Salter Property Investments Limited v PCL Planning Limited & Anor

Permission to amend a statement of case should be determined by applying the overriding objective and the court’s broad discretion under the Civil Procedure Rules 1998. Where an amendment merely particularises an existing claim, the real-prospect-of-success threshold for a new claim does not apply. Even where the amendment is treated as new, the court should avoid a mini-trial and refuse permission only where the proposed case plainly lacks a real prospect of success. A fact-sensitive question of statutory construction, accepted by the parties as a matter for trial, should not ordinarily be determined summarily on an amendment application.

The claimant brought a professional negligence claim against planning consultants and a planning barrister concerning advice on whether an office building fell within the curtilage of a listed building for the purposes of permitted development rights. The claimant sought permission to amend its allegations against the barrister after he withdrew an apparent admission concerning the relevance of ownership, use and functional connection at the date of the planning application.

The barrister opposed the amendment on the basis that the proposed case had no real prospect of success. The central issues were whether the amendment advanced a new claim and, if so, whether it satisfied the applicable threshold.

1. Amendment as particularisation. The proposed amendment was effectively a particular of the existing negligence case. The claimant’s existing case required it to establish that a competent barrister should have considered the date of the prior approval application relevant. The alternative allegation that the barrister should have advised of a significant possibility that this was so was a step towards establishing that case, not a new cause of action.
2. Applicable threshold. Accordingly, the real-prospect-of-success test did not apply. This followed the approach explained in Scott v Singh [2020] EWHC 1714 (Comm). The court nevertheless considered the position alternatively. The proposed pleading was coherent, and the agreed evidence that the Curtilage Question was a matter for trial was sufficient to show that the amended claim was supported by evidence.
3. No summary determination of the Curtilage Question. The court should not pre-empt the trial judge’s determination of the statutory construction issue. The legal question required the benefit of the full evidence and detailed argument. The material relied upon made it more than fanciful that the barrister had considered the current ownership and functional use of the buildings relevant, and therefore arguable that he should have addressed that matter in his advice.
4. Risk advice. Applying the approach in Barker v Baxendale-Walker Solicitors [2017] EWCA Civ 2056, the court declined to decide summarily whether the barrister’s duty included advising on the risk or possibility that an alternative statutory interpretation was correct. That was a fact-sensitive issue for trial.
5. Permission was granted for the proposed amendments to paragraph 23(i) of the Re-Amended Particulars of Claim.