CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd EIC Ltd (Third Party) Kone Plc (Fourth Party) DLG Architects LLP (Fifth Party) Damond Lock Grabowski & Partners (A Firm)(Sixth Party)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson,The Hon Mr Justice Coulson |
| Judgment Date | 21 May 2015 |
| Neutral Citation | [2015] EWHC 1345 (TCC) |
| Docket Number | Case No: HT-13-390 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 21 May 2015 |
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[2015] EWHC 1345 (TCC)
The Honourable Mr. Justice Coulson
Case No: HT-13-390
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Rolls Building, Fetter Lane,
London, EC4A 1NL
Andrew White QC, Frances PigottandMischa Balen (instructed by Squire Patton Boggs) for the Claimant
Adam Constable QC and Richard Coplin (instructed by CMS Cameron McKenna) for the Defendant
Joanna Smith QC and Michael Wheater (instructed by Plexus Law) for the Third Party
Kate Livesey (instructed by Norton Rose Fulbright) for the Fourth Party
Fiona Sinclair QC and Siân Merchandani (instructed by Mills and Reeve LLP) for the Fifth and Sixth Parties
Hearing Date: 11 May 2015
Approved Judgment (No.3) AMENDMENTS
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
JUDGMENT (No. 3) / AMENDMENTS
INTRODUCTION
The Claimant is the owner of Broadway Plaza ("the Development") in Birmingham. In these proceedings, it brings claims against the defendant, pursuant to a warranty agreement dated 14 April 2005, in respect of alleged defects in the Development. The defendant, who was the design and build contractor, makes additional claims against the third party (the mechanical and electrical sub-contractors); the fourth party (the suppliers of the escalators and lifts); and the fifth and sixth parties (the architects).
By applications dated 20 April and 30 April 2015, the claimant seeks to amend its particulars of claim and the lengthy schedules attached to them. The amendments are voluminous. However, the parties were able to categorise them in this way: category 1 consisted of the amendments relating to the remedial scheme, and therefore the quantum of the claim; category 2 concerned the addition of further allegations of breach, which generally related back to the breaches already pleaded; and category 3 concerned two new claims, one in respect of the car park smoke ventilation system, and one in respect of alleged defects in the roofs. As explained in more detail below, the parties were able to reach agreement in respect of the amendments in categories 1 and 2, subject to a significant shunt in the timetable leading up to the trial. The two new claims in category 3 are disputed.
For reasons of time, it was not possible to give a full extempore judgment at the conclusion of the hearing. I gave a short oral ruling in which I explained why I declined to give permission for the category 3 amendments. I said that a full Judgment would be provided in due course.
I set out in Section 2 below the consequences of the amendments in categories 1 and 2. Then, moving on to consider the new claims in category 3, I summarise the relevant principles of law ( Section 3 below), before dealing with the smoke ventilation amendments ( Section 4 below), and the roof amendments ( Section 5 below).
CATEGORIES 1 AND 2
As I have said, category 1 consisted of the amendments relating to the remedial scheme, and category 2 related to the further allegations/clarifications in respect of the case on breach. Because ultimately no objection was taken to those two categories of amendments, it is unnecessary for me to consider them in any great detail. However, what is important is the consequences of those amendments on the timetable for trial, because that is the background against which the contested amendments in category 3 have to be considered.
This is a case with an unhappy procedural history. The pre-action protocol letter was written as long ago as 2011. The pre-action protocol process was extremely drawn out and, at an earlier hearing, Ramsey J noted that, within it, there had been a 17 month period where the claimant had done nothing to progress the claim. Eventually, these proceedings were started on 23 October 2013. Again, however, matters proceeded slowly and it was not until the case management conference before me on 3 October 2014 that a realistic timetable was set, leading up to a trial on 18 January 2016.
One of the problems that was identified at the CMC on 3 October was the very high level of costs which the claimant had incurred and anticipated that it would incur in the future. That gave rise to a dispute as to whether costs management was appropriate in this case, the claimant contending that it was not. I ruled against the claimant in my first judgment ( [2014] EWHC 3546 (TCC)). A whole day was then set aside to deal with the costs budgets themselves. This was principally because the claimant's total figure was so high, at over £9 million, that it attracted copious criticism from both the defendant and the additional parties. I upheld much of that criticism, and reduced the claimant's budget by a figure in excess of £4 million in my second judgment in this case at [2015] EWHC 481 (TCC).
At the CMC, leading counsel then appearing for the claimant informed the court and the other parties that there were no plans to amend the claim. However it appears that, ever since that date, the claimant has indeed been working on these detailed amendments. Despite that, the amendments in categories 1 and 2 were not provided to the defendant and the additional parties until last month. As already noted, the formal applications were not made until 20 April and 30 April 2015.
The amount of work necessary on the part of the defendant and the additional parties to understand, investigate and respond to the amendments in categories 1 and 2 is formidable. I do not set out in this Judgment the detailed evidence in respect of those matters but I have in mind in particular sections 5 and 6 of the witness statement of Mr Davis for the defendant, and paragraphs 40–58 of the statement of Mr Wicks, for the third party.
Ultimately, the amount of work involved in dealing with the amendments in categories 1 and 2, at a time when the pleadings had otherwise closed and disclosure had taken place, is best seen in the revised timetable proffered by Mr Davis at paragraph 6.11 of his statement. There he sets out his proposed adjusted dates for the new pleadings, the witness statements, the experts' meetings and the experts' reports. That revised timetable was subsequently agreed by all parties, including the claimant.
It is a timetable which contains absolutely no room for manoeuvre. For a trial at the start of the new term in January 2016, it postulates the reopening of the pleadings, with completion of all amendments by 11 September 2015; witness statements being exchanged on 2 October 2015; experts to meet and produce a joint statement by 6 November 2015; and experts' reports being exchanged on 27 November 2015. As I made plain at the hearing, I consider those to be 'last-gasp' dates. They cannot be extended without necessitating an adjournment of the trial date.
Indeed, in Mr Davis' original proposal, there was provision for supplemental experts' reports to be exchanged on 4 December 2015 and the pre-trial review to take place on 11 December 2015. I made clear at the hearing that I could not countenance either of those proposed directions. A pre-trial review immediately before the Christmas vacation, with the trial starting immediately after it, is simply too late to be a meaningful hearing. Furthermore, the whole point of experts' meeting and producing their joint statements before they provide their reports is so that those reports can be confined to those matters which are in dispute. This obviates the need for a further round of supplemental reports. However, it was only those modifications (a PTR in early December and no supplemental reports) which ensured that the adjusted timetable could still lead to the trial date of 18 January 2016.
I am in no doubt that it is in the parties' best interests, and in accordance with the overriding objective, that the trial takes place on 18 January 2016, and that no question of its adjournment should even be entertained. Of course there are the usual reasons for that, including the importance of certainty for the parties and the need, where at all possible, to maintain the court's lists, because of the impact of adjournments on other court users. But in the present case, there is a particular imperative in requiring the trial to go ahead on the fixed date. I have already referred to the cost management disputes in this case. The costs are already far higher than I would have wished. Any adjournment of the trial date would increase those costs significantly, and any semblance of proportionality would then be lost. Accordingly, I have approached the disputed amendments on the basis that, whatever else happens, it is critical that the trial date of 18 January 2016 be maintained. No party sought to dissuade me from that approach.
THE LAW
I was provided with a lever arch file which contained 20 authorities relating to amendments. A large number of those cases were referred to during the oral hearing. It is, I think, unnecessary for me to set out large chunks of the judgments in those cases. Instead I will cut to the chase and summarise the principles which are now applied in The Rolls Building to disputed applications to amend.
In my view, the traditional approach outlined by Peter Gibson LJ in ( Cobbold v Greenwich LBC 1999 unreported), to the effect that "[a]mendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any...
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