Lendlease Construction (Europe) Limited v AECOM Limited & Anor.

Permission to amend pleadings is discretionary and must be exercised in accordance with the overriding objective. The usual costs order may be displaced where amendments are required by genuinely new information which could not previously have been pleaded. Where amendments effectively discontinue claims, the default costs rule for discontinuance ordinarily applies, and pragmatism alone is insufficient to displace it.

A late contribution claim will generally require full particularisation. Where it introduces a new cause of action, new duties and breaches, and new facts, it is a new claim for Civil Procedure Rules 1998, rule 17.4 purposes. If the limitation period may have expired, permission to amend may be refused, particularly where delay and inadequate pleading cause prejudice.

The claimant applied shortly before trial to amend its Particulars of Claim in several colour-coded categories. Some amendments reflected a recently handed-down judgment in related proceedings, some relied on newly disclosed material, some abandoned claims, and one introduced a proposed contribution claim under the Civil Liability (Contribution) Act 1978.

The defendants consented to some amendments but disputed costs, particularisation, evidence, discontinuance procedure and limitation. The central issues were whether permission should be granted, what procedural directions were necessary, and who should bear the resulting costs.

1. Disposition. Permission was granted, subject to directions, for the amendments which were consented to or sufficiently justified, including the yellow, blue, green, pink and revised red amendments. Permission was refused for the orange amendments introducing the proposed contribution claim.
2. Costs of amendments. The usual order that the amending party pay the costs was not inevitable. Applying the approach in Various Claimants v MGN [2021] EWHC 771 (Ch), the yellow amendments substantially flowed from genuinely new material arising from the related judgment or repeated existing pleaded material. Their costs were therefore costs in the case. The blue amendments were different: they introduced new factual allegations, were not promptly pleaded, and required the defendants to revisit evidence. The claimant was ordered to pay those costs.
3. Discontinuance. The green and pink amendments abandoned claims. Although the court did not require a formal notice of discontinuance, the principles in Galazi v Christoforou [2019] EWHC 670 (Ch) and CPR 38 applied. Under CPR 38.6, the claimant was liable for the defendants’ costs. No unusual circumstances justified departure from that default rule, and pragmatism was insufficient.
4. Red amendments. The claimant could rely on the related judgment only through a clear and confined pleading. The judgment and evidence from those proceedings were not evidence in the present action, and the defendants were not bound by findings made there. Technical findings could potentially be considered but would not bind the trial judge.
5. Orange amendments. The proposed contribution claim was inadequately particularised, including because it identified no specific contractual obligations or breaches and no pleaded allegation of the same damage. It was also a new cause of action based on new duties, breaches and facts, and therefore did not satisfy CPR 17.4. The application was late, and delay and lack of particularisation independently justified refusal. The court declined finally to determine whether the collateral warranty had extinguished the claim by limitation.