Citation: [2021] EWHC 2081 (TCC)
The claimant investment fund, whose portfolio included a mixed-use retail and residential development, brought a multi-part claim against various professionals involved in the procurement, design and construction of that development. The fourth, fifth, and sixth defendants, who comprised the design team, applied to strike out or dismiss parts of the claim against them, principally on the basis that they relied on allegedly impermissible sampling and extrapolation. On those applications Kerr J refused to grant the relief sought (see [2020] EWHC 3419 (TCC)), but ordered that ‘fresh’ Particulars of Claim be prepared and specified how the quantum was to be set out.
The claimant subsequently produced proposed fresh Particulars of Claim and applied for the requisite permission to amend. The fourth, fifth, and sixth defendants objected to some of the proposed amendments on the bases that the claimant had failed sufficiently to particularise certain amendments and that the pleaded claim on quantum, in stating that an expert’s report would provide the detail in due course, did not comply with the earlier order:
Fraser J held, granting the application in part, that:
The claimant had failed to comply with Kerr J’s order in respect of the particularisation of quantum. It was impermissible to ignore the order and state that particulars of quantum would be provided in the expert evidence in due course. The amounts claimed were therefore to be particularised to the nearest £5,000 by 8 October 2021.
There was no sensible basis for opposing the proposed amendments in respect of inadequate record keeping. Subject to one amendment requiring the insertion of a few words to identify which delay notices were the subject of the claimant’s complaint that the fourth defendant had failed properly to analyse, explain and record the basis upon which it had assessed the contractor’s delay notices, permission was granted for all the paragraphs opposed by the fourth defendant in relation to the category of inadequate record keeping.
The claimant’s alternative claim for damages in respect of “lost or diminished claims” caused by inadequate record keeping was a loss of a chance claim. The legal and factual basis of this amended case were more than merely arguable and had a realistic prospect of success. Though there were complications with the case on the facts, the just and proportionate course was to allow the amendment.
