Cunningham & Ors v Collett & Farmer (A Firm)

Applications to amend pleadings on the first day of trial require a structured and proportionate balancing exercise. The court should consider the prejudice to the applicant, the prejudice to the opposing party, and any effect on the administration of justice. The proposed amendment must also have some prospect of success.

Late amendments should generally be allowed where they cause no substantial prejudice and permit the real issues to be decided. They should be refused where they require an adjournment, extensive new evidence or expert investigation, introduce wholly new issues without adequate explanation, or pursue a claim with no realistic prospect of success. The court may permit a limited further application where the relevant evidence and disclosure are later put in order.

The claim concerned alleged professional negligence and related contractual breaches arising from construction works and a letter of intent. On the first day of a two-week trial, the claimants sought permission to re-amend their particulars of claim and introduce new evidence.

The trial had already been adjourned three times at the claimants’ instance. The applications were made shortly before trial, after the claimants had had substantial time to clarify their case. The court considered disputed amendments concerning a new tortious duty, background matters, breach, causation and heads of loss, including alleged uncompetitive tendering, delay, diminution in value and the costs of related litigation.

1. Applicable approach. The court had to balance the prejudice to the party seeking amendment, the prejudice to the opposing party, and any significant effect on the administration of justice. The exercise had to be conducted methodically, with reasons, and proportionately. The amendment also had to have some prospect of success.
2. Late amendments. The court was generally disposed to allow amendments which caused no substantial or significant prejudice and enabled the real issues to be decided. An amendment requiring an adjournment was unacceptable in the circumstances. Relevant considerations included the three previous adjournments, the claimants’ unexplained delay, the need for the defendants to know and prepare their case, and the extent to which the proposed matters required new factual, disclosure or expert evidence.
3. Applications allowed. Amendments introducing a common-law duty of care were allowed because they arose from matters already pleaded or contained in contemporaneous documents. Amendments concerning the First Claimant’s illness, the absence of a structural engineer, taking advice, certain costs, stigma and specified general-damages delay matters were also allowed. The structural-engineer allegation was confined to the alleged advisability of proceeding by a letter of intent and could not later be used to allege responsibility for site delay or recoverable loss and expense.
4. Applications refused. The allegation that the tender was uncompetitive was refused because it was new, would require substantial evidence and disclosure, could cause an adjournment, and was disproportionate to the modest amount potentially recoverable. Claims concerning the costs of the related litigation were refused as presently unsupported, but a limited further application was permitted once evidence and disclosure were ready. New delay allegations and a diminution-in-value claim were refused because they would require a lengthy adjournment and the diminution claim had no realistic prospect of success. The existing liquidated-damages claim remained open.
5. All other proposed re-amendments were allowed, subject to these qualifications. The claimants were permitted to make a further limited application concerning solely the legal costs of the related proceedings.