Co-Operative Group Ltd v Birse Developments Ltd

Under the amended overriding objective, the court must deal with cases justly and at proportionate cost. This requires particular attention to saving expense, expedition, compliance with orders and the proper allocation of judicial resources. An amendment may be refused even where its financial consequences could be addressed by a costs order, if the amendment would cause disproportionate costs, delay or prejudice. A party seeking a late and controversial amendment bears responsibility for foreseeable delay caused by the application and any appeal. Repeated failure to present the party’s real case promptly may justify refusing permission in order to protect the administration of justice.

The claimant sought permission for a further re-amendment of its particulars of claim to recover the cost of replacing warehouse floor slabs. Earlier applications had resulted in judgments by HHJ Stephen Davies, the Court of Appeal and Akenhead J. The Court of Appeal had refused permission to plead a replacement claim based on inadequate steel-fibre content. In June 2013, Akenhead J had indicated that a replacement claim causatively linked to already pleaded thickness defects might be permissible, subject to adequate particularisation.

The present application relied principally on slab thickness, together with supporting material concerning the decision to replace the floors. The defendants opposed it, relying on repeated amendments, delay, costs, prejudice and the requirements of the amended overriding objective. The central issue was whether permission should now be granted.

1. Application refused. The claimant’s application to re-amend was dismissed. The court considered that the proposed case could and should have been pleaded in mid-2012.
2. The amendments to Civil Procedure Rules 1998, Part 1, were substantive. The overriding objective required cases to be dealt with justly and at proportionate cost, including by saving expense, proceeding expeditiously, allocating appropriate court resources and enforcing compliance with rules and orders.
3. In applying that objective, the court could consider not only the costs of an amendment application but also the consequential costs likely to result if permission were granted. A costs order would not necessarily cure the prejudice where substantial costs would be irrecoverable, overall costs would become disproportionate, or delay and management burdens would materially affect the litigation.
4. The claimant was responsible for foreseeable delay arising from its late and controversial amendment applications and the appeal process which they generated. Its failure to plead its real case earlier had probably delayed trial by about two years and created a real risk to the current trial timetable.
5. Relevant prejudice included substantial unrecoverable costs, personnel and management time, the prolonged impact on individuals whose conduct was criticised, the use of judicial resources and harm to the administration of justice. The claimant had also failed to comply with conditions imposed on the earlier permission to amend, without good excuse.
6. The court did not criticise the claimant merely for failing to undertake steel-fibre testing earlier, and accepted that an alternative damages claim did not necessarily concede that replacement was unjustified. Nevertheless, weighing all the circumstances under the overriding objective, refusal of permission was fair and proportionate. The court encouraged the parties to agree a revised timetable for trial in November 2014.

• Court of Appeal: On 1 May 2013, in [2013] EWCA Civ 474, reversed HHJ Stephen Davies’s decision of 25 October 2012, reported at [2012] EWHC 3060 (TCC), and refused permission to re-amend.
• High Court (TCC): On 27 June 2013, in [2013] EWHC 1790 (TCC), Akenhead J granted conditional permission to advance a replacement claim linked to pleaded thickness defects. On 2 August 2013, permission was refused following non-compliance with the conditions.