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

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/10/2013

The Honourable Mr Justice Stuart-Smith:

1. The OCENSA pipeline was constructed in and from late 1995 and passes through parts of Colombia that have been and remain extremely dangerous because of the activities of criminal gangs connected with the drugs trade. The pipeline also passes through a significant number of different farms owned by Colombian citizens. Those responsible for the installation of the pipeline entered into agreements with the landowners which included provision for compensation for damage that might be caused. However, in the wake of the construction of the pipeline many landowners considered that they had not been adequately compensated for the loss and damage it had caused to their land and livelihoods. In circumstances that do not matter for present purposes, the Colombian claimants came to be represented by English lawyers of the highest calibre and experience, Messrs Leigh Day ["Leigh Day"], and the decision was taken to bring claims in England against the present Defendant, an offshoot of BP that had been involved in the construction of the pipeline. The Defendant also instructed lawyers of the highest calibre and expertise, Messrs Freshfields Bruckhaus Deringer LLP ["Freshfields"].
2. A first group of claimants brought claims that were settled by mediation in about 2006. The present series of claims were intimated by a letter from Leigh Day to the Defendant on 23 May 2007. Proceedings were issued on 29 January 2008. A GLO was made on 24 September 2008. From then until the summer of 2013 the litigation was managed in the Queen's Bench Division by the Senior Master. There are now ten Lead Claimants chosen from a cohort of over fifty. The Lead Claimants' properties range from 13^[1] to 338^[2] hectares, most being less than 100 hectares.
3. It is common ground that, subject to proof of liability, the substantive law of Colombia determines what heads of damage may be recovered while the procedural law of England determines the assessment and quantification of those heads of damage: see Harding v Wealands [2006] UKHL 32.
4. In mid-2012 the Claimants served Revised Schedules of Loss and Damage for each of the Lead Claimants. Under the heading "General Damages", the schedules included claims for "Cost of Reinstatement", "Moral Damages" and "Loss of Amenity/Quality of Life". The Defendant accepted that the pleading of claims for Moral Damages and Loss of Amenity/Quality of Life was adequate and that they could be pursued; but it objected to the admission of the proposed claim for Costs of Reinstatement.
5. In December 2012 the Senior Master gave judgment directing that the litigation should be transferred to the TCC and refusing permission to the Claimants to advance the claim based upon the cost of reinstating their land ["the 2012 Judgment"]. That judgment forms an integral part of the context for the present applications. It should be read by anyone who wishes to follow the intended sense of this judgment. The essence of the Senior Master's reasoning was that the claim for reinstatement costs had not previously been intimated and was being brought too late for it to be accommodated without irremediable prejudice being caused to the Defendant. His judgment was not appealed by the Claimants, so that the parties are bound by the decision to exclude the claim based upon the cost of reinstating their land. I do not consider myself formally bound by the narrative and reasoning contained in the 2012 Judgment, though it is entitled to considerable weight given the Senior Master's detailed personal knowledge of the history of the proceedings. However, having reviewed it for the purposes of the present applications, I endorse and adopt the history of the proceedings as set out in the 2012 Judgment and endorse the reasoning that the Senior Master gave in reaching his conclusion that the claim based upon reinstatement costs should not be permitted to proceed.
6. On 15 February 2013, after giving his judgment on reinstatement costs, the Senior Master directed that the Lead Claimants should provide the Defendant "with a written statement which sets out their case as to how they will contend for general damages in respect of damage to their properties". Pursuant to that order, the Lead Claimants first served a short statement on 8 March 2013 and then served Further and Better Particulars of the Claims for General Damages dated 24 April 2013 ["the F&BPs"]. The F&BPs run to 43 pages of which 11 may be described as generic and 32 as specific to each Lead Claimant in turn. They provoked the Defendant to issue the first application that is now before the Court.
7. The application was issued on 15 July 2013. By it the Defendant seeks an order that:

"1. The Claimants require the permission of the Court to include a claim for general damages as set out in the Further and Better Particulars of the Claims for General Damages dated 24 April 2013;

2. The Claimants are refused permission to include the claim for general damages as set out in the Further and Better Particulars of Claims for General Damages dated 24 April 2013;

Alternatively, 3. The Claimants' claim for general damages as set out in the Further and Better Particulars of the Claims for General Damages dated 24 April 2013 be struck out;

Alternatively, 4. There be summary judgment on the Claimants' claim for general damages as set out in the Further and Better Particulars of the Claims for General Damages dated 24 April 2013. "

8. The application is supported by the 7^th Statement of Mr Isted, the Defendant's solicitor. In opposition, the Claimants served the 16^th Statement of Ms Srinivasan, the partner at Leigh Day having care and conduct of the litigation on behalf of the Claimants.

Issue 1: Do the Claimants require permission of the Court to include a claim for general damages as set out in the F&PBs?

Pleadings and Amendments

9. Mr Layton QC, Leading Counsel for the Claimants, submitted that the purpose of statements of case is not to articulate and develop legal arguments but is to set out material facts. That is, in my view, an incomplete statement of the purpose of statements of case. While I accept that one function is to set out the material facts upon which the party relies, it must now be axiomatic that the purpose of statements of case is to "enable the court and the parties to identify and define the real issues in dispute."^[3] That was so before the introduction of the CPR, and was reinforced by the changes that were introduced in the light of Lord Woolf's recommendations. Specifically, one of the principles that led to the introduction of pre-action protocols was that letters of claim and pre-action exchanges of information should become the norm so as to enable disputes to be defined and, if possible, settled before litigation was commenced. While there may be cases, of which this is one, where not all issues can be fully defined at the outset, the principle is clear: the parties are to define and address the issues in dispute as soon as reasonably possible. The Court is required to take a direct interest in the achievement of this end: CPR1.4(2)(b) provides that the Court must further the overriding objective by actively managing cases, which includes "identifying the issues at an early stage." To the same end CPR16.5(1) requires the defendant to state which of the allegations in the particulars of claim he denies, which allegations he is unable to admit or deny, but which he requires the claimant to prove, and which allegations he admits. CPR16.5(2) goes further by requiring that where a defendant denies an allegation he must state his reasons for doing so and, if he intends to put forward a different version of events from that given by the claimant, to state his own version. By these provisions, the rules attempt to ensure that both the parties and the Court can identify the matters in dispute with which they have to deal. That is necessary for the furtherance of other aspects of the Overriding Objective, including ensuring that the parties are on an equal footing, saving expense and ensuring that litigation is dealt with expeditiously and fairly.
10. Seen in this light, the necessity for amendments arises where a party wishes to raise or pursue an issue which the existing pleadings do not accurately and fairly identify for the Court and the other party. The touchstone should be whether the existing pleadings identify the issue with sufficient particularity to enable the opposing party to understand the case it has to meet so that it can take appropriate steps to prepare to meet it (which may include accepting that it is well founded, assessing and pursuing the prospects of settlement, attempting to defeat it, or any variation on these themes) and, if necessary, to enable the Court to rule on the issue in due course. This is clear from the well-known observation of Peter Gibson LJ in Cobbold v LB Greenwich [1999] EWCA Civ 2074 that:

"Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon… ." [Emphasis added].

11. It has long been well established that a party bringing forward amendments should formulate them with clarity. This is particularly so when the amendment is made late, but is of general application. Thus in Hyams v Stuart King [1908] 696, 724 Farwell LJ gave guidance, which is as apt in the post-CPR twenty-first century as it was at the start of the twentieth^[4]:

"… it is the duty of the Plaintiff's counsel, a duty which ought to be enforced by the judge, when he asks for an amendment which raises a fresh issue or a fresh cause of action, to formulate and state in writing the exact amendment that he asks, in justice to the defendant, in order that he may know exactly the new case that he has to meet, and to the judge in order that he may know exactly what he is asked to try, and to the Court of Appeal in order that they may know what has been tried and decided."

12. Particular attention is often given to amendments that are brought forward "late", including those brought forward for the first time at trial. At this stage it is only necessary to point out that "late" is an elastic and relative term when applied to the timing of proposed amendments. What will matter when it is asserted that a proposed amendment is or is not "late" is whether or not the allowing of the amendment would have an adverse impact on the fairness of the proceedings. In many cases there will be a tension between the Court's instinctive wish to allow the real issues that exist between the parties to be brought forward for decision and its concern that to introduce an issue will be unfair, particularly where any disadvantage to the opposing party will be irremediable and cannot be remedied by an appropriate order for costs. In all such cases a balance must be struck.

General and Special Damages

13. As will appear in greater detail below, the Claimants assert that the matters they wish to pursue are to be described as "general damages" or "damages at large." I doubt the usefulness of either term when considering whether or not an amendment is required or should be granted. The terms "general damage" and "general damages" are capable of more than one meaning, depending on context. They can be used to denote damage falling within the first rather than the second limb of Hadley v Baxendale. In other contexts they may be used to indicate the nature of the proof that is required to give rise to an entitlement to recover. Where that use is intended, general damages are usually (but not always) used to denote non-pecuniary losses which are not susceptible to precise calculation (such as damages for pain, suffering and loss of amenity in personal injury actions); but losses which are essentially pecuniary may be included (as with damages for loss of profits attributable to passing off). A third distinction has historically been associated with pleading practice, with "special damages" requiring to be pleaded with sufficient particularity to demonstrate the calculation that underpins the claim while "general damages" merely require a general averment, with quantification being left to the judge or jury. An obvious example of this use of the terms is again to be found in personal injury pleadings where a Claimant conventionally asserts a claim for damages for pain suffering and loss of amenity without quantifying it but is required to provide greater detail in respect of an alleged loss of earnings or other financial losses.^[5]
14. None of these conventional uses of the terms will generally inform the question whether or not an amendment is required. This is at least in part because the various uses are themselves elastic. In my judgment, the level of precision that is required when pleading an issue or case, including a particular head of damages, should be determined by the need to provide a fair and sufficient indication to the Court and the opposing party of the case that is being brought and that the opposing party has to meet. Although I am not aware of specific authority on the point, modern pleading practice should not be and is not constrained by whether the label "general" or "special" damages is given to a particular item of claim. Take, for example, a claim for damages to compensate for physical damage to land. It is (correctly) common ground that the normal approach to assessment of such a claim is either by reference to diminution in value or by reference to costs of reinstatement. Describing such claims as claims for general damages should not and does not determine the level of particularisation that is required. If a claim for damage to land based on diminution in value were to be advanced, the opposing party needs certain information if it is to be able to meet the claim on an equal footing: as a minimum it needs to know what sum is claimed and the nature of the case in support of that claimed sum. In some cases the diminution in value claim may be advanced by reference to comparables; alternatively it may be by reference to a reduction in the income stream which the land had generated but which can no longer be maintained; or it may be by reference to costs of reinstatement. If any of these are the nature of the case that is being advanced, they should be pleaded so that the opposing party can address the propositions on which the claim is based and either accept or refute them. If the claim is advanced on the basis of costs of reinstatement, the opposing party must be entitled to know what those costs are said to be and how they are computed calculated or otherwise made up. If that information is not provided, there can be no equality of arms and the opposing party is unfairly disadvantaged.
15. It follows from these observations that the mere fact that a party says that it claims damages because damage has been caused to land is not sufficient to alert the opposing party to the nature of the case that is being advanced, since claims arising out of damage to land may be many and varied.
16. For these reasons, I approach the question whether the Claimants require the Court's permission to include a claim on the basis set out in the F&BPs by asking whether the claim there set out has previously been fairly and sufficiently brought to the attention of the Defendant (and the Court) so that the Defendant could or should have been able to identify it as the case it had to meet.

The formulation of the Claimants case up to the F&BPs

17. By their skeleton argument for the present hearing, the Claimants submit that "the central issue is ... whether the Court should be precluded at trial from considering whether the Claimants are entitled, in law and in fact, to any general damages for the damage to their land." On the question whether what is currently set out in the F&BPs constitutes or gives rise to the need for an amendment, they submit that the F&BPs "do not represent a change of case. The information in the [F&BPs] – most of which was anyway information already in the possession of the Defendant - represents the further elucidation of an existing case. It is further information about facts (the damage to the land) and a claim (the claim for damages) which has always featured as part of the pleaded case." The Claimants rely in particular upon the contents of pre-accident correspondence, the Claim Form, the Particulars of Claim and further information provided in February 2012.
18. Since the hearing the parties have provided an agreed schedule of the key documents showing how the claim has been presented. The pre-action letter of claim was sent on 23 May 2007. It stated that "the construction of the pipeline has caused very significant damage to the lands surrounding the right of way." and that "The impact of the damage has been devastating to our clients. It has resulted in land that had previously been farmed by families for generations becoming unworkable, water sources have effectively disappeared or at best been depleted to unviable levels for agriculture, mining, the rearing of livestock and for human habitation of the farms. The sedation [sic] of water sources has similarly impacted upon agriculture and activities such as fish farming; …" Under the heading "Quantum" it said "you will appreciate that our clients are all farmers who carried out various economic activities both for their own family sustenance (which typically includes several extended families) as well as to sell commercially and derive and income from the same. We attach five example schedules setting out details of the damage and losses sustained. …"
19. A typical pre-action schedule of loss is included in the hearing papers^[6]. It identified the farm and its pre-pipeline productivity. It alleged de-forestation, sedimentation of water sources and other damage to land and alleged that currently the farm could no longer support those who had lived on the farm before. Schedules identified the pre-pipeline annual productivity of the farm, lost income by reference to reduced annual production, additional expenditure, current income and expenditure, additional income received, and a calculation of loss which aggregated the financial losses set out in the previous schedule and projected the annualised loss of production for balance of the 20-year expected life of the pipeline.
20. It has been evident (and is not disputed) that the Claimants' cases have been founded from the outset upon allegations that their land had been damaged. However, neither in the pre-action letter nor in the pre-action schedules was there any mention of a claim for damage to the land advanced on the basis of diminution in value of the land, or by reference to the costs of reinstating the land. The letter articulated the Quantum claim as being in respect of the economic activities carried out on the farm, and this was explained by the schedules which provided a calculation based upon loss of productivity. Neither the letter nor the schedules mentioned any claim for general damages or any alternative formulation of a claim for damage to the land itself (as opposed to the Claimants' enjoyment of their land).
21. The Defendant's letter of response to the pre-action letter of claim was dated 16 August 2007. The Defendant said that, because the schedules were not supported by evidence and there was no indication of the evidence that would be adduced to support the claims, it was impossible for the Defendant to respond to the section of the pre-action letter dealing with Quantum or the schedules that had been provided.
22. The Claim Form issued on 29 January 2008 gave as Brief Details of Claim that "the Claimants' claim is for damages for damage to their properties in Antioquia, Colombia and the consequential financial losses caused by the nuisance, and/or negligence and/or breach of contracts entered into between the Defendant and the Claimants … in relation to the construction and operation of an oil pipeline passing under the land of the Claimants." It therefore raised specifically (a) a claim for damages for damage to the land, and (b) a claim for damages for consequential financial losses.
23. The GLO made on 24 September 2008 established Standard Minimum Requirements for entry of a claim on the Group Register. Those requirements were pre-requisites which any Claimant had to satisfy in order to enjoy the benefits of being able to bring his or her claim within the structure of the Group Litigation. The Standard Minimum Requirements included that each Claimant should complete a Schedule of Core Information ["SOCI"]. Each SOCI had to include information about Loss and Damage as follows:

"17. Details of the damage alleged to have been caused to the Affected Property as a result of construction of the OCENSA PIPELINE.

Details of whether, prior to construction of the OCENSA PIPELINE, the Affected Property, was used for: agriculture, rearing livestock, forestry or mining.

19. Details of whether the Affected Property has been used for agriculture, rearing livestock, forestry or mining since construction of the OCENSA PIPELINE.

20. Details of any consequential losses claimed by the Claimant.

21. Details of the current state of the Affected Property and whether or not it generates any income. "

24. At [19] of the 2012 judgment, the Senior Master said of the requirement to provide SOCIs in this form that:

"the intention in my judgment was to give the Defendant the information they needed to check whether there was any damage to the land and whether it had been caused by the pipeline and if so if it had caused the consequential losses. I am quite certain that if there had been any intention to claim damages based on the future cost of remediation of the Claimant's land I would have insisted (and no doubt the Defendant would as well) on them being asked to give some indication, at the very least, of any remediation work they intended to carry out and probably a "ballpark" figure for the cost thereof. As the Claimants themselves maintain, reinstatement cost is a well known measure of loss the availability of which would have been well known to their lawyers at the time and if there had been any intention to claim it they would or should have intimated the fact."

25. The Defendant submits on the present application that at least one purpose of the SOCIs was to alert the Defendant to the nature of the claim it had to meet and that, if a claim for general damages (or a claim such as is now being advanced by the F&BPs) was being advanced, it should have featured in them. While it is right that the GLO's formulation of the Core Information required of the Claimants did not refer to general damages, that is not surprising since by then the Court already had before it a formulation of how the Claimants were putting their claim, which did not indicate any wider basis of claim than for the loss of productivity. As the Senior Master put it at [17] of the 2012 Judgment, "the appropriate GLO issues … were formulated on the basis of the claim as it was understood to be in particular by the Defendant in the light of the draft particulars of claim and schedules of loss that had been served." On the information that is available to the Court on the present application, that was correct. Whatever the reason, as further SOCIs were filed, none made mention of a claim for general damages or expanded on the existing basis of claim, namely a claim for loss of productivity over the expected life of the pipeline.
26. On 1 December 2008, Particulars of Claim were served in the case which has now become Lead Case 10. At [41] they referred to the damage alleged to have been caused to the land, including removal of vegetation and inadequate revegetation, soil erosion, sedimentation and damage to water courses. At [42] and [43] they alleged breaches of obligations owed pursuant to agreements and under Colombian law. At [44C] they alleged that the Defendant was liable to compensate the Claimant because its breaches, including environmental damage, were characterised by "dolo" or because the damage that occurred (including environmental damage) was foreseeable at the time of contracting. The Particulars of Claim concluded at [50] that "by reason of the breach of contract and/or negligence of the Defendant and/or the facts and matters set out above, the Claimant has suffered loss and damage and claims accordingly. Further particulars will be delivered in due course."^[7]
27. The Defendant requested further and better particulars stating that "the Claimant is obliged to particularise his loss. Provide full particulars of the loss and damage which the Claimant claims." By way of further particulars, on 29 May 2009 the Claimant referred back to the schedule which had previously been served on 6 July 2007, which was in the form that had been adopted for the pre-action schedules and the SOCIs, as described above. The net effect, therefore, was that, while the Particulars of Claim referred to the fact of damage to the land, there was no further expansion or exposition of the case on quantum, which remained articulated as a claim for past and future loss of productivity over the 20-year expected life of the pipeline.
28. At [22] of the 2012 Judgment the Senior Master summarised the position to this point by saying that:

"The purpose of these documents was to allow the court and the Defendant to know; (a) what damage the pipeline was alleged to have caused and; (b) the value of the claims and (c) to enable the court and the parties to craft appropriate directions including the selection of lead cases."

On the information available to the Court on the present applications, that was plainly right.

29. On 12 March 2010, by which time the Group Register had been closed for 9 months and Lead Cases chosen on the basis of the information then available, Particulars of Claim were served by the other 9 Lead Claimants. The Particulars of Claim generally followed the pattern that had previously been adopted and, specifically, alleged the fact of damage to the land. Under the heading "Loss and Damage" the Particulars of Claim pleaded that:

"By reason of the facts and matters set out above the … Claimants have suffered loss and damage and claim accordingly. In this regard, a Schedule of Loss was served on 6 July 2007. Further particulars will be served in due course. The Claimants claim compensation pursuant to Colombian law, quantified pursuant to English law and/or damages"

Once again, therefore, the formulation of the claim on Quantum reverted to and did not expand upon the formulation adopted by the Schedules in and from 2007.

30. On 1 March 2011 the Senior Master ordered the Lead Claimants to particularise by 26 April 2011 what relief, if any, other than the payment of damages/compensation and interest they claimed; and to serve and updated Schedule of Loss setting out the losses they claimed by 31 January 2012. In response to the first order the Lead Claimants confirmed that they claimed no other relief. The Claimants were unable to comply with the second order in the 11 months originally allowed by the Senior Master. The date for service of the updated schedules was extended first to 13 May 2012 and ultimately to 12 June 2012, just under 15 ½ months after the original order.
31. On 13 September 2011 the Senior Master ordered the Claimants to identify "by marking the relevant location on a map or photograph ... those parts of their properties which have suffered erosion or other damage as a result of the construction of the OCENSA pipeline, which they contend have suffered a consequent reduction in productivity." The terms of the order, requiring the identification of damage to the land which was said to have caused reduction in productivity, accurately reflected the manner in which the Lead Claimants had pleaded their claims up to that date. The Lead Claimants provided the information by annotating aerial photographs with numbers in the locations of damage, which numbers were cross-referred to tables specifying the nature of the damage suffered in that location. As before, the identified damage consisted of affected crops, affected pasture, soil erosion, and affected watercourses.
32. On 24 February 2012 the Claimants served further information. It included sections entitled "Generic Matters" and "The Lead Properties" and two Appendices running in aggregate to just under 300 pages, plus the annotated aerial photographs and tables to which I have just referred. The "Generic Matters" referred to damage to the Claimant's Land, linking the descriptions of damage to allegations of negligence or other default on the part of the Defendant. Section (VI) of the "Generic Matters" was headed "DAMAGE". It summarised features of the damage on the Lead Properties which are alleged to be common to the Lead Claimants Properties under the following headings:

i) Productivity/Fertility of the ROW (Right of Way);

ii) Productivity/Fertility of Sedimented Fields/Land;

iii) Productivity/Fertility of Swampy/Flooded Areas;

iv) Reduced Productivity of the Property as a whole.

33. Part 2 of the Further Information provided details of the damage alleged to each of the Lead Claimants' properties in turn. The Further Information did not address the nature of the claims being brought that arose out of the alleged damage. The only pointer to the claims that the Lead Claimants wished to bring was the headings for the common damage identified above, which were again consistent with a claim being brought on the basis of reduced productivity and did not indicate the existence of any other head of claim.
34. On 13 June 2012 the Lead Claimants served Updated Schedules of Loss and Damage which, for the first time, identified claims for the cost of soil recuperation and regeneration. Further particularisation was ordered. In their final form the Revised Schedules were presented under the following headings:

"I Summary of Claim

II General Damages

(1) Cost of Reinstatement

(2) Moral Damages

(3) Loss of Amenity/Quality of Life

(4) Past Loss of Domestic Consumption

(5) Future Loss of Domestic Consumption

(6) Outlay of Labour or Resources

III Past Expenses

IV Past Loss of Income

V Losses and Expenses Affecting the [ ] Family

VI Interest

VII Future Expenses

VIII Future Loss of Income

IX Payments for which Credit is Given"

35. The Defendant disputed the Lead Claimants' right to bring a claim for the cost of reinstatement, which led to the 2012 Judgment. The heads of claim described as "Moral Damages" and "Loss of Amenity/Quality of Life" are directly relevant to the present application and require some explanation.
36. The Revised Schedule of Loss and Damage for Lead Claimant 38 (which is provided to the Court as being typical) presents a claim for Moral Damages, pleading that "pursuant to Colombian law, the Claimants are entitled to claim damages for emotional distress, pain and suffering, known in Colombian law as daño moral." As particulars of the claim it alleges that the Claimant and the families who lived on the properties at the time of the construction of the pipeline, have suffered emotional distress, pain and suffering, due to:

"14.1 The anguish and uncertainty caused by the damage to the soil on pasture fields and water sources on the Property, which occurred all at once over a short period of time, and the damages attendant thereon which had an immediately affected a number of activities which the Claimants relied on for their livelihood (notably, loss of livestock, fruit trees, timber, and fish);

14.2 In particular, the uncertainty as to the availability of drinking water due to damage caused to the water source used by [the families]. ... The Claimants also suffered the anxiety of having to search for alternative sources of drinking water and were forced to construct a new well at another location on the property. However, the quality of the well water was not as good as the one previously used. The Claimants' anxiety in not having suitable drinking water available was only allayed after they were provided an aqueduct to replace the loss of the well.

14.3 The anguish and uncertainty as to the general lack of availability and accessibility of suitable water on the Property upon which the various farm activities depended (in particular cattle, fishing and crop irrigation). ... This caused a situation of real anxiety and insecurity for the Claimants in circumstances where a large number of family members and the main farming activities depended upon these sources and suitable alternatives are limited for a number of reasons, not least because they are located at great distances which are inconvenient."

37. The Revised Schedule also presents a claim for Loss of Amenity/Quality of Life, pleading that "Under Colombian law, the Claimants are entitled to claim daño a la vida de relación, which translated means loss of quality of life and which can be equated to loss of amenity. Colombian law awards this head of loss to compensate for damage which prevents the claimant enjoying his/her former levels of quality of life, and which recognises the increased difficulties that the claimant faces in living his life as a result of the tortious wrong suffered." It rehearses that the Claimants are subsistence farmers who lived according to a traditional and inherited way of life, relying upon personal and inherited knowledge in order to farm their land. Subsistence farming involves both sale of produce and barter with neighbours and requires not merely self-sufficiency but a surplus to provide food security and to allow him to trade for the acquisition of necessities. It particularises the loss of amenity/loss of quality of life flowing from the Claimants' inability to carry on their traditional way of life or being unable to carry it on without considerable increased difficulties. It instances continuing difficulties including the need to spend additional time and labour in order to secure maximum productivity from their land; the need to spend extra time to acquire suitable water; consequent reduction in time for leisure and social activities; the continuing effect of damage to the soil, pasture fields and water courses which caused anxiety and distress for the Claimants and their families; loss of production which led to a loss of social status; reduced levels of food security consequent upon reduced production, with the result that the Claimants and their families have been obliged to go hungry and/or to forego key nutritional elements of their diet, if they have been unable to source these elements by other means (e.g. purchase or bartering); lack of ability to generate surpluses as before; and inability to participate in the barter economy with consequent reduction in social status. In addition it is alleged under this head that the Claimants "lost the full amenity of the Property due to the damage caused to by the construction of the pipeline." Instances of this loss are given: the available water on the property in the affected water courses may not be suitable for animals or humans because of a significant increase in iron levels; the sedimentation of the well meant that the Claimants could not continue to allow it to be used by the small community of 12 families as a source of drinking water, particularly in the dry season; and the severe erosion to the top layers of the soil and the presence of iron rock shells which is an indication of severely degraded shells.
38. These two heads of claim are similar to heads of claim that are recognised under English law, but I bear in mind at all times that they are not necessarily identical. Further explanation of the two heads of claim is provided by the Expert on Colombian Law whose report has been served on behalf of the Claimants. She explains that Moral Damages are not aimed at punishing the wrongdoer but are measured "according to the intensity of the emotional distress." Loss of amenity damages are said to be awarded in special cases, in particular for personal injury. It has been defined as the deterioration of the quality of life of the victim. The main difference between the two categories is that "while moral damages are related to the most intimate and subjective feelings, the damage to a person's life of relationship is expressed in objective terms, affecting the external dimension of the victim, with a negative impact on its previous way of life, even if no monetary loss is suffered." In the light of this explanation I understand that Colombian Law recognises a distinction between (a) compensation for damage caused to property, (b) compensation for pecuniary losses suffered as a result of damage to property, and (c) compensation for losses that are personal to the victim although consequential upon damage to property, which in Colombian law are referred to as Moral Damages and Loss of Quality of Life. When assessing these heads of claim applying English law, similar distinctions are familiar since categories of compensable damage may include (a) compensation for damage to property, which in the case of land is typically measured by reference to diminution in value and/or costs of reinstatement, (b) consequential losses, such as loss of income or increased expenditure, and (c) compensation for the personal effect upon the victim, which may be characterised as damages for loss of amenity. I would merely add for present purposes that loss of productivity may in some cases be used as the basis for measuring (or providing a cross-check for) diminution in value, as typically happens when valuing income-producing buildings by reference to Estimated Rental Values and Yields.
39. For completeness I note that, as a general principle, it appears that the object of awards of damages in Colombian law is essentially the same as that enunciated in English law by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39, namely to put the party as nearly as possible in the same position as he would have been in if he had not sustained the wrong.
40. On 15 February 2013 the Senior Master ordered the Lead Claimant to "provide a written statement which sets out their case as to how they will contend for general damages in respect of damage to their property". The Claimants' response was served on 8 March 2013 and included:

"3. The Lead Claimants will contend that, in circumstances where they are precluded from claiming for the cost of reinstatement to their land, the actual financial loss caused to each of them by the Defendants' actionable breach of duty as pleaded in the Schedules of Loss is inadequate to satisfy the basic criterion for the award of damages, namely to put them in the same position as they would have been in if they had not sustained the said breaches of duty.

4. They will ask the court to award them, in addition to the damages referred to in the Schedules of Loss, such sum by way of general damages as the court, in its function as tribunal of fact equivalent to a jury considers to be just and equitable in all the circumstances of the case to provide them adequate compensation for the damage to their land. In this regard, in addition to the general principles of law founding such a claim for general damages, the Lead Claimants will rely on the court's power under section 50 of the Senior Courts Act 1981 to award damages in lieu of specific performance or injunction."

41. This formulation makes clear that the claim for general damages is brought because of the disallowance of the claim for costs of reinstatement and in substitution for it. It marked the final state of the development of the Claimants' case on quantum before the service of the F&BPs on 24 April 2013.

The Case Advanced by the F&BPS

42. The immediate purpose of this review is to identify whether the F&BPs seek to introduce a case which is materially different from what has been advanced before such that it amounts to an amendment requiring the permission of the Court. I leave to later the questions whether, if an amendment is required, the claims that are being advanced are legally admissible and, if so, whether permission to amend should be given.
43. The first section of the F&BPs is headed "Introduction" and serves that purpose. At [5] it is pleaded that "the Defendant has accepted that the heads numbered (2) to (6) under "General Damages" [in the Revised Schedules] are adequately pleaded. These particulars do not concern those heads, but concern the damage to the Lead Claimants' land." For reasons that will appear, this statement is incorrect, as the F&BPs cannot reasonably be interpreted as being solely concerned with the damage to the Lead Claimants' land but go into considerable detail about what is in one place described as the Claimants' "symbiotic relationship" with their land.
44. The second section sets out the "Legal Basis and Approach" adopted by the Claimants and bears close scrutiny. [6] pleads that the particulars in the second section "are intended to give notice to the Defendant of the legal basis for the Lead Claimants' claims in respect of those general damages which are not within the heads of loss set out in the March 2013 Schedules of Loss and of the approach which the Lead Claimants will ask the court to adopt." It therefore appears that the intention of the F&BPs is to advance a claim for general damages which is not within the heads of loss set out in the Revised Schedules of Loss (including moral damages and loss of amenity damages). That would be consistent with the 8 March 2013 Statement. On the basis of my finding that no claim for general damages had been identified or articulated before the Revised Schedules of Loss it would therefore follow that the claims being advanced in the F&BPs were new when put forward by a combination of the Revised Schedules, the 8 March 2013 Statement and the F&BPs. However, since it is the Claimants' submission that these documents merely elucidate an existing case, it is necessary to analyse the F&BPs to see whether this is in fact correct.
45. Having identified the Livingstone v Rawyards Coal principle at [10], the Claimants set out how they submit the Court should give effect to it in this case. [11]-[19] are central to the formulation of the Claimants' case and are set out in full below:

"Giving Effect to the Underlying Principle

11. In these cases, the court cannot adopt any of the approaches usually adopted by English courts in the assessment of damage to immovable property. An assessment based on a diminution in value is unrealistic in these cases, in view of the particular circumstances of the Lead Claimants and their properties and not least in view of the changing and uncertain security situation which prevails in this part of Colombia. The Defendant has not contended the contrary. The same goes for the cost of replacement land, which in any event would not be a just approach to adopt. Claims based on the cost of reinstatement, which were advanced by the Claimants, have been excluded by order of the court. It is therefore necessary for the court to adopt another approach to assess the sum which it should award each Lead Claimant.

12. The Claimants will ask the court to assess such general damages at large pursuant to its fact-finding or 'jury' function. As noted below, it should do so in light of all the circumstances of the case.

13. The Claimants will submit that the court should first reach at least a provisional view as to what sums to award in respect of each of the heads in the Revised Schedule of Loss, and that it should then consider whether those sums adequately give effect to the underlying compensatory or indemnity principle. If and to the extent that they do not, then the application of that underlying principle requires that the court make an additional award of general damages to make good that deficiency.

For example (and without limitation), the court's assessment of moral damages or damages for loss of amenity / quality of life will be directed particularly to the personal non-pecuniary loss suffered by the particular Lead Claimants, whereas the court may consider that an award under those heads will have taken no account, or only inadequate account, of the damage to that Lead Claimants' property. The court may further consider that the quantitative exercise which the Claimants will ask it to undertake in respect of the Claimants' pecuniary losses by way of loss of productivity and other matters fails, or fails adequately, to compensate for non-pecuniary losses suffered by reason of the damage to the Claimants' land.

14. Such an approach is in line with the court's approach to the assessment of damages for trespass. Examples of cases in which such an approach has been adopted are the decisions of the Court of Appeal in Scutt v Lomax (unrep, 25 January 1990) and Bryant v. Macklin [2005] EWCA Civ 762.

15. In considering whether the award of damages does satisfy the underlying principle, the Claimants will ask the court to consider one or more of a number of cross-checks to benchmark its assessment.

16. First, it could consider an upward revision of its multiplier in respect of future loss of productivity to take account of the matters which it has not, or not adequately, reflected in its assessment of the other heads of loss.

17. Secondly, it could consider an award of damages on a 'perpetuity' basis in place of a multiplier-based approach.

18. Thirdly, it could consider the Wrotham Park case law, following the decision of Brightman J. in Wrotham Park Estate Co. Ltd v. Parkside Homes Ltd [1974] 1 WLR 798. In the current state of the law, Wrotham Park awards may (relevantly) refer to (1) compensatory damages which exceed the actual financial loss caused to the Claimants by the actionable breach of duty; or (2) damages awarded (in lieu of specific performance or an injunction) under the jurisdiction created by Lord Cairns's Act and now to be found in section 50 of the Senior Courts Act 1981: see Pell Frischmann Engineering Ltd v. Bow Valley Ian Ltd [2009] UKPC 45, para. 46

19. The Claimants rely on each of these two descriptions of Wrotham Park damages. One of the bases on which Wrotham Park damages may be assessed is to consider the sum for which a reasonable and reasonably advised person, with knowledge of all available options, in the position of the Claimants, would have negotiated for compensation with a reasonable counter-party if he or she had known in advance that damage would occur of the nature and extent which did occur ('hypothetical lost bargain basis')."

46. A number of points immediately arise:

i) In her 16^th Witness Statement, Ms Srinivasan gives detailed reasons why the Claimants consider that diminution in value is not an appropriate measure of damages for the damage to the Claimants' land. In briefest summary, she says that issues relating to security and public order tend to be the most important depreciating factor, that armed groups may illegally occupy farms at any time and that there is no stable information about property values. That may be right, but it does not follow that diminution in value is an irrelevant consideration. For reasons that are discussed later, the value of the land in its undamaged and damaged states may be a relevant factor when deciding what constitutes appropriate compensation, whatever is adopted as the primary approach to quantification of loss;

ii) For similar reasons, it is not obvious why the cost of replacement land is irrelevant to the assessment of damage to the Claimants' immoveable property. If, for example, it were to be shown that the claims based upon loss of productivity, or the claims as now being formulated as claims for damage to land, were to result in sums being claimed that were exorbitantly greater than the cost of replacement land, the cost of replacement land could be a material consideration, acknowledging all the while that removal of the Claimants from their damaged land would be a major step and is not one that they presently appear to contemplate;

iii) The assertion in [11] that "it is therefore necessary for the court to adopt another approach to assess the sum which it should award each Lead Claimant" neglects the fact that the only reason why the Claimants' preferred approach to the assessment of damages for damage to the land as such (cost of reinstatement) is unavailable is because the Claimants did not advance it until it was too late for the claim to be brought fairly. It would be wrong to suggest that it was otherwise "necessary" as a matter of principle for an alternative measure of loss to be devised;

iv) The suggestion in [12] that the Court should assess "such" general damages "at large pursuant to its fact-finding or "jury" function" and that it should do so in light of all the circumstances of the case, provides no clue as to how the Defendant is expected to address this head of claim or how the Court is to approach its functions. The only identification of the principles to be adopted by the Court are in [13] where it is suggested that the Court should assess the other heads of damage and "should then consider whether those sums adequately give effect to the underlying compensatory or indemnity principle." This will necessarily include making a "fact-finding" or "jury-function" assessment of the claimed loss which would, but for the Claimants' procedural failures to advance the claim in good time, have been measured by reference to the cost of reinstatement. In circumstances where the Claimant rejects the relevance of replacement costs or diminution in value but has consistently advanced a financial case based upon diminution in the income stream for a period of 20 years, there seems to be no sound basis upon which or by reference to which the Court is meant to address this supposedly fact-finding assessment, unless it be by reference to costs of reinstatement, which the Claimants have consistently asserted is the preferable measure of loss. What has happened in this case is that the Claimants have attempted to bring an appropriate claim for damage to their land but have done so too late. The Livingstone v Rawyards Coal principle applies where all necessary and appropriate claims are brought forward to provide adequate vehicles for the provision of full compensation. It does not state or imply that where a legally recognisable and conventional head of claim is ruled inadmissible because of a party's procedural default, the deficit shall be made up by damages awarded "at large."

47. Before returning to the authorities upon which the Claimants rely in support of the claim they wish to advance and the cross checks that the suggest should be applied, I turn to the Facts Relied On by the Claimants in the F&BPs, treating the facts in relation to Lead Claimant 38 as typical. At [22] the Claimants plead that "the nature of the exercise which the Claimants will ask the court to perform involves the court taking account of all the circumstances of the case." The facts specific to Lead Claimant 38 are at [23.3] of the F&BPs and include the following:

i) "It is intended that the property will stay within the family. Therefore, insofar as the damage to the property remains unremediated, the patrimony of [the Claimant] is reduced. The family heirs will continue to contend with damaged land and damaged water sources into the future."^[8] This includes two separate matters. First, the effect upon the present Claimants patrimony, which is clarified later^[9]; and, second, the fact that the heirs (who are not Claimants) will have to contend with damaged land. This implies a claim for the financial consequences to the heirs of inheriting the property "insofar as the damage to the property remains unremediated". It does not state whether the property will or will not remain unremediated and does not advance a claim that the present owners have suffered financially measurable loss as a result of the damage to their land;

ii) "[The Claimant] has had to contend with the acute distress of witnessing the undoing of the work he, his late brother and his family members had done due to the damage suffered to the property."^[10] This appears to lay the basis for a claim for Moral Damages or, possibly, loss of amenity damages. It does not appear to be relevant to an assessment of compensation for damage to the land as such;

iii) "The land was intended to provide security to the Claimants and their entire extended family far into the future... . [The Claimant] is now faced with a situation wherein the lifetime of work designed to provide such security to his and his entire extended family at present and into the future has been undermined by the damage to the property."^[11] The loss of productivity during the expected life of the pipeline is already claimed and, if proved, will compensate for the lack of security during that period. The Claimants do not identify what else is being referred to either in terms of period or of quantification of the "loss of security". The pleaded facts and matters could also be the basis for a claim for Moral Damages or Loss of Amenity Damages. Viewed either on its own or in context, the nature of the case being advanced is unclear;

iv) "The Claimants have suffered particularly acutely due to the damage to the water sources on the property. The well relied upon by the Claimants became substantially sedimented and, during the initial period of damage, the Claimants' family members, including young children, fell ill after drinking the sedimented water. No assessment has ever been made of either the physical harm or the emotional distress arising out of this incident.. Ultimately, an aqueduct was installed with the intention of remedying the ongoing problems with the water quality. However, the aqueduct has not solved the problems of obtaining sufficient drinking water."^[12] This advances a claim for personal injuries and claims for emotional distress and continuing difficulties in obtaining drinking water which appear to fall within the ambit of the claims for Moral Damages or Loss of Amenity Damages. The opening words ("The Claimants have suffered ...") indicate that this is not a claim in respect of damage to land as such but for the impact it has had on the quality of life of the Claimants;

v) "The Claimants and their large family have lost the ability to rely on available resources (both natural and man made) on their farm to the extent they did before the damage caused by the OCENSA pipeline."^[13] It is not clear what, if anything, this is intended to add to the loss of productivity claim and the claims that are already admitted in respect of loss of domestic production. The facts alleged might be intended to form the basis of a claim for Moral Damages or Loss of Amenity but the F&BPs do not identify their relevance apart from the statement at [5] that they do not concern those heads of damage but do "concern the damage to the Lead Claimants' land." How they are intended to affect the assessment of damages "at large" for damage to land is not stated and is not self-evident;

vi) "The ongoing damage to water sources means that the land is significantly impaired both as an asset and in its functions as a farm and a place for domestic life. This has not been valued adequately or at all by claims for loss of productivity."^[14] Any impairment of the land "as an asset" would be compensable by reference to diminution in value or cost of reinstatement. Impairment "in its functions as a farm" has no obvious meaning if it is not a reference to loss of productivity. Impairment "as a place for domestic life" is the subject of the claims for Moral Damages or Loss of Amenity. If and to the extent that the financial consequences are not reflected in the loss of productivity claim, that is a consequence of the Claimants' failure to advance a claim for damage to their land as such on one of the conventional bases or to limit their loss of productivity claim to a period of 20 years;

vii) After pleading that the contracts entered into before the pipeline was constructed were inadequate to provide full compensation, it is alleged that "a reasonably advised person, with knowledge of all available option, in the position of the Claimants, would have negotiated for compensation which would have represented the severity and extent of damage suffered, and which would have reflected the ongoing nature of the damage which would outlast the Claimants lives ..." This is a reference to the Wrotham Park Estate line of authority which had previously been suggested as a cross-check with which the Court could bench-mark its assessment.

48. I refer again to the Claimants' suggested cross-checks under Issue 2 below. For present purposes it is sufficient to record that at [15] – [18] of the F&BPs the Claimants suggested three "cross-checks to bench-mark [the Court's] assessment." They are:

i) "An upward revision of its multiplier in respect of future loss of productivity to take account of the matters which it has not, or not adequately, reflected in its assessment of the other heads of loss";

ii) "An award of damages on a "perpetuity" basis in place of a multiplier-based approach"; and

iii) The Wrotham Park case law, under which awards "may (relevantly) refer to (1) compensatory damages which exceed the actual financial loss caused to the Claimants by the actionable breach of duty; or (2) damages awarded (in lieu of specific performance or an injunction) under the jurisdiction created by Lord Cairns's Act and now to be found in section 50 of the Senior Courts Act 1981."

49. Before service of the F&BPs the Claimants had not hinted at, far less articulated, a claim for compensation for damage to the land as such (or any other claim) which should involve the implementation of these cross-checks as a part of the process of assessing damages.

Discussion

50. The Claimants submit that they are advancing a claim for "general damages" or for damages "at large" and that the F&BPs do not represent a change of case.
51. Until service of the Revised Schedules of Loss the Claimants had not at any stage articulated a claim for "general damages". They had made plain from the outset that their case was founded on the fact of damage to land, but they had not identified or advanced a claim for compensation for the damage to their land as such, instead opting to formulate a claim for lost productivity over the life of the pipeline and other miscellaneous expenses that were identified by and from the time of the SOCIs. Equally, until service of the Revised Schedules of Loss they had not at any stage identified or advanced a case claiming compensation for the personal effects upon them of the damage to their land. That was done for the first time in the Revised Schedules by the advancing of the claims for moral damages and loss of amenity damages.
52. As I have said, and as the review of the F&BPs set out above shows, the Claimants are wrong to submit that the matters pleaded in the F&BPs do not concern heads (2) to (6) under "General Damages" and are wrong to suggest that they concern only damage to the Lead Claimants land. It is clear that, while references are made to the damage to the Lead Claimants' land the main thrust of the specific particulars at [23.3] is to identify respects in which the Claimants' enjoyment of their land is diminished, though there are passing references to loss of productivity. It is not at all clear from the F&BPs how the claim there being articulated differs from the claims for Moral Damages or Loss of Amenity, which are already in play. When asked to explain the demarcation between the claims for Moral Damages and Loss of Amenity that are already in play and the claims being advanced in the F&BPs (which say that they do not concern those heads), Mr Layton QC said that the matters raised in the F&BPs sounded in damages either as Moral Damages or Loss of Amenity Damages or otherwise. He did not identify any demarcation line for the Court (or the Defendant). Furthermore, it is not at all clear how the matters raised in the F&BPs are supposed to be translated into "proper compensation" for damage to land as opposed to their adverse effect upon the Claimants' enjoyment of that land. The reference to loss of patrimony is clearly expressed, but if the Claimants are wishing to assert that loss of patrimony as there expressed forms a coherent part of an assessment of damages for damage to land, they have not explained how such an assessment is meant to work and it is not, in my view, self-evident.
53. This confusion is not resolved by the evidence served by the Claimants for this application. Ms Srinivasan summarises the Claimants position in her 16^th Statement by saying that "The Claimants' claim is and always has been for damages to or compensation for their property and for damages for the loss of productivity and expenses consequential on the damage to their property."^[15] She says that "the Claimants have already adequately claimed, particularised and explained their claim for general damages for the damage to their land and no further particularisation or amendment of the statement of case is or should be required."^[16] She summarises the Claimants approach to General Damages as being that "the heads of loss covered by general damages for moral damages and for loss of quality of life do not cover certain types of loss or do so inadequately such that the Claimants contend an additional award will be required in order to properly satisfy the compensatory objective of an award of damages."^[17] At [46] she summarises the Nature of the Damage to the Properties in respect of which compensation is sought; and at [48] she summarises the nature of the loss for which compensation is sought in terms that are consistent with the F&BPs but do not provide further explanation of how such matters are to be converted into compensation for damage to the land, as opposed to compensation for the Claimants' ongoing loss of amenity. Viewed overall, however, Ms Srinivasan supports the suggestion that the claims that the Claimant now wishes to advance, as set out in the F&BPs, are claims for damage to the land.
54. The Claimants' skeleton argument for this hearing submits that the nature of the damage for which compensation is sought is (in briefest summary) damage caused by erosion and sedimentation and damage to water courses and that the compensation for this damage is sought on the basis that the financial losses which flow from the damage to the land (together with moral damages and damages for loss of amenity/quality of life) do not represent adequate compensation for the damage caused^[18]. This explanation confirms what was said in the 8 March 2013 Statement, namely that the claim now being advanced is intended to take the place of the claim for reinstatement costs which the Senior Master disallowed in the 2012 Judgment.
55. I return to the question which, when answered, should determine Issue 1: do the F&BPS seek to introduce a case which is materially different from what has been advanced before such that it amounts to an amendment requiring the permission of the Court? In answering that question the touchstone that I apply is whether the previous pleadings identified the issues now being considered with sufficient particularity to enable the opposing party to understand the case it has to meet.
56. There is only one possible answer to this question: there is nothing in the previous pleadings (or in the pre-action correspondence) which identified, advanced or articulated a claim such as is now advanced by the F&BPs. The issue is not determined by the Claimants' use of the label "general damages". What matters is that at no stage did the Claimants identify, advance or articulate such a claim for damages for damage to the Claimants' land so as to identify for the Defendant (or the Court) the case that the Defendant had to meet. That omission occurred because the Claimants did not formulate any claim for damage to their land (rather than loss of productivity consequent upon that damage) until the Revised Schedules attempted to advance a claim for reinstatement costs. That was a new claim and was disallowed. The present attempt to bring a claim in for general damages for damage to the land is an attempt to introduce a further new claim in substitution for the disallowed reinstatement costs claim. The Claimants submission that the F&BPs do not represent a change of case is rejected, since no such case had been articulated before: the fact that some of the information now contained in the F&BPs had previously been in the possession of the Defendant does not mean that the case now being advanced is "an elucidation of an existing case." While the Claimants have always founded their claims on the fact of damage to their land, it was not until the Revised Schedules of Loss in mid-2012 that any claim was advanced other than on the basis of loss of productivity over the expected life of the pipeline.
57. I therefore conclude that the Claimants require permission to include a claim for general damages as set out in the F&BPs.

Issue 2: Should permission be granted to include the claim for general damages as set out in the F&BPs.

58. The Court's first instinct will be that amendments ought in general to be allowed so that the real dispute between the parties can be adjudicated upon. It is therefore for the Claimants to satisfy the Court that the amendment identifies a real (as opposed to fanciful) dispute. Once that is done, the burden is on the Defendant to satisfy the Court that there are good reasons why permission should not be granted.

Do the proposed amendments raise a real dispute to be tried?

59. On the first point, the Claimants submit that the damage to their land is serious and should be the subject of compensation. The Defendant responds to this by submitting that a claim for damages at large in circumstances where the Claimants could, had they done so in time, have brought a claim for reinstatement costs is not recognised in English law and is therefore inadmissible.
60. There are well recognised circumstances in which the Court will award what are described as general damages where conventional heads of claim leave an apparent deficit in compensation. One such circumstance is exemplified by the decisions in Scutt v Lomax (2000) 79 P & CR D31 (CA) and Bryant v Macklin [2005] EWCA Civ 762. In Scutt v Lomax the Defendant's trespass destroyed trees and structures on the Claimant's land, which the Claimant had established as a memorial to his daughter. In stating the applicable principles Clarke LJ explained that the measure of damages in trespass which has caused damage to land may be diminution in value of the land or the reasonable cost of reasonable reinstatement, or in some cases a figure in between. The reasonable cost of reasonable reinstatement may ordinarily be recovered even if it is greater than the diminution in value. However, when considering the reasonable cost of reasonable reinstatement the Court will consider whether the amount awarded is objectively fair; and in deciding what steps it is reasonable to take by way of reinstatement, the Court will take account of the cost of the reinstatement. This process, which is founded on what is reasonable and objectively fair, may lead to the conclusion that full reinstatement is either unreasonable of itself or is unreasonably costly, in which case the Court may only award the cost of partial reinstatement. If that happens, the consequence of the Court's principled approach to the measure of damages may lead to a deficit, through no fault of the Claimant's. In Scutt it was concluded that it was not reasonable to replace mature willow trees with replacements of the same maturity, at a cost of £18,500. £8,000 was awarded, which would cover the cost of less mature trees. But that left a deficit, since the application of the principled approach would leave the Claimant's site with trees that were less mature than would have been the case but for the Defendant's tort. In those circumstances, the Court awarded general damages "to compensate the claimant for the loss of amenity" caused (amongst other things) by the replacement with less mature trees. It is also to be noted that the sum awarded as general damages was £3,000, not the £10,500 deficit attributable to the principled approach to reinstatement cost.
61. Bryant v Macklin was similar: it was held that neither diminution in value nor full reinstatement costs should be awarded. Instead, damages were calculated by reference to the cost of planting young whips in place of the mature trees that had been destroyed. This application of the normal principled approach led to a deficit in compensation and the court awarded general damages in addition, which were expressed to be general damages for loss of amenity.
62. Three points may be made about these authorities. First, in each case the Claimant had claimed damages on the conventional basis for claims for damage to land, i.e. diminution in value or reinstatement costs. The need for general damages arose from the principled approach by the court to assessing what were the reasonable costs of reasonable reinstatement. Second, in each case the general damages that were awarded were awarded in addition to and not in substitution for an award of damages by reference to diminution in value or costs of reinstatement. In other words, the award of general damages was a "top up" to a conventionally framed award of damages and did not replace it. Third, it will immediately be noted that the Courts' description of the awards as being compensation for loss of amenity suggests that they would fall within the Colombian law heads of damage (Moral Damages and Loss of Amenity) that are already in play in this action.
63. The parties have not identified any case where general damages for loss of amenity of the type awarded in Scutt and Macklin have been awarded in substitution for a conventional award of damages based on diminution in value or reinstatement costs. It seems to me that there is a conceptual difficulty in attempting to evaluate damage to land by reference to a person's loss of amenity. In some cases, no doubt, the reduced amenity to be had from a piece of land may feed into an assessment of diminution of value; but that brings the Court round in a full circle and begs the question whether what is being valued is the land or the landowner's amenity. Even if such damages were recognisable in principle, it seems to me highly doubtful that the Court would feel compelled to adopt this measure in circumstances where the need for the Claimants to advance it is their own failure to advance a conventional claim in time so that the conventional claim, when finally advanced, has been disallowed by the Court. As the statements of principle in Scutt make clear, part of the assessment of damages in such cases involves an assessment of what is fair and objectively reasonable; and I doubt whether it is either fair or objectively reasonable to fashion a novel head of damages, for which there are no developed criteria or principles in the authorities, so as to assist the Claimants in these circumstances.
64. The second line of authority upon which the Claimants rely builds on Wrotham Park Estate Company v Parkside Homes Ltd [1974] 2 All ER 321. In Wrotham Park the Defendant's breach of covenant profited him but did not diminish the value of the Plaintiff's land. Brightman J awarded damages assessed by reference to what might reasonably have been demanded by the Plaintiffs from the Defendant as a quid pro quo for agreeing in advance to relax the requirements of the covenant to permit the Defendant to act as he did. The express basis for the award was that it would not be "just that the plaintiffs should receive no compensation and that the defendants should be left in undisturbed possession of the fruits of their wrongdoing."^[19] The fundamental requirements of justice are at the heart of the jurisdiction to make awards of this kind. Thus in WWF – World Wide Fund for Nature v World Wrestling Federation Entertainment Inc [2007] EWCA Civ 286 at [59] Chadwick LJ said:

"When the court makes an award of damages on the Wrotham Park basis it does so because it is satisfied that that is a just response to circumstances in which the compensation which is the claimant's due cannot be measured (or cannot be measured solely) by reference to identifiable financial loss. ... [T]he underlying feature is that the court recognises the need to compensate the claimant in circumstances where he cannot demonstrate identifiable financial loss."

65. More recently, in Giedo Van Der Garde BV v Force India Formula One Team [2010] EWHC 2373 (QB) at [515] Stadlen J expressed the view that Wrotham Park damages may fall for consideration "in any suitable case where recoupment of financial loss may not provide an adequate answer." I do not understand his reference to a case where recoupment of financial loss "may not" provide an adequate answer as qualifying the statement of principle in WWF which is stated to be on the basis that "the claimant's due cannot be measured (or cannot be measured solely) by reference to identifiable financial loss." In addition, it seems clear that the Court of Appeal in WWF regarded an award of damages by reference to diminution of value or reinstatement costs as measuring the Claimant's due "by reference to identifiable financial loss": the problem arises when the application of the conventional measures of damage cannot provide adequate compensation.
66. These and other statements of principle to which the Court was referred^[20] show that the awarding of negotiation damages is a flexible and pragmatic response of the common law in circumstances where the application of its principles would otherwise lead to unjust under-compensation. None arose in circumstances where the deficit was attributable to the failure by the party claiming damages to pursue a conventional claim on established principles; and in none was it suggested that the damages might be awarded in substitution for a conventional award in circumstances where such an award would (or should) have been available. In theory, a claim for Wrotham Park or "negotiation" damages could have been made in conjunction with a claim for reinstatement costs if the facts of the case justified it; but I am extremely doubtful that the principles underpinning an award of such damages justify the bringing of a claim in substitution for the disallowed claim for reinstatement costs.
67. On balance, while it is established that general damages for loss of amenity may be awarded to a Claimant in circumstances where the application of conventional principles for measuring damage to land would lead to under-compensation, I would conclude that English law does not recognise as an alternative approach to the quantification of damages for physical damage to land a head of general damages or damages at large in circumstances where it would (or should) have been open to a claimant to advance the claim by reference to diminution in value or reinstatement costs or both. I would also conclude that English law does not recognise as an alternative approach to quantification for physical damage to land a measure of "negotiation" damages based upon the putative negotiation that would have occurred between reasonable men if they had been able to foresee the damage that ensued.
68. I would therefore refuse the Claimants permission to amend to the extent that the Revised Schedules, the 8 March 2013 Statement and the F&BPs advance a claim for compensation for the damage to the Claimants' land adopting as the measure of loss either general damages at large or Wrotham Park/negotiation damages as there set out and as set out above.
69. That is my first reason for refusing permission. However, if I am wrong in my conclusion on the current state of the law, there are additional reasons why I refuse permission on the facts of this application.

Exercising the Court's Discretion

70. First, the Claimants formulation of the new claim fails substantially to comply with the requirement that pleadings and, in particular amendments should be formulated with clarity so that the opposing party and the Court may understand the case that is being advanced. As my review above shows, there is a serious lack of clarity in the F&BPs, largely because the material facts relied upon are matters that appear to be relevant to the admitted Moral Damages and Loss of Amenity Claim with no attempt either in the pleading or in submissions to differentiate between those that are relevant to the admitted claims or the proposed new claims. It is in my view inadequate simply to say that they are relevant to one or the other without specifying which. This failure leaves a pervasive uncertainty about how the Defendant and the Court is expected to approach the quantification of the proposed head of claim which is unfair to the Defendant and unsatisfactory for the Court.
71. Second, the situation is exacerbated by the Claimants' approach to their proposed cross-checks. The first proposed cross-check is that "[the Court] could consider an upward revision of its multiplier in respect of future loss of productivity to take account of the matters which it has not, or not adequately, reflected in its assessment of the other heads of loss." This is, to my mind, unprincipled and lacking in coherence. On my reading of the F&BPs, the matters which it is alleged will not have been adequately reflected in the other heads of loss are those set out in the F&BPs. They typically include the anxiety and distress suffered by the Claimants during their lives and the lives of the pipeline. At present the productivity claims are calculated by reference to the expected life of the pipeline. I can see no principled basis upon which the Court could simply make an "upward revision of the multiplier in respect of loss of productivity" to reach appropriate compensation for the matters detailed in the F&BPs. If other matters are relied upon by the Claimants they are not coherently identified.
72. The second suggestion is that the Court "could consider an award of damages on a "perpetuity" basis in place of a multiplier-based approach." What does this mean? Normally in the calculation of damages, an award on a perpetuity basis would be calculated by reference to multiplicands and multipliers. The Claimants do not explain how else this cross-check or bench-mark is to be calculated, computed or otherwise made up. Nor is it clear what is to be awarded on a perpetuity basis. It is evident that the personal Claimants themselves are not going to suffer loss in perpetuity. If this has meaning at all, it appears to involve an attempt to reach a present-day capitalisation of the permanent damage to the land, which opens the door to consideration of a diminution in value calculation and consideration of the relative merits and costs of reinstatement in order to assess the fairness and relevance of this proposed cross-check.
73. The Claimants have provided worked examples of this perpetuity approach. It involves applying a multiplier of 40 to the total future annual losses. It therefore approximates to the loss of productivity claim but applying a multiplier of 40 in place of a multiplier calculated by reference to the balance of the expected life of the Claimant. Thus, contrary to what is said in the F&BPs, this cross check maintains a multiplier based approach but revises the allegedly appropriate multiplier to 40. Converted to pounds sterling, the calculation generates sums ranging from £6,079^[21] to £3,586,795^[22], which of itself raises questions about the usefulness of this approach as a cross-check because of the very wide spread of outcomes. All that can be said with confidence is that this brings into play considerations of reasonableness, which would need to be assessed by reference to matters such as the original value of the property, diminution in value, the cost of replacement land (including compensation for the facts associated with moving) and the relative cost of reinstatement.
74. The third suggested cross-check is the negotiation damages approach. Again the Claimants have provided worked examples. The model applies a rate of compensation derived from the original compensation agreements to the area alleged to be damaged, subject to a discount of between 0-40% (differing for each claim) "for margin of error to be applied to damaged areas." The product of that equation is then multiplied by the number of quarter-years to date and projected forwards by reference to the Ogden Tables. A further discount of 50% is then applied. This calculation generates figures ranging from £66,029^[23] to £1,523,575^[24]. There is no obvious correlation between the results of the cross-check on a perpetuity basis and that on the negotiation damages basis. It is obvious that the Claimants' discounts for margins for error would need to be investigated in detail by the Defendant.
75. The effect of applying the cross-checks and using the resulting figures as the upper limit of the Claimants' claims is shown by a table annexed by Mr Isted to his 7^th Statement. For the cohort of 10 Lead Claimants in aggregate, the value of the total productivity losses that have previously formed the basis of their claims is £4,963,772. The effect of the total general damages claim in aggregate is to increase the value of the claims to £12,236,713. It is inevitable, therefore, that if the new claims were to be allowed, the Defendant would wish and be entitled to commit considerable resources to investigating and, if so advised, defending them. This leads directly to the issue of prejudice, which is the third substantial additional reason for refusing permission.
76. The Claimants submit that the process of awarding the general damages for damage to land for which they contend involves the Court in doing no more than getting a "feel" for the proper level of compensation. They submit that the process is analogous to that undertaken in Scutt and, in other areas of the law of damages, in Jarvis v Swann Tours. On this basis, they submit that the proposed amendments would not give rise to the need for substantial further evidence.
77. I reject this submission:

i) It is quite unrealistic to expect the Court to get a "feel" and to convert that feeling into a monetary award in a vacuum. This is effectively acknowledged by the Claimants when proposing their cross-checks. Yet their proposed cross-checks cannot be implemented without resort to considerations which are not presently in play. For example, the Court would wish to test the suggested perpetuity basis against matters such as the original value of the land, the diminution in value caused by the damage, the prospect and cost of full or partial remediation, and the feasibility of relocation. If, as at present seems likely for at least some Lead Cases, the perpetuity basis would generate a claim that is substantially in excess of any of these measures, the validity of the perpetuity basis as a reasonable and fair approach to the assessment of damages would be called into question. The Claimants' Wrotham Park cross-check calculation raises precisely the same questions;

ii) Even if the Claimants had not proposed their cross-checks, the conventional approaches to valuing damage to land would be relevant and important considerations for the Court when trying to get the "feel" for the appropriate level of compensation for damage to land in a region of Colombia with which the Court is not intimately familiar. It is no answer for the Claimants to submit that their cross-checks merely provide a range of figures for the Court's consideration, that range being from zero to the sum produced by the sample calculations. What is material is that the Claimants do not limit their claims within the range of figures provided. To the contrary they plead that "the Claimants do not seek to limit the court's powers to award whatever sums it considers to be appropriate", implying that the Court may be invited to award figures outside the range if it thinks appropriate. At the very least, the Claimants are proposing that the figures generated by their calculations are within the range that the Court might feel it appropriate to award.

iii) I therefore accept the Defendant's submission that, in order to meet the proposed general damages claim on an equal footing with the Claimants, it must be entitled to carry out investigations so that it can place before the Court evidence about diminution in value, cost of replacement and cost of reinstatement. That would involve the instruction of experts who are not presently instructed and substantial further inspections of the Lead Claimants properties over and beyond those that have been undertaken or planned. Because of the constraints upon carrying out investigations in Colombia, which are detailed in the 2012 Judgment and in the 7^th Witness Statement of Mr Isted (whose evidence on this topic I accept) I conclude that it is not possible for such investigations to be undertaken and evidence fairly gathered and presented to the Court under the current timetable. Neither party applies for a further adjournment of the trial. In that sense, the bringing forward of the disputed general damages claim involves a "late" application for permission to amend since there is not time in the very unusual circumstances applicable to this case for the new claim to be accommodated fairly in the time available.

78. There are other real aspects of prejudice to the Defendant which would accrue if permission were granted, and which cannot be remedied by an order for costs, arising out of the fact that the Defendant conducted the litigation until June 2012 on the basis that the claim it had to meet was a claim for loss of productivity during the expected life of the pipeline:

i) The original site investigations would have been conducted differently and with a view to different issues;

ii) The Defendant engaged in the selection of Lead Cases by reference to the claim and the issues that the Claimants had raised. I accept the evidence of Mr Isted in his 7^th Statement that, if the proposed general damages claim had been in issue, the Defendant would have taken the view that it necessitated an assessment of the cost of reinstatement, diminution in value, and replacement of land values; and that the Defendant would have taken those issues into account when selecting lead cases. It is not feasible now to revisit the selection of lead cases taking those issues into account;

iii) Different or additional experts would have been engaged from the outset.

79. In striking the balance between the desire to have all relevant and substantial issues in play and the factors that militate against the granting of permission, I exclude any consideration of the prospects of the Defendant recovering costs in the future. However, the balance falls decisively against the granting of permission for the reasons I have outlined above, which substantially echo the reasons given for disallowing the claim for cost of reinstatement by the Senior Master in the 2012 Judgment. I have borne in mind at all times that the trial date has slipped since the Senior Master carried out his assessment in the 2012 Judgment. For that reason I have considered the position afresh and with a view to the trial being held in the Autumn of 2014.

Conclusion and the Way Forward

80. For the reasons set out above I refuse permission to the Claimants to bring the claim, described as a claim for general damages for damage to the Claimants' land, as formulated in the Statement dated 8 March 2013 and the F&BPs.
81. As I have said, a number of the facts and matters pleaded in the F&BPs appear to me to be potentially relevant to the existing claims for Moral Damages and Damages for Loss of Amenity. The Claimants shall within 28 days identify which of those facts and matters are relied upon in support of the existing claims and whether each fact and matter so identified is relied upon in support of the claim for (a) Moral Damages or (b) Loss of Amenity Damages or (c) both Moral Damages and Loss of Amenity damages. That can be done either by annotating the F&BPs or by extracting text from the F&BPs into a fresh document, in which case the F&BPs will fall away. If it wishes to respond to the Claimants' exercise, the Defendant may do so within 28 days of receiving it.

Note 1   Lead Claimant 61    [Back]

Note 2   Lead Claimant 82    [Back]

Note 3   Note 7.0.2, White Book 2013 Vol 1, 324.    [Back]

Note 4   See Swain Mason v Mills & Reeve LLP (Practice Note) [2011] EWCA Civ 14    [Back]

Note 5   See for slightly greater detail McGregor on Damages 18th Edn. 1-029 – 1-031.    [Back]

Note 6   HB/16/581-591    [Back]

Note 7   This is the text as it was after amendment of [50] in October 2010. The amendments are not material for present purposes.    [Back]

Note 8   [23.3.1]    [Back]

Note 9    [23.3.4] pleads that “Due to the damage ... this has meant the Second Claimant will lose the opportunity to pass on his and his late broth’s asset ... to their children and/or close family members in a suitable condition as they would have been able to had the damage not been caused.”    [Back]

Note 10   [23.3.2]    [Back]

Note 11   [23.3.3]    [Back]

Note 12   [23.3.5]    [Back]

Note 13   [23.3.6]    [Back]

Note 14   [23.3.7]    [Back]

Note 15   [4.1]    [Back]

Note 16   [4.3]    [Back]

Note 17   [12]    [Back]

Note 18   See Claimants’ Skeleton at [15] – [17].    [Back]

Note 19   At 339d    [Back]

Note 20   Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd and ors [2009] UKPC Case Ref 45, in particular at [46-48]; Tamares (Vincent Square) Limited v Fairpoint Properties (Vincent Square) Limited [2007] EWHC 212 (Ch), in particular at [22]    [Back]

Note 21   Lead Claimant 61    [Back]

Note 22   Lead Claimant 10    [Back]

Note 23   Lead Claimant 61    [Back]

Note 24   Lead Claimant 93    [Back]