Iggleden v Fairview New Homes (Shooters Hill) Ltd

A late amendment should generally be allowed where it permits the real dispute to be determined, provided resulting prejudice can be compensated in costs and the administration of justice is not significantly harmed. That principle does not mean every amendment must be permitted. Where amendment is sought shortly before trial, the court must consider whether it would require an adjournment or place the parties on an unequal footing. The applicant must explain the delay. The court may refuse an amendment where the opposing party cannot fairly investigate, plead and obtain necessary expert evidence within the remaining preparation time.

The claimants brought building-defect proceedings concerning their new home. Shortly before trial, they applied to amend their statement of claim to add a claim for residual diminution in value, described as blight. The proposed claim required valuation evidence. A previous informal application had been refused because the pleading was defective and unsupported by expert evidence. The issue was whether the fully pleaded amendment should now be allowed despite the limited time before trial.

1. Application refused. The claimants’ application to amend their statement of claim to add the blight claim was rejected.
2. The governing principles were drawn from the commentary on Civil Procedure Rules 1998 Part 17.3. Amendments should generally be allowed so that the real dispute can be determined, where prejudice can be compensated in costs and the administration of justice is not significantly harmed. That principle must not be converted into a rule that all amendments are allowed.
3. When an amendment is sought close to trial, the court must consider whether it would require an adjournment and, even if it would not, whether it would place the parties on an unequal footing. The judge applied the principles discussed in Cobbold v Greenwich London Borough Council, Bowerbank v Amos, Woods v Chaleff and Morris v The Bank of America National Trust and Savings Association (Amendment of Claim).
4. Three considerations justified refusal. First, the claimants gave no explanation for advancing a claim identified approximately two years earlier only ten working days before trial. The absence of an explanation was relevant to the exercise of discretion.
5. Secondly, Fairview could not fairly deal with the new allegation in that period. It required a suitably experienced valuation expert, investigation of the property and comparables, consideration of the remedial works, a report, amendment of the defence, and a meeting of valuation experts.
6. Thirdly, allowing the amendment would leave the claimants free from further work on the issue while imposing disproportionate preparation on the defendant. That would prejudice trial preparation, create an unequal footing and be unjust.

The judgment was a first-instance decision on an application to amend. The judgment records that an earlier informal application had been refused at a pre-trial review on 11 May 2007. The present fully pleaded application was refused.