In Elafonissos Fishing & Shipping Co v Aigaion Insurance Co SA (2012) EWHC 892 (Comm), the defendant insurers, Aigaion Insurance Co SA (Aigaion), sought to re-amend its Defence to a claim brought by the claimant, Elafonissos Fishing & Shipping Co (Elafonissos), under a policy for marine insurance in relation to a damaged vessel, and to adduce expert evidence in support of its amendments.
The vessel was lying at anchor when the effect of a cyclone caused it to drift until it hit the quayside causing considerable damage to the vessel which Elafonissos sought to recover from Aigaion under the policy. The policy provided that the vessel was "warranted laid up" in port. In its Defence, Aigaion pleaded a breach of warranty and subsequently applied to the High Court at a late stage in the proceedings to make several amendments.
The Court stated that the amendments, in general, ought to be allowed provided that Elafonissos, be compensated for any prejudice suffered. Furthermore, any proposed amendment must be sufficiently precise, supported by evidence and rejected if it is clear that it has no prospect of success.
The Court held that the application by Aigaion was late, but not extremely late, and Elafonissos could not point to any real prejudice if the amendments were allowed. However, given the relatively small value of the claim and the considerable costs incurred to date, the Court considered it appropriate to scrutinise each proposed amendment and establish whether it satisfied the test of demonstrating a realistic prospect of success.
Based on the expert evidence exhibited by Aigaion, the Court rejected those amendments where it did not consider that there was a realistic prospect of success and permitted those amendments where it was satisfied that a realistic prospect of success existed and the issues should be properly argued at trial.
Despite voicing serious doubts over the admissibility of the expert evidence, the Court allowed Aigaion to adduce parts of the expert's report in so far as they related to the permitted amendments. The Court emphasised that this decision did not prejudice any trial judge's conclusion to admit such evidence.
This decision confirms that amendments to a pleading may be permitted at a late stage in the proceedings. However, any proposed amendments must be supported by evidence which demonstrates a realistic prospect of success.