Co-Operative Group Ltd v Birse Developments Ltd & Ors

On an application to amend, the court should not conduct a mini-trial or reject a realistically arguable claim merely because it may fail. The claimant must nevertheless plead its case with sufficient clarity, particularly where it advances a substantial departure from its existing case. It must identify the alleged breaches, their causal connection with the loss claimed, and the circumstances in which the relevant decision was made. An amendment cannot be used to circumvent an earlier appellate ruling refusing permission to advance a different cause of action. Case-management discretion includes refusing a further opportunity to amend where repeated failures to provide proper particulars would cause substantial delay and prejudice the overriding objective.

The claimant sought permission to re-amend its Particulars of Claim in proceedings concerning defective warehouse floor slabs. It wished to claim replacement costs by alleging that defects, principally inadequate thickness and poor workmanship, caused the decision to replace the slabs.

An earlier amendment concerning inadequate steel-fibre content had been permitted by Judge Stephen Davies but rejected by the Court of Appeal. The court had subsequently allowed the claimant in principle to advance a causation case based on already pleaded defects, subject to adequate particulars explaining how, when, why and by whom the replacement decision was made.

The issue was whether the material supplied satisfied that condition and whether the further proposed amendments were sufficiently pleaded.

1. Amendment concerning replacement costs. The claimant had not identified, in pleading form, the basis on which the decision to replace the slabs was taken, the decision-makers, or the causal relationship between the pleaded defects and the decision. A history of advice and documents did not satisfy the requirement to state the case clearly. The amendment was therefore disallowed.
2. No mini-trial on amendment. The court applied the principle, supported by ED&F Man Liquid Products v Patel and Three Rivers District Council v Governor and Company of The Bank of England, that an amendment should not ordinarily be refused merely because detailed analysis might show that the claim could fail. That principle did not relieve the claimant of the obligation to provide proper particulars.
3. Limits imposed by the appellate decision. The proposed pleading had to avoid circumventing the Court of Appeal’s rejection of the steel-fibre complaint. The court could permit a causation case based on defects already pleaded, but not a reformulation which effectively revived the rejected cause of action.
4. Other amendments. The proposed allegation concerning inadequate floor levels was refused because it was not said to cause structural failure, was not clearly linked to the replacement decision, and was inadequately particularised. An amendment concerning missing saw cuts was permitted because it substantially replicated an existing allegation. The proposed thickness amendment was refused in its current form because it was unclear and inconsistent with the incorporated replacement-decision document.
5. Case management. Given the age of the proceedings, repeated opportunities to clarify the case, the likely delay and the need to advance the action to trial, further leniency was refused. The permitted amendments were limited to those identified in the judgment, with the loss claim to be redrafted so as to exclude replacement-related losses.

• High Court: Judge Stephen Davies allowed an amendment concerning the alleged absence of adequate steel-fibre content.
• Court of Appeal: On 1 May 2013, the Court of Appeal overturned that decision and rejected permission to add the steel-fibre claim.
• High Court (Technology and Construction Court): The court allowed a limited causation case based on already pleaded defects in principle, but disallowed the replacement-cost re-amendment and refused or limited the further amendments described in the judgment.