The approach of tribunals towards amendments is increasingly liberal, especially if no new facts are pleaded. However, a difficulty remains in situations where an amendment is requested at the hearing itself. It is particularly prejudicial for a respondent to be faced with an allegation for which it has not prepared but, conversely, justice demands that a claim should not be defeated by the technicality of pleadings, in what is supposed to be a jurisdiction accessible to all. The overriding objective provides the possibility of granting a short postponement to allow a respondent to take further instructions. As a result, the amendment can be granted while keeping any prejudice to the respondent to a minimum.

Given the range of options that are available to a tribunal, it should not be surprising that there is so much variation in practice, particularly when it comes to the granting of last minute amendments. The guidelines from the famous case of Selkent Buses v Moore do not always make it possible to predict the outcome because there is always prejudice to a respondent in such a situation. The only question is whether it is sufficient to defeat the amendment and, on the face of it, Selkent does not answer this.

However, there is a lesser-known passage in Selkent which states that an amendment can be rejected if it is hopeless on its face, regardless of the other factors. If it is arguable then all the circumstances must be considered but the non-exhaustive list of relevant factors does not include the merits of the amendment, once the threshold of arguability has been reached. This seems inconsistent. If a case is only barely arguable then the degree of prejudice should surely have a greater weight than if is very straightforward and my experience suggests that this is indeed the case, although not always stated explicitly by tribunals. This is a classic example of dark law where a sensible gloss to the authorities is adopted by tribunals but has never been supported by a higher court, in part because the tribunals themselves are unwilling to allow it to be tested. Ironically, an appeal-proofing mentality results in the law being less clear so that parties are less likely to understand why they have lost. I am not convinced that this approach always reduces the number of appeals and, quite often, it has the opposite effect.