CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd & Ors

Permission for late amendments is governed by the overriding objective of dealing with cases justly and at proportionate cost. Lateness is relative and depends on the amendment’s history, content and procedural consequences. An amendment which threatens the trial date is very late, even when proposed months beforehand, and attracts a heavy burden of justification.

Relevant considerations include the explanation for delay, clarity and particularity, and prejudice to both sides. Compensation in costs does not exhaust the prejudice to resisting parties. An applicant’s responsibility for delay reduces the weight of its own prejudice. The need to adjourn a trial may be an overwhelming reason for refusal. The possibility of fresh proceedings does not compel permission for an otherwise inappropriate amendment.

CIP Properties (AIPT) Limited owned Broadway Plaza in Birmingham. It claimed against Galliford Try Infrastructure Limited, the design and build contractor, under a warranty concerning alleged defects. The contractor brought additional claims against EIC Limited, the mechanical and electrical subcontractor; Kone PLC, the supplier of lifts and escalators; and the architects, DLG Architects LLP and Damond Lock Grabowski & Partners.

The owner sought extensive amendments to its particulars of claim and defects schedules. Amendments concerning remedial works, quantum and existing allegations of breach were agreed, subject to a revised timetable which left no room for further delay before the fixed trial. Two proposed new claims, concerning car park smoke ventilation and roof defects, remained contested.

The court considered whether those new claims should be permitted after pleadings had closed and disclosure had been completed. The issues included the explanation for delay, the adequacy of the proposed pleadings, prejudice arising from an adjournment and the significance of possible fresh proceedings.

Permission for the contested smoke ventilation and roof defects amendments was refused. The agreed amendments concerning remedial works and existing breaches required a compressed timetable which could only just preserve the fixed trial date.

1. The overriding objective, including proportionality, supplied the starting point. The traditional approach in Cobbold v Greenwich LBC, favouring amendments whenever prejudice could be compensated in costs, was no longer appropriate. Under Hague Plant, lateness was relative. Amendments could be late because they could have been advanced earlier, duplicated work or reopened completed procedural steps. Under Swain-Mason, an amendment threatening the trial date was very late and required substantial justification, even months before trial. The court applied the balancing considerations identified in Brown: history and explanation, prejudice to each side, and clarity and particularity.

2. The smoke ventilation claim had deliberately been omitted when proceedings began. The assertion of accidental omission lacked particulars and was inconsistent with the restructuring and checking of the pleaded ventilation case. Even an avoidable mistake would not provide a good reason for delay. There was also no explanation for the further six-month delay after the alleged omission became apparent. The proposed pleading inadequately identified the contractual standards and breaches. Its remedial case remained dependent on further investigations.

3. The roof problems had been known before proceedings began and were substantial by September 2014. The delay until April 2015 was unexplained. The proposed pleading lacked particulars linking the alleged defects to contractual breaches and water ingress. Further investigation was required, and the pleading represented the beginning of a pleading process.

4. Either new claim would necessitate adjournment of the trial. That was the most important factor against permission. Given the costs already incurred, an adjournment would destroy proportionality. The applicant’s inability to advance the claims carried reduced weight because the delay was its own responsibility. Risks to the contractor’s claims against other parties were additional considerations, but no irretrievable limitation prejudice was established and the relevant limitation questions were left undecided.

5. The possibility of fresh proceedings did not override the objections to amendment. There was a strong prima facie case that a separate smoke ventilation action would encounter the rule in Henderson v Henderson, since the claim could and should have been advanced originally and had deliberately been omitted. The roof claim raised a less strong, but still prima facie, abuse objection. These were provisional observations rather than final determinations of any fresh action. Whether the smoke ventilation claim had formally been discontinued was also left undecided.

• High Court (Technology and Construction Court): In the present judgment, permission for the contested smoke ventilation and roof defects amendments was refused. The agreed amendments required a revised timetable preserving the fixed trial date.
• High Court (Technology and Construction Court): In [2015] EWHC 481 (TCC) , the claimant’s costs budget was reduced by more than £4 million.
• High Court (Technology and Construction Court): The case management conference on 3 October 2014 fixed trial for 18 January 2016. In [2014] EWHC 3546 (TCC) , the court rejected the claimant’s contention that costs management was inappropriate.