Mann J. took the view that this was not a late amendment falling within principles on late amendment distilled in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm). Permission to amend was therefore granted.

Mann J. said,

’23. … this application does not fall to be treated as a late application of the kind referred to by Carr J in Quah Su-Ling. In that context a “late” application is one made at a time when it would force the abandonment of a trial date if granted. That is not really the case here.

It is true that the Sun cases were taken out of the list of those destined for trial, but it was not inevitable that these cases would have been tried anyway.

The cases which will be tried will be those chosen closer to the date (at the PTR) out of the cohort of cases apparently ready for trial. In the typical “late application” case the court is usually faced with a choice — allow the amendment and at the same time vacate the trial date, or keep the trial date and disallow the amendment.

The nature of the phone hacking litigation is such that that was not the case in January, when this matter first arose. There were other cases going to trial which could be tried, and no particular reason why Sun-related cases would otherwise be likely to have been given any priority in the choice of cases to be tried at the PTR which will be held close to trial.

By the time this point was argued the case was taken out of that cohort because there were plenty of other cases which were candidates in any event.

24. This is therefore not a typically late case in relation to most of the cases in which the point is taken, though it may become so in relation to two of them…

25. Nor is the application rendered late (for these purposes) by what happened at the February 2014 hearing.

It is true that I indicated that points arising out of the resisted attempt to introduce the Sun into the firing line would have to be dealt with sooner rather than later, but that was not in the context of Mr [C]’s case or (so far as I am aware) any other case with which I am now concerned. It was in the context of a batch of cases which has by now been dealt with. My remarks were intended to make sure that the proper progress of any cases in which the point was going to matter was not going to be held up to an undesirable extent and, to a degree, to make sure that the point was raised in a correct procedural context. It was not intended to debar all future claimants from relying on the Sun point raised via the GPOC.

26. In that context it is relevant to repeat a point that I made in my previous judgment. At paragraph 11 I reflected on the fact that barring a case by refusing an amendment would not prevent the same point being taken in a new pleading in a new case.
New litigants would therefore have an opportunity of running a case denied to the present claimants.

As before, that does not mean that it is not (and perhaps never can be) too late for these litigants, but I have to bear in mind the anomalies that would be created if these applications were characterised as “very late” with all the consequences that that is said to have when other cases would not be dealt with in the same way.

27. In the circumstances I do not consider that these applications fall into the category of the “very late”. The relevant consequence of that is not that they will be allowed; it is that the scrutiny of the merits that is required may require a lower hurdle. I still have to consider the merits, because Mr White says they are insufficient in any event.’

[Edited and formatted for ease of reading.]