The facts

DPM Property Services Limited (the Appellant) claimed the balance due for work carried out for and on behalf of Emerson Crane Hire Limited (the Respondent). The work in question was carried out at two properties: the Respondent’s yard; and a residential property owned by the director of the Respondent’s company. The Respondent counterclaimed for defects, pleading losses of £4,895 plus VAT for the residential property and £160,175 plus VAT for the Respondent’s yard.

At the pre-trial review, the judge allowed the Respondent to rely on a new liability expert, but deleted the parts of the report to which the Appellant objected. The Respondent was also permitted to rely on a new quantum expert, which consequently allowed them to pursue counterclaims for losses totalling £332,671.34. However, the judge permitted this on the basis that this would be restricted to the entitlement to the originally pleaded sum of £160,175 plus VAT. The Appellant appealed.

The appeal was brought on two bases:

1a) that the judge had wrongly concluded that the losses in the expert report had been particularised in the Scott Schedule of defects

1b) that the judge failed to give effect to his earlier order by which the Respondent had been debarred from adducing evidence at trial on any issue that was not particularised in the Scott Schedule

2) the decision to allow the Respondent to advance at trial a counterclaim for losses totalling £332,671.34 and requiring the Appellant to meet those claims despite the fact that the pleaded value was only £160,175 constituted a serious procedural irregularity and was unjust within the meaning of CPR r. 52.21(3)(a) and (b).

Decision

Delay: it was held that the judge did not take into account the critical issues of delay. Had he done so, he would have refused to allow the Respondent to rely on the new expert report.

Debarring order: the Appellant was correct to regard the debarring order as extending to quantum as well as the defects themselves.

Losses particularised: it was considered that, having refused the Respondent’s attempt in January 2017 to rely on a report from the new expert that went way beyond the Scott Schedule, the judge should have adopted precisely the same approach at the PTR in October 2017.

The so-called cap: it was held that the judge was wrong in principle to regard the lump sum figure in the original counterclaim as a cap.

Conclusion

The judge gave the appellant permission to appeal and the Respondent does not have permission to rely on the new expert report.