Pearson Pension Funds v Gurney Consultants

Late amendments may be permitted where the opposing parties can fairly respond before trial and the trial date is preserved. The court must refuse an amendment that causes irredeemable prejudice through delay or puts the trial date at risk. Where several amendments are proposed, the court may allow a substantial amendment subject to strict conditions, while refusing new issues that require disproportionate additional evidence or preparation. The court should assess the practical consequences of each amendment, including the time available, the need for expert evidence, the value of the issue and whether it was previously in issue.

Pearson Pension Funds claimed approximately £2.5 million in damages from Gurney Consultants for breach of duty arising from the collapse of a building frontage during refurbishment works. Gurney applied shortly before a 16-day trial to amend its Part 20 claim, causation case and counter-schedule of loss.

The proposed amendments concerned the alleged reduction in the size of a column, the mechanism of collapse, and three quantum issues relating to notional completion dates, actual completion delay and the commencement of remedial works. The central issue was whether the amendments could be dealt with fairly without losing the fixed trial date.

1. Application in part granted. The court allowed the amendment concerning notional completion dates, subject to strict disclosure and evidence conditions. It refused the amendments concerning actual delay in completion and the proposed earlier commencement of remedial works.
2. Late amendments should not be permitted where their lateness causes irredeemable prejudice or puts the trial date at risk. The fixed trial date was especially important because the proceedings already concerned events occurring eight years earlier. Any permitted amendment therefore had to be capable of being addressed properly by trial.
3. The court assessed each amendment separately. The column-size and mechanism-of-collapse amendments were allowed subject to proper particulars and time for responsive pleadings and evidence. The mechanism allegation was to be treated as part of the defence so that Pearson could answer it.
4. The notional-completion amendment was already substantially in issue because Pearson had to prove its own completion dates. Some of the proposed material could have been raised in cross-examination. It was therefore proportionate to allow the amendment, provided that the supporting parts of the programming expert’s report and material were served promptly, and Pearson was permitted responsive expert and factual evidence.
5. The other two quantum amendments were wholly new matters. They required extensive investigation of remedial works, programming, critical delay, variations and expert evidence. Their late introduction would create disproportionate and unfair preparation burdens and plainly put the trial date at risk. The possibility that one issue might have been suitable for a preliminary issue, by reference to Hospitals for Sick Children v McLaughlin & Harvey [1990] ConLR 25, could not fairly be relied upon at that late stage.
6. The resulting order preserved the trial date while allowing the highest-value quantum issue to be determined. The remaining amendments were refused.

First-instance decision. The judgment does not state any prior appellate history.