Swann & Anor v Potton Ltd

In case management, the court must apply the overriding objective proportionately, particularly where an exercise would consume substantial time and cost without materially assisting the trial. A witness statement need not be extensively edited before trial where the trial judge can disregard inadmissible opinion or hearsay and attach it little weight. A short delay in serving an amendment is not a sufficient objection where the order is not an unless order and no prejudice is shown. An amendment should be permitted where it raises a properly arguable contractual claim, even though its ultimate success depends on the evidence.

The claim concerned alleged excessive shrinkage and differential movement in a timber-framed house supplied and erected by Potton Ltd. The claimants sought damages of nearly £120,000 and also sought to amend their Particulars of Claim to allege that Potton had agreed to procure a structural warranty underwritten by Zürich Insurance.

The proceedings had been delayed by difficulties in appointing the court-ordered single joint expert. The court considered objections to the amended pleading, objections to parts of the claimants’ witness statement, and the consequences of the expert’s unavailability for the listed trial.

1. Case management and proportionality. The court declined to undertake a detailed exercise of excising alleged opinion and hearsay from the claimant’s witness statement. The statement was to be provided to the expert with an appropriate warning that it was to be considered only for factual matters. The trial judge could disregard inadmissible material or attach little weight to it. Continuing to edit the statement would be wholly disproportionate in cost and court time.
2. Late amendment. The draft amended Particulars of Claim had been served a few hours late. That was not a valid objection because the relevant order was not an unless order and the lateness caused no conceivable prejudice.
3. Arguable warranty claim. The proposed amendments concerning a term requiring Potton to procure a Zürich structural warranty were properly arguable. Whether such a term existed depended on construction of the contract. The claim concerning the refusal to issue the warranty could ultimately fail, including if non-Potton defects independently prevented its issue, but those were matters for determination on the facts. The court also recognised arguable issues concerning sequential or joint causes of loss.
4. Duties to the court. Solicitors and counsel owe duties to the court as well as to their clients. Those duties include assisting in achieving the overriding objective and complying with court orders. If agreement on instructions to a single joint expert cannot be reached, the matter should be brought promptly before the court, especially where the other party is unrepresented.
5. Trial directions. The trial was adjourned because the proposed expert was unavailable and was relisted for 11 October 2010. The parties were expected to co-operate and to notify the court promptly of any further problem materially affecting the trial or case management.