NORTHUMBRIA HEALTHCARE NHS FOUNDATION TRUST & Anor v LENDLEASE CONSTRUCTION (EUROPE) LIMITED & Anor

Applications to amend pleadings engage the overriding objective and require a balance between prejudice to the applicant, the opposing parties and other court users. The proposed amendment must be arguable, coherent and sufficiently particularised. Lateness is relative, but a very late amendment which threatens a fixed trial date carries a heavy burden. The applicant must explain the delay and demonstrate why justice requires permission.

Litigation privilege requires contemplated or existing adversarial litigation, communications produced for the dominant purpose of conducting it, and satisfaction of the evidential burden. Legal advice privilege similarly requires the dominant purpose of obtaining legal advice; in a corporation, the relevant employee must be tasked with seeking or receiving that advice. At an interlocutory stage, a privilege claim may be tested where the evidence shows a material error or omission.

The proceedings concerned alleged design and construction defects in a specialist emergency care hospital. The claim, involving multiple defendants and Part 20 parties, was valued at approximately £140 million and included substantial costs for temporary decant facilities.

At the fifth case management conference, the court considered applications by several parties to amend pleadings, revisions to the trial timetable, proposals for a split or phased trial, permission for expert valuation evidence, and an application for specific disclosure.

The central issues were whether the proposed amendments were sufficiently arguable and particularised, whether their lateness caused disproportionate prejudice or threatened the trial, how privilege applied to remedial planning documents, and what disclosure orders were appropriate.

1. Amendments. Permission to amend was granted in the applications under consideration. The court applied the overriding objective, balancing injustice to the applicant against prejudice to opponents and other litigants. The proposed amendments had to be arguable, coherent and properly particularised. An amendment with no real prospect of success would be refused.
2. Lateness was a relative concept, assessed by reference to the nature of the amendment, the explanation for its timing, duplicated work and consequential work. Where an amendment was very late and risked loss of a fixed trial date, the applicant bore a heavy burden to show the strength of the new case and why justice required permission. The amendments against Keppie were sufficiently clear, the delay was adequately explained by the complex and evolving litigation, and the trial could still proceed after a short postponement.
3. The proposals for a split trial and a two-phased trial were rejected. They risked substantial delay, increased costs and prejudice to the claimants and other parties. The trial was instead postponed by three weeks to 24 October 2022, with consequential adjustments to the expert timetable.
4. Privilege. The court held that the documents referred to in or attached to the Smailes emails attracted litigation privilege. Litigation was in contemplation after receipt of the pre-action protocol letter, the documents were produced for the workstreams of strategy meetings concerned with the contemplated litigation, and Mr Smailes was part of the instructing client responsible for seeking or receiving legal advice. Sharing the spreadsheet within that strategy team did not waive privilege.
5. Privilege claims must be established by the party asserting them. Assertions in witness evidence are not necessarily determinative, although at an interlocutory stage the court will ordinarily go behind them only where the evidence makes material error or incompleteness reasonably certain. No disclosure order was made for the unlocated Inspection/QA document. The defendants were ordered to disclose the relevant notebooks and files in hard copy, subject to review for privileged material.

Not an appeal. The judgment determined case-management, privilege and disclosure applications at first instance.