Upton McGougan Ltd v Bellway Homes Ltd & Ors

Pleadings must identify the parameters and general nature of the case, particularly in professional negligence claims. Detailed allegations of breach, alternative designs, assumptions and calculations should not first appear in an expert’s report where they materially alter the case to be met. Expert meetings and reports may develop detail only after a clear issue has been joined on the pleadings. The court should balance the need for fair notice against disproportionate demands for particulars. Where an expert report advances a materially new and unpleaded case, the court may prevent reliance on it at trial unless the pleading is amended.

Upton McGougan Limited claimed unpaid professional fees from Bellway Homes Limited and related defendants. The fee claim had been compromised, leaving Bellway’s counterclaim alleging negligence in relation to the removal of spoil from a development site.

Bellway served an expert report containing alternative site-level designs, new design assumptions, additional alleged sources of spoil and new calculations of the quantity of excess spoil. Upton applied to debar Bellway from relying on those parts of the report, arguing that they went beyond the pleaded counterclaim and would require an adjournment of the forthcoming trial.

The central issue was whether the report dealt with pleaded issues in greater technical detail or advanced a new case requiring amendment.

1. The application to debar was made out. The challenged parts of the expert report fell outside Bellway’s current pleading. The order did not immediately strike out the report, but Bellway was given a short opportunity to decide whether to seek amendments and bring its pleadings into line with the report.

2. Statements of case remain essential under the CPR. As explained in McPhilemy v The Times Newspapers [1999] 3 All ER 775, pleadings mark out the parameters of the case, identify the issues and define the extent of the dispute. In professional negligence claims, proper particulars will generally be required in the underlying pleadings rather than emerging for the first time in witness statements or expert evidence.

3. Expert evidence may contain considerably greater technical detail than the pleadings. However, the experts’ meeting and reports can properly address an issue only where the pleadings have first joined a clear issue which both parties and experts understand, unless the parties expressly agree otherwise.

4. Part 1 of the expert report advanced an entirely new alternative design. It relied on design assumptions, construction methods and alleged failures to account for several sources of spoil that were not pleaded. Upton could not fairly defend an allegation that its design should have been different without knowing the alternative design and why it was said to be feasible.

5. Part 2 likewise introduced new allegations and calculations. Matters pleaded by Upton as causes outside its responsibility were not converted into allegations against Upton merely because Bellway had not served a reply. Bellway needed to plead that those matters were Upton’s responsibility and to identify the relevant quantities. The proposed new quantum figure was calculated in a wholly new way and had not been properly addressed by Upton.

6. The court adopted a proportionate approach. Excessive particulars should not be demanded, but a party is entitled to know the specific allegations of default sufficiently early to prepare its evidence. As stated in British Airways Pensions Trustees Ltd v McAlpine 72 B.L.R. 26, pleadings are a means of securing a fair hearing.

   If Bellway applied to amend, the trial would inevitably have to be adjourned. Costs thrown away by any adjournment remained to be addressed.