it.

A subsequent decision of Peter Smith J considers the court's approach to a late application for the introduction of evidence: Nottinghamshire and City of Nottingham Fire Authority v Gladman Commercial Properties [2011] EWHC 1918. In that case, the judge accepted that the principles applying to late amendments are equally relevant to an application to admit late evidence. However, he went on to criticise the Court of Appeal's judgment overturning his own decision in Swain-Mason. In his view, he was now faced with conflicting authorities and concluded that he should follow the Cobbold decision in preference to Swain-Mason – rather surprisingly, given that the Court of Appeal in Swain-Mason had expressly considered and reject the Cobbold approach.

The judge stated that "lateness is a factor but it should not be given an elevated status above any other factor in ensuring that justice is done between the parties". In the judge's view, evidence should not be excluded merely because it is late, and "where late evidence can be dealt with by the other party even on terms as to adjournment in costs the evidence should ordinarily be allowed". This is in obvious contrast to the Court of Appeal's approach to late amendments in Swain-Mason.

The present judgment signals some confusion over the proper approach to late applications to amend pleadings, and whether or not the same principles apply to late applications to admit evidence.