SCRP Fund I Finance v Robson: Commercial Court refuses late fraud amendment in warranty claim

A lender seeking to add fraud allegations to a warranty claim weeks before a ten-day trial has been refused permission to amend, with the Circuit Commercial Court in Newcastle finding that neither the strength of the new case nor the explanation for its timing justified the disruption.

Her Honour Judge Kelly, sitting as a High Court judge, handed down judgement in SCRP Fund I Finance SARL v Robson and another [2026] EWHC 2477 (Comm) on 6 October 2026. Simon Goldberg KC, instructed by Gateley Legal, appeared for the claimant. Hugh Sims KC, instructed by Square One Law, appeared for the defendants, Paul and Wendy Ann Robson.

A management buyout unravels

The dispute arises from a September 2022 share purchase agreement under which the defendants sold five companies to NAC Group Holdings, a vehicle funded by the claimant for a management buyout. After the buyer entered administration in June 2024, the claimant pursued breach of warranty claims as assignee. The defendants pleaded an equitable set-off based on earn-out seller protections.

Trial was fixed for 26 October 2026. After the defendants served further particulars in May, the claimant's response introduced allegations of improper incentive payments. Its application to amend followed, one day late, pleading fraudulent misrepresentation against the first defendant. A third draft, served 18 days after the court's deadline, recast the claim as one brought by the claimant as lender.

Extension granted

Applying Denton v White, the judge treated the 18-day delay as serious, as Mr Goldberg conceded, and found no good reason for it, since counsel's holiday was known when the timetable was set. She nonetheless granted the extension, concluding that the claimant would suffer significantly greater prejudice if the third draft were excluded than the defendants would by its consideration.

Fraud case lacks strength

Faced with conflicting first-instance authority on whether warranties can also found a misrepresentation claim, the judge assumed a realistic prospect on the law. She held, however, that the claimant bore a heavy burden to show the strength of a very late case, and had not discharged it.

The allegations concerned payments to two individuals said to be bribes. Some material raised questions, but other explanations were available. There was no evidence that the payments were excessive or lacked a legitimate business purpose, and accountants had reviewed the group's accounts in due diligence without raising concerns. The judge also identified difficulties over reliance and the knowledge of management team members involved in the buyout.

Responsibility for the timing

Even had the case been strong, permission would have been refused. The claimant said its wider document searches followed only after the further particulars. The judge held that a claimant must plead and prove its own case, and that the defence had said in November 2024 that particulars would follow disclosure. The claimant held nearly all the relevant documents among more than 1.1 million disclosed, and finding further material through searches beyond the agreed disclosure review document did not show anything had been concealed.

Overvaluation claim

The standalone amendments alleged overstated EBITDA in the accounts. They depended on a pre-action letter of 9 April 2024 satisfying paragraph 1 of schedule 4 to the SPA, which requires notice within 24 months of completion specifying in reasonable detail the circumstances, the breach and the amount claimed. The letter did not mention the new inaccuracies, so the claimant had no realistic prospect of establishing valid notice.

The application to amend was dismissed. The judge added that the defendants might resist any fresh proceedings by relying on Henderson v Henderson.