Gabriel v Hayward & Ors

Permission to amend pleadings may be granted despite prolixity or imperfect particularity where the claimant cannot substantially simplify the case and refusal would cause the claim to fail or proceed on acknowledgedly inadequate pleadings. Lack of particularity creates real difficulty for defendants, but it should not prevent a claim being heard where the claimant may still prove it. The court must balance justice to both sides. Where adequate compensation in costs is uncertain, that may nevertheless be the lesser evil. At an interlocutory stage, an amendment should not be refused as bound to fail where the legal issue remains uncertain on the pleaded facts.

The claimant sought permission to substitute lengthy amended particulars of claim concerning substantial alteration and refurbishment works at his London home. The claims included alleged professional negligence, excessive costs, defective work, delay-related losses and associated damages against quantity surveyors, design consultants and contractors.

The defendants objected on grounds including limitation, lack of particularity, prolixity, contradictory allegations and alleged legal insufficiency. The central issues were whether the proposed pleading should be permitted, whether particular amendments introduced new or time-barred claims, and whether any claim was bound to fail.

1. Application allowed, subject to deletions. The proposed amended particulars of claim were permitted by substitution, subject to passages conceded for deletion and the table of defects, together with its associated wording. The defendants were given leave to amend their defences consequentially.
2. Lack of particularity makes it difficult for defendants to prepare their cases. However, a claimant’s inability to provide particulars should not prevent the claim being heard where there remains a real prospect of proving it. That qualification was satisfied here.
3. The proposed pleading was lengthy and did not fully comply with the expectation of concise statements of fact in CPR 16.4(1)(a). It was nevertheless clear, contained little significant repetition and could not substantially be simplified given the nature of the dispute. A third attempt at amendment would serve no useful purpose.
4. Justice required the court to balance the claimant’s interest in having the claim determined against the defendants’ interest in avoiding the expense of dealing with an inadequate pleading. Although costs might not provide full compensation, that was the lesser evil when the alternative was that the claim would fail or proceed under pleadings accepted by all parties to be unsatisfactory.
5. Amendments pleaded to arise from substantially the same facts as existing claims were permitted. An amendment alleging that a design consultant should inspect contractors’ work was implicit in existing allegations of supervision and was allowed. A table of additional defects was refused because, if the damage fell within the relevant period, the defendant would lose a limitation defence.
6. Contradictory claims may be pleaded in the alternative. The court declined at this stage to decide that a claim for costs incurred in investigating and compromising another claim was bad in law. It also declined to treat the contractors’ claim as bound to fail because the pleaded facts were sufficiently complicated and unusual to make the application of the general proposition stated in Henderson v Merrett Syndicates Ltd uncertain.

The court indicated that case-management powers, including possible further information after pleadings closed, would be needed to make the case conveniently triable.

First-instance decision. No appellate history was stated in the judgment.