Coulson J reviewed the Claimant, CIP Properties’ (“CIP”), application for permission to amend its particulars of claim which alleged building defects caused by the Defendant building contractor. Subsequent to timetable set in October 2014 for the trial, in April 2015, CIP wished to amend the particulars of claim to raise new complaints regarding smoke ventilation and roof defects eight months before the trial date of January 2016. The original claim was outlined in the Claimant’s pre-action protocol letter in 2011 alleging several defects, which included those affecting the car park ventilation system, and the proceedings were issued in 2013. The Claimant argued that the amendments had to be made as they were omitted from the original particulars of claim.

The parties to the dispute agreed to amendments relating to the quantum and the further allegations of breaches already outlined in the pleadings. However, the two new claims were disputed and the Judge dismissed the applications to amend the particulars of claim. Coulson J emphasised that as the timetable had to be revised to allow the agreed amendments, there was little room for the addition of new claims. He also outlined that the Claimant had failed to explain and justify the delay in making the changes. In reaching his judgment, Coulson J assessed the existing case authorities. In particular, he stated that the traditional approach outlined in Cobbold v Greenwich LBC [1999] EWCA Civ 2074 was no longer the starting point. Cobbold generally allowed amendments to statements of case so that the real dispute between the parties can be adjudicated, provided that any prejudice to the other party is compensated in costs to avoid misadministration of justice.

The Judge also outlined that there was a strong prima facie case that the Claimant could not commence new proceedings with the new claims regarding the smoke ventilation defect as this could have been included in the original statement of case and had been deliberately omitted from the pre-action protocol phase. Coulson J referred to Henderson v Henderson [1843] 3 Hare 100, 67 E.R. 313, which established that “the Court requires the parties to [that] litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case”.