Carillion JM Ltd v PHI Group Ltd

When a proposed Part 20 claim cannot be tried with the main claim without moving an imminent trial, the court must balance the connection between the claims against the prejudice to existing parties and the proposed new party. Delay by the applicant is a significant factor, particularly where there is no cogent and candid explanation. Separate hearings may be ordered where procedural safeguards, including disclosure, early service of pleadings and use of the same judge, sufficiently reduce the risk of inconsistent findings. A late amendment will not be permitted merely because the legal principle is arguable. It must be properly and fully formulated, setting out the facts that the opposing party must meet.

Carillion brought a claim against PHI concerning failures in soil-nailing works at Wembley. PHI sought permission to amend its Defence, including admissions and allegations of contributory negligence, and to join Robert West Consulting as a Part 20 defendant for contribution or indemnity.

The proposed joinder was not opposed in itself. The dispute concerned whether PHI’s claim against Robert West should be heard with Carillion’s claim, since Robert West could not be ready for the imminent trial. Carillion opposed one proposed amendment, concerning additional construction cost and betterment.

1. Joinder and separate hearing. The factors in CPR 20.9(2), including the connection between the claims and the remedies sought, strongly favoured a joint hearing. That had to be balanced against the prejudice caused by adjourning a trial which had already been postponed. PHI had failed to provide a satisfactory explanation for the delay in seeking joinder. The observations in Alfred McAlpine v SIAC Construction [2005] EWHC 3139 (TCC) supported maintaining the existing timetable while protecting the proposed new party from procedural injustice.
2. Fairness required the Part 20 claim to be heard separately. Robert West was to give disclosure before the main trial, serve its Defence in sufficient time, and be heard by the same judge. These safeguards substantially reduced the risk of inconsistent findings. PHI was permitted to join Robert West on those terms.
3. Explanation for delay. The reasoning in Borealis AB v Stargas Ltd [2002] EWCA Civ 757 demonstrated the importance of a proper and frank explanation where a party seeks the court’s indulgence close to trial. PHI’s privileged status did not justify seeking that indulgence without providing any adequate explanation.
4. Amendment. The unopposed amendments were allowed. Permission was refused for paragraph 61A. A pleading must contain facts, not merely assert a principle such as betterment. The proposed amendment did not identify the additional cost or the case which Carillion had to meet. PHI remained free to make a further application if it later produced a properly formulated amendment.
5. PHI was ordered to pay Carillion’s and Robert West’s costs of the application, including Carillion’s assessed costs of £10,500, and Carillion’s costs arising from the amendments.

First-instance decision. The judgment does not state any prior appellate decision.