Co -Operative Group Ltd v Carillion JM Ltd & Anor

Permission to amend a pleading or withdraw an admission is discretionary. The court must consider all the circumstances and give effect to the overriding objective. Relevant matters include good faith, prejudice, responsibility for any prejudice, the merits of the proposed issue, and the public interest in avoiding satellite litigation and disproportionate costs. The nearer an application is made to trial, the less likely it is to succeed. A party cannot ordinarily use a late change of legal representation or settlement arrangement to introduce a new case, withdraw substantial admissions, or recast causation without adequate explanation and supporting evidence.

The claimant brought proceedings concerning alleged defects in ground-improvement works for a supermarket floor. The defendant sought, shortly before trial, to amend its defence, including by withdrawing or modifying admissions and advancing new causation cases. The claimant separately sought permission to call a valuation expert in support of a diminution-in-value claim. The court also considered the procedural history, including earlier proceedings against the consulting engineer and settlements involving the third party.

The central issues were whether the proposed amendments were made in good faith, whether they caused prejudice and disruption, and whether the late expert application was sufficiently supported by a pleaded case.

1. Defendant’s amendment application. The application was refused except for unopposed amendments. Under CPR Part 1 and CPR Part 14.1(5), the court exercises a discretion concerning amendments and the withdrawal of admissions. The relevant principles identified in Sowerby v Charlton [2005] EWHC (Civ) 1610, approving the approach in Braybrook v Basildon Thurrock University NHS Trust [2004] EWHC 3352, require consideration of the whole circumstances and the overriding objective.
2. The court considered the good-faith requirement, the balance of prejudice, responsibility for prejudice, the prospects of success, the public interest in avoiding satellite litigation and disproportionate use of court resources, and the lateness of the application. The defendant’s proposed amendments substantially withdrew or qualified admissions previously made on expert advice and supported by a statement of truth. They appeared to reflect the third party’s newly adopted position following settlement and were not shown to represent the defendant’s own good-faith case.
3. The proposed amendments were also confusing, contradictory, inadequately particularised and unsupported by evidence. The timing would disrupt the trial preparation and expose the claimant to prejudice, including the need for further factual and expert evidence. The proposed new warehouse causation case was particularly late, factually unsupported and incapable of fair determination without additional evidence.
4. Valuation expert. The claimant’s application was refused. The claim was not pleaded by reference to market value and there was no properly pleaded case requiring valuation evidence. The application was made too late, would require further pleading and expert preparation, and would add disproportionate cost.
5. The parties subsequently settled the proceedings. The judgment was nevertheless handed down to provide guidance on the requirement of good faith where, following settlement, another party seeks to amend a pleading or withdraw admissions.

This was a first-instance decision of the High Court. The judgment records that earlier proceedings against John Allen were dismissed on 14 September 2010, while the present proceedings against the defendant had been stayed and later proceeded separately. The present procedural applications were determined at a pre-trial review.