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

Permission to make a late amendment is determined by the overriding objective, including the need to deal with the case justly and at proportionate cost. Costs will not ordinarily compensate a party for serious disruption caused by a late reformulation of the case.

Lateness is relative. An amendment is very late where it threatens a fixed trial date, duplicates substantial work, or requires completed steps in the litigation to be revisited. The applicant must provide a good explanation for delay and a clear, particularised pleading. Where unexplained and inadequately pleaded new claims would require an adjournment of a lengthy trial, the resulting prejudice and disproportionate costs may justify refusal, notwithstanding prejudice to the applicant.

The claimant, owner of a Birmingham development, sued the design-and-build contractor under a warranty for alleged construction defects. The contractor advanced related claims against subcontractors, suppliers and architects.

The claimant sought extensive amendments. Categories 1 and 2, concerning the remedial scheme and further allegations of breach, were unopposed subject to a revised timetable. Category 3 sought to add new claims concerning the car-park smoke ventilation system and roof defects. The central issue was whether those new claims should be permitted shortly before a fixed six-to-eight-week trial.

Disposition. The category 3 amendments were refused. Categories 1 and 2 could proceed on the agreed revised timetable, which left no scope for further delay without adjournment of the January 2016 trial.

1. Applicable approach. The former assumption that amendments should ordinarily be allowed if prejudice can be met in costs is not the correct starting point. The court must apply the overriding objective and assess lateness, the explanation for it, the clarity of the proposed pleading, and prejudice to both sides. Lateness is relative. An amendment may be very late even months before trial if it threatens the trial date or requires completed litigation steps to be redone.
2. Smoke ventilation claim. The claim had been removed from the pleaded case after the pre-action stage. The claimant gave no acceptable explanation either for that omission or for the further delay after the alleged omission was discovered. The proposed pleading required substantial further particularisation and investigation. Its admission would inevitably adjourn the trial, causing disruption and disproportionate further cost. Those considerations decisively outweighed the claimant’s prejudice in being unable to pursue the claim in these proceedings.
3. Roof-defects claim. Roof leaks had been known for a substantial period, potentially before proceedings began, yet no adequate explanation was given for waiting until April 2015 to seek amendment. The proposed claim was a preliminary and insufficiently particularised pleading which required further investigation. It too would make the fixed trial date impossible. The same balancing exercise therefore required refusal.
4. Fresh proceedings. The possibility that the claimant might bring separate proceedings did not compel permission to amend. The court also considered there to be a strong prima facie case that a later smoke-ventilation claim, and potentially a roof-defects claim, could be barred as an abuse under Henderson v Henderson [1843] 3 Hare 100, because the claims could and should have been advanced in the existing litigation. No final ruling on that issue was necessary.

not stated in the judgment.