DANA UK AXLE LTD v FREUDENBERG FST GMBH

[2021] EWHC 1027 (TCC), Technology and Construction Court, Joanna Smith J, 23 April 2021

Permission to re-amend defence – Application made very close to trial – Application refused

The defendant applied for permission to re-amend its defence very close to the date of the trial of the action between the parties. The key issue in the litigation was whether the claimant’s terms and conditions had been incorporated into the contract between the parties. The claimant’s case was, and always had been, that the contract was concluded on the basis of the acceptance of its written purchase order of 17 July 2012. The defendant for its part contended that the contract had been concluded in 2003 on the basis of the claimant’s acceptance of the defendant’s formal quote. The re-amendment which the defendant sought to introduce was to enable it to deal with the possibility that the court might find that a new contract was concluded in 2012 and so sought to rely on a number of documents in 2011 in order to substantiate its alternative case that the contract was concluded on its terms and conditions even if the contract was found to have been concluded much later than 2003.