TJD TRADE LIMITED v BAM CONSTRUCTION LIMITED

An amendment adding a further head of loss does not necessarily introduce a new cause of action. The court compares the essential factual allegations supporting the existing and proposed claims. Where the same contractual duties and breaches remain relied upon, additional facts concerning the consequences or recoverability of loss may remain part of the existing cause of action.

If the amendment would amount to a new claim, it may still be permitted under Civil Procedure Rules 1998, rule 17.4 where it arises from the same or substantially the same facts. Permission under rule 17.3 requires a discretionary balance between injustice, prejudice, the overriding objective and the need to determine the real dispute. A realistic prospect of success is sufficient; the court should not conduct a mini-trial.

The claimant sought permission under CPR 17.1(2)(b) to amend its particulars of claim in a contractual claim against the defendant. The existing claim concerned alleged failures in feasibility advice and planning documentation for a proposed building redevelopment.

The proposed amendment added approximately £730,000 of financing-related losses said to arise from delay. It also pleaded facts intended to establish that those losses were within the defendant’s contemplation and recoverable under the second limb of Hadley v Baxendale. The defendant argued that the amendment introduced a new, limitation-barred breach of contract claim and had no realistic prospect of success.

The central issues were whether the amendment added a new claim, whether it arose from the same or substantially the same facts, and whether permission should be granted under CPR 17.3.

1. The amendment was allowed. The proposed pleading added a further head of loss flowing from the contractual breaches already pleaded. It did not add or substitute a cause of action because the claimant continued to rely on the same contractual duties and breaches.
2. The essential factual allegations supporting the original and proposed claims must be compared. The addition of further loss, further particulars or consequential facts does not necessarily create a new cause of action. Although the proposed amendment required additional facts concerning financing arrangements and a meeting, those facts supported the alleged loss and its recoverability rather than identifying a new breach.
3. The defendant’s reliance on Manchester Building Society v Grant Thornton [2021] UKSC 20 did not alter that conclusion. The scope-of-duty and duty-nexus questions could provide substantive defences to the proposed loss, particularly for the negligence-based contractual claim, but they did not change the pleaded cause of action. For the other contractual terms, recoverability principally raised whether the loss was within the reasonable contemplation of the parties.
4. Even if the amendment constituted a new claim, it arose from the same or substantially the same facts for CPR 17.4 purposes. The defendant would already investigate the contract, the alleged breaches and events at the relevant meeting. The financing arrangements were a new factual area, but they did not require investigation of the principal issues afresh.
5. Under CPR 17.3, the court applied the overriding objective and balanced the injustice of refusing the amendment against prejudice to the defendant and other litigants. The amendment would not disrupt the trial timetable, and any additional work could be compensated in costs. Although the claimant gave an unsatisfactory explanation for delay, the greater injustice would result from preventing determination of the full dispute.
6. The proposed claim was not shown to have no realistic prospect of success. The relevant legal tests were complex, and the evidence did not establish that the financing terms were necessarily irrecoverable. The court therefore declined to conduct a mini-trial at the amendment stage.