Scobie & Ors v Fairview Land Ltd

Amendments should generally be permitted where they enable the real dispute to be adjudicated, unless the opposing party would suffer prejudice that a costs order cannot compensate or the amendment would harm the administration of justice. Case-management orders restricting amendments do not necessarily prevent a later application for permission. Late technical or quantum amendments may be allowed where the evidence can fairly be addressed before trial and appropriate directions protect the opposing party. Expert evidence should not be excluded merely because it is presented imperfectly if its substance is reasonably intelligible and clarification is available. A claim may be struck out for failure to comply with an unless order where the information supplied is materially inadequate.

The claim concerned alleged defects in a residential development. The claimants sought permission to amend their pleadings and Scott Schedule, increase certain quantum claims, and adduce further quantum material from their expert. The defendant opposed several amendments on grounds of lateness, prejudice, inadequate particularisation and inconsistency with earlier expert discussions.

The defendant also sought judgment or strike-out in relation to an item concerning a leaning boundary wall, alleging that the claimants had failed to comply with an order requiring further information. The court determined the applications while managing the preparation of a forthcoming trial.

1. Amendments. Permission was granted for the opposed amendments, subject to constraints and case-management directions. The governing principle, reflected in the notes to CPR 17.3.5, was that amendments should generally be allowed so that the real dispute can be adjudicated. The relevant limits were uncompensable prejudice to the opposing party and harm to the administration of justice.
2. The court accepted amendments concerning NHBC Technical Requirements because they were reasonably arguable and related to standards already substantially in issue. Amendments increasing or reorganising preliminary costs were allowed because they reflected the experts’ agreed change to a single-contractor costing approach and could be reviewed before trial. Amendments concerning electrical defects and plasterboard defects were also allowed, subject to prompt service of expert evidence, access for inspection and review at a pre-trial hearing.
3. Amendments shifting claims for accommodation, removal, storage and rental losses from the management company to individual claimants were permitted. The heads of loss had already been pleaded, were readily checkable and caused no real prejudice. The court also permitted amendments involving alleged deviations from joint expert statements, since the statements did not clearly establish final agreement on the disputed quantum.
4. Expert material should not be excluded merely because it lacked prose explanation or arithmetical summaries. The material was sufficiently intelligible, and clarification could have been sought from the claimants’ expert.
5. Item 826 was struck out. The response to the order requiring a full cost breakdown and work schedule did not identify essential matters such as materials, anchor depth and angle, drilling and preparatory works. A bare reference to a pricing publication did not satisfy the order. The parties and experts were directed to resume cooperation and produce further joint material.