Lobov v McGregor (Approved)

Factual and Procedural Background

The Plaintiff commenced proceedings alleging that he entered into an oral agreement with the Defendant whereby the Defendant agreed to pay the Plaintiff 5% of the proceeds from the sale of a whiskey product bearing the Defendant's name and brand. The original pleadings stated that the agreement was made "in or around September 2017" at a specified gym, witnessed by several individuals.

Following pleadings and discovery processes, a trial was scheduled for May 2025. However, shortly before the trial, the Plaintiff sought to amend the pleadings to change the date of the alleged agreement from September 2017 to October 2017, based on newly recalled evidence and recovered communications. This late amendment led to the vacating of the trial date and the initiation of a motion seeking leave to amend the pleadings.

The Defendant opposed the timing of the amendment, primarily on the basis of costs incurred due to late notification, as the Defendant's legal team had prepared its defence based on the original date. The motion was heard in May 2025, addressing both the amendment request and its costs implications.

Legal Issues Presented

1. Whether the Plaintiff should be granted leave to amend the pleadings to change the date of the alleged oral agreement from September 2017 to October 2017 under Order 28, Rule 1 of the Rules of the Superior Courts.
2. What costs order, if any, should be made to address the prejudice caused to the Defendant by the late amendment and consequent vacating of the trial date.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff discovered new evidence during trial preparation, including text messages accessed from an old phone, which demonstrated that the oral agreement was made in October 2017, not September 2017.
• The Plaintiff promptly informed his solicitor upon discovery and sought to verify the information before proposing the amendment.
• The amendment is necessary to ensure the real issues in controversy are determined fairly.
• Any prejudice to the Defendant caused by the late amendment can be addressed through appropriate costs orders.
• The amendment is straightforward, narrow in focus, and does not require significant additional pre-trial preparation.
• The Plaintiff opposes an order requiring payment of all costs incurred by the Defendant since March 2025, arguing that some costs will not be duplicated and that there is a risk of double recovery.

Appellee's Arguments

• The Defendant denies the existence of any agreement to pay the Plaintiff proceeds from the whiskey product.
• The Defendant's legal team prepared the defence extensively based on the original September 2017 date, including witness interviews and verification of locations and timelines.
• The late amendment caused significant prejudice and wasted considerable time and expense, as discovery and preparation will need to be re-done.
• The Defendant argues that the Plaintiff failed to disclose the intention to amend the pleadings in a timely manner, potentially deliberately withholding this information until shortly before trial.
• The Defendant seeks an order for recovery of all costs incurred from 18 March 2025 in preparing the case for trial, including counsel fees, solicitor fees, witness expenses, on a party-and-party basis, relying on the precedent in Wolfe v. Wolfe.
• The Defendant rejects the Plaintiff's suggestion of double recovery, asserting the costs incurred were for a trial that did not proceed and must be repeated.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the liberal approach to amendments under Order 28, Rule 1, permitting amendments to ensure the determination of the real issues in controversy. The Plaintiff provided a reasonable explanation supported by affidavit evidence for the delayed amendment, including newly discovered evidence and the absence of any deliberate or tactical delay. The Court found no irremediable prejudice to the Defendant that would justify refusing the amendment.

Regarding costs, the Court recognized the significant prejudice caused to the Defendant by the late amendment, including wasted preparation and the vacating of the trial date. The Court considered the authorities, particularly Wolfe v. Wolfe, and concluded that while the Defendant is entitled to recover costs incurred due to the amendment, a full recovery of all costs since March 2025 would be excessive. The Court balanced the interests by ordering the Plaintiff to bear 75% of the Defendant's costs incurred from 18 March 2025 up to and including the first day of the aborted trial, including costs of delivering an amended defence if applicable.

The Court also noted that future costs related to preparation for the re-listed trial will be addressed by the trial judge and that concerns about double recovery can be managed through adjudication if necessary. To mitigate further prejudice, the Court imposed directions to ensure the matter proceeds without unnecessary delay and granted a stay on the costs order pending further costs orders.

Holding and Implications

The Court granted leave to the Plaintiff to amend the plenary summons and statement of claim to change the date of the alleged oral agreement from September 2017 to October 2017.

In respect of costs, the Court ordered that the Plaintiff bear 75% of the costs incurred by the Defendant from 18 March 2025 in preparing the case for trial up to and including the costs of the first day of the aborted trial, including the costs of delivering an amended defence if applicable. The Court granted a stay on the costs order pending further costs adjudication.

The decision directly affects the parties by allowing the amendment but imposing significant cost liability on the Plaintiff for the late notification. No new legal precedent was established; rather, the Court applied established principles governing amendments and costs in the context of late procedural changes.