England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		St. Dunstan's House Fetter Lane London, EC4
		1st June 2007

HIS HONOUR JUDGE PETER COULSON QC:

1. This is a building defects case. The claimants, Mr. and Mrs. Iggleden, make a series of claims against the defendant, Fairview New Homes (Shooters Hill) Limited arising out of deficiencies in their new home at 2 Cairns Mews, Oxley Gardens, Shooters Hill, London SE18 4JZ. The claim is estimated to be worth between £200,000 and £250,000. The trial is due start on 18th June 2007, which is 10 working days from today.
2. Unfortunately, there were delays in the preparation of this matter for trial, and at the PTR on 11th May, I spent most of the time making orders to ensure that the case could be brought back on track, so that the trial date could be met. Happily, I understand from what I have been told today by counsel that that timetable has been complied with and that, through the hard work of the experts, all of the various deadlines that I ordered on 11th May have been met. The matter is therefore on course for the trial to start on 18th June.
3. Also at the PTR on 11th May, the claimants made what has subsequently been referred to as an 'informal application' to amend their statement of claim to add a claim for 'blight'; that is to say, the residual diminution in value in the property following the completion of the necessary remedial works. The proposed amendment identified on that occasion was deficient, because the drafting included blanks. There was the further problem that there was no expert evidence to support the amendment, it being a claim which could only be made with the assistance of expert valuation evidence. For those reasons I rejected the application to amend on 11^th May.
4. By an application dated 24th May 2007, the claimants now seek to make a fully-pleaded amendment to their statement of claim to add the blight claim. The amendment reads as follows:

"14(v) Even after the said remedial works have been carried out there will be a diminution of some 5% in the market value of the said house. A significant structural repair to a modern new built house during the currency of an NHBC guarantee is unusual. The current market value of the said house is in the order of £370,000 and £375,000 (assuming no defects) and the diminution in value of the house has been assessed as being in the order of £20,000."

5. Together with that proposed amendment, there was a copy of a valuation report prepared by a Mr. C. G. Carey. The report is undated, but was not provided to the defendant until the service of the proposed amendment and the application to amend. This morning, I was provided with a further document which is described as appendix 3 to that report. On closer analysis, this does not appear to be a document to which any reference is made in the body of the report itself, but is instead an additional part of Mr. Carey's report, in which he identifies three other properties in the vicinity where he says diminution in value due to structural and other defects has been caused. That is a matter to which I return a little later. It is of course to be noted that this further expert material has been provided today, which is some three weeks after the pre-trial review, when the possibility of this amendment, and the absence of expert evidence to support it, were first trailed.
6. The relevant principles governing late amendments are discussed in the White Book in the commentary on CPR Part 17.3, particularly at paragraphs 17.3.5 and 17.3.7. Distilling those paragraphs, the following points emerge:

(a) "Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon, provided that any prejudice to the other party caused by the amendment can be compensated for in costs and the public interest in the administration of justice is not significantly harmed": see Peter Gibson LJ in Cobbold v. Greenwich London Borough Council (August 9th 1999, unreported, Court of Appeal).

(b) It is important that this principle is not elevated to the proposition that, since there is always prejudice when a party is not allowed to put forward its real case, all amendments should be allowed: Bowerbank v. Amos [2003] EWCA (Civ) 1161 (July 31, 2003, unreported, Court of Appeal).

(c) Where an amendment is sought close to the trial date, the court must consider whether the amendment would give rise to an adjournment of the trial or, even if it does not, whether it would put the parties on an unequal footing: see for example Woods v. Chaleff [1999] EWCA (Civ) 1522 and Morris v. The Bank of America National Trust and Savings Association (Amendment of Claim) [2002] EWCA (Civ) 425.

7. On behalf of the claimants, Mr. Coney submits that the blight claim is a discrete issue which is capable of being ready for hearing at the trial on 18th June. He says that, given the progress that the experts have made in relation to the other matters, the defendant will, effectively, have more time in which to deal with this new issue before the trial. Against that, Mr. Letman, on behalf of Fairview, argues that the application is made late for reasons which are the responsibility of the claimant, and that it is simply not possible for the defendant to be ready to meet this new allegation properly by the time of the trial. He also says that, in any event, if the amendment were allowed, the parties would be on an unequal footing.
8. There are three reasons why, in the exercise of my discretion, and in accordance with the principles that I have noted above, I consider that the application to amend should be refused. I outline each of those briefly below.
9. Firstly, as I discussed with Mr. Coney, there is no explanation of how and why this application is made so late, with just ten working days until the trial. This is particularly surprising given that, during the hearing on 11th May, I was informed that the blight claim had first been identified in a report provided to the claimants in July 2005. That was a year before the commencement of those proceedings. I do not know what happened to that advice or why that blight claim was not included in the original statement of claim. No explanation has been provided as to why the claim was not advanced then, but is now advanced so late.
10. Mr. Coney said that in the overall scheme of things this was a minor matter. I accept, of course, that in accordance with the principles noted above, the most important factor in the exercise of the court's discretion is the possible prejudice to the parties caused by a late amendment, and in particular whether or not that would lead to an adjournment of the trial. I do not, however, accept that the reason for the lateness of the application is a matter which is irrelevant to the exercise of the court's discretion. It is for a party seeking to make a late amendment to endeavour to explain how and why the amendment is being made so close to the trial date. The absence of any such explanation is therefore, I am bound to say, a factor which has weighed in the exercise of my discretion in this case.
11. Secondly, I am in no doubt that, if I allowed the amendment, Fairview would not be able to deal with this new allegation in the 10 working days that they have until the trial commences. The new allegation involves expert valuation evidence. It requires the valuer to understand what the nature of the remedial works might be and then to reach a view as to:

(a) the value of the property, assuming no defects and no remedial works;

(b) the value of the property, assuming both defects and full remedial works.

Such a report will inevitably take time to consider and prepare. It will itself then trigger a number of further steps that will need to be taken. On the face of it, there is simply not the time for Fairview to undertake all of the necessary steps in relation to the blight issue, and also prepare the rest of the case for trial.

12. I accept Mr. Letman's submission that the claimants have underestimated the work necessary to deal with this (albeit discrete) issue. It seems to me that the following would have to be done within the next 10 days if the defendant is to be ready to deal with the issue at trial:

(a) The defendant would need to find an expert with the requisite local knowledge, who is able to act at short notice, and who of course is available for the trial.

(b) The defendant would need to instruct that expert in relation to this case. That would be a relatively extensive exercise, given the vast number of existing reports and joint reports which exist relating to this property.

(c) The expert would need to investigate the valuation issues himself. He will need to look at appropriate comparables in order to arrive at a valuation figure for the property.

(d) He will also need, as an entirely separate exercise, to investigate the three properties, which are relied on as examples of diminution in value due to structural or other defects, which were identified in the so-called appendix 3 provided to the court this morning. That of itself is a task that will take some time to perform.

(e) The expert will then need to produce a draft report which can be discussed with Fairview.

(f) The report would need to be finalised and exchanged with the claimants.

(g) Fairview would then need to amend their defence in the light of the report which had been provided to them.

(h) The valuation experts would then need to meet in order to see the extent to which they could agree matters and to identify those matters on which they could not agree.

In my judgment, those various steps only need to be set out to demonstrate that it is simply unrealistic to say that they could be done in 10 days.

13. My view that those matters could not be accomplished in that time is, I think, confirmed by the fact that the delays on the claimants' own side make clear that this is not a matter that can be dealt with simply and quickly. First, of course, there is the point that it took them two years to try and make this claim at all. Secondly, it took them 13 days, from 11th May to 24th May, to make the application on the basis of an accompanying expert's report. It took another 7 days for the important further part of the expert's report, appendix 3, to be provided. Taking into account all of that time, it is, I suggest, fanciful to imagine that the defendant can be ready to deal with all of those matters in the remaining 10 working days before the trial.
14. Thirdly, even if I was wrong and the trial did not have to be adjourned, I consider that, if I allowed the amendment, I would place the parties on a wholly unequal footing during the critical fortnight leading up to the trial. The claimants would not need to concern themselves any further with the blight claim. The defendant, on the other hand, would have to spend a disproportionate amount of time seeking to accomplish the steps referred to at paragraph 12 above. It seems to me that that would inevitably create detriment to the defendant's trial preparation; therefore, it would be unjust, and contrary to the overriding principle, to allow the amendment at this late stage.
15. For those three reasons, therefore, I reject the application to make the late amendment to add the blight claim to the statement of claim.
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