DPM Property Services Ltd v Emerson Crane Hire Ltd

An appellate court will interfere with a case-management decision where the first-instance judge erred in law, failed to consider relevant matters, or reached a decision outside the permissible range. Applying the three-stage approach in Denton v TH White, an unexplained and substantial delay in serving new expert evidence may justify excluding it, particularly where the opposing party faces serious prejudice before a fixed trial. A debarring order covering alleged defects and the cost of remedial work may prevent a party from introducing substantially new quantum evidence. A pleaded sum is not necessarily a cap where later pleadings address quantum, but any increase must be made promptly and, where necessary, by amendment in accordance with the Civil Procedure Rules 1998.

The claimant appealed against case-management orders made at a pre-trial review in proceedings concerning defective building work at Freshwater Road and Fairlawns Close. The orders permitted the defendant to rely on a new quantum expert report and to advance losses totalling £332,671.34, while limiting any recovery to the originally pleaded sum of £160,175 plus VAT.

The appeal concerned whether the report was barred by an earlier order, whether the losses had already been particularised, whether the delay in producing the report was acceptable, and whether the pleaded sum could properly operate as a cap.

1. Appeal allowed. Permission to appeal was granted. The defendant was not permitted to rely on the new report of Mr Woods dated September 2017.
2. Case-management decisions attract a high threshold on appeal. The appellate court does not substitute its own discretion merely because it would have reached a different conclusion. Intervention is justified where the judge misdirected himself, failed to consider relevant matters, considered irrelevant matters, or reached a plainly wrong decision outside the generous ambit of reasonable disagreement, as explained in Broughton v Kop Football (Caymen) Limited and Abdulle v Commissioner of Police of the Metropolis.
3. The delay issue was considered afresh because the first-instance judge gave no reasoned ruling. Applying the three stages in Denton v TH White, the failure to provide the report for almost ten months was serious and significant, there was no reason for it, and admitting it shortly before trial would cause substantial unfairness. The application should therefore have been refused.
4. The earlier debarring order extended to the cost of remedial work as well as the alleged defects. Even on the defendant’s narrower construction, new figures required a prompt application under the Civil Procedure Rules 1998, which had not been made. The defendant had not particularised the additional losses.
5. The originally pleaded sum was not properly treated as a cap. However, that conclusion did not justify admitting new evidence at the last minute. The judge’s inconsistent treatment of the earlier and later expert reports was wrong in principle or constituted a serious procedural irregularity. The overriding objective required protection of the claimant from irredeemable prejudice.

• High Court (Technology and Construction Court): Appeal from case-management orders made at a pre-trial review on 25 October 2017. Appeal allowed and permission to rely on the new quantum report refused.