Michael Sarkesian & Anor v Hutton Construction Limited

Applications to amend a case and introduce further expert evidence are case-management decisions governed by the overriding objective. Where an application is made shortly before trial, would radically change the case, require consequential disclosure and evidence, and make the existing trial date impossible, the court may refuse it. The applicant must explain the delay and show appropriate realism and co-operation in pre-trial case management. A party’s loss of an opportunity to pursue a new argument does not outweigh the prejudice, delay and disproportionate cost where the issue could reasonably have been raised earlier. The successful party will ordinarily receive its costs, although the court retains discretion as to both entitlement and amount.

The claimants sought damages under a JCT construction contract for alleged defects in a flat lead roof at their property. They applied for permission to amend their Particulars of Claim to introduce a case that defective plywood, rather than inadequate ventilation, caused the roof failure, and to rely on a late expert report addressing plywood quality.

The application was made about five weeks before the listed four-day trial. Granting permission would have required the defendant to obtain responsive expert evidence and would have necessitated further disclosure and factual evidence. The central issues were whether the amendments represented a radical change of focus and whether the resulting disruption and prejudice were consistent with the overriding objective.

1. Application dismissed. The applications to amend the Particulars of Claim and to rely on the late expert report were refused.
2. Permission to amend pleadings and introduce expert evidence is a case-management decision exercised in accordance with the overriding objective and at proportionate cost. The court must consider fairness, the parties’ ability to prepare, delay, additional evidence and costs.
3. The proposed amendments changed the principal causation case from inadequate ventilation to substandard plywood. Although plywood was mentioned among a list of defects, the pleaded case, expert evidence and parties’ pre-trial correspondence had treated inadequate ventilation as the operative cause. The proposed amendments therefore represented a radical change of focus, not merely clarification.
4. Granting the application would inevitably have vacated the trial. The defendant would require its own timber-frame expert, further disclosure and factual witness evidence. The application was made very late, without good reason. The claimants had known, or could reasonably have raised, the issue substantially earlier.
5. Civil Procedure Rules 1998, r.1.3 requires parties to assist the court in furthering the overriding objective. That obligation requires a high degree of realism and co-operation in pre-trial case management. The prejudice, delay and disproportionate cost outweighed the claimants’ interest in pursuing the new causation argument.
6. The defendant was awarded the costs of the application on the standard basis. The court declined indemnity costs and summarily assessed the reasonable and proportionate costs at £50,000.