Gabriel v Hayward & Ors

I have before me an application to amend the particulars of claim by way of substitution. The original particulars of claim were a document of 18 pages. The proposed amended particulars of claim are a document of 69 pages. The claim arises out of works carried out to the home of the claimant, Mr. Peter Gabriel. He is the owner of residential property in London which he bought in 1992, intending to use it as his London residence. It had been used as a Freemasons’ lodge. It consisted of three major parts: the main house, the temple and the rear apartment. When he bought it it was in a dilapidated condition. He wished to carry out substantial works of alteration, modernization and refurbishment to it. The first four defendants trade in partnership as Boyden & Co. (“Boyden”), quantity surveyors. The sixth defendants (“SPL”) were design consultants appointed to carry out design services and supervisory services. All those defendants were employed to carry out professional services in relation to the works. The seventh and eighth defendants were contractors who manufactured and supplied articles made of Jesmonite material.

It is claimed that there were substantial cost and time over-runs, even allowing for changes in the design that the claimant ordered from time to time. The claim is a claim for damages. There is a claim, described by Miss Hutton as a global claim, for excessive costs, represented by the difference between the actual cost of the works and a reasonable cost; a claim for excess fees paid to Boyden and SPL in consequence or in any event; a claim for money wasted in faulty work on the temple and other faulty work; a claim for the cost of meeting a delay claim from the contractor; and, by implication, a claim for general damages for inconvenience, distress and loss of amenity.

The claim is pleaded by way of a long and fairly detailed narrative. It is not said that Boyden were appointed on any particular occasion. It is said that by reason of “the matters aforesaid”, i.e. the matters narrated, they were engaged, or alternatively they themselves by their words and conduct undertook, to act as the claimant’s agents and advisers in relation to the control and management of the project. The claim included an allegation of breach of contract and breach of statutory duty, which during the course of the hearing was withdrawn in relation to the first four defendants and the sixth defendant. One of the objections to the proposed amendment that have been made on behalf of the defendants is lack of particularity. For example, the damage claimed to have flowed from each particular matter complained of is not separately quantified. Miss Hutton said that it was not possible to do that, partly by reason of the nature of the case and partly because the claimant did not have the necessary documents.

A lack of particularity in pleading a claim creates difficulties for defendants in preparing their case to meet the claim. That point has been justly emphasized in this case on behalf of the defendants. But there are cases where a claimant cannot give particulars. He may for example have no written record of, and be unable to recall, the date or place where a statement was made. His inability to give particulars in such a case should not preclude him from having his claim heard, unless it is clear that there is no real prospect of his proving his claim. That is not this case.

The opposite criticism is also made, that the proposed amended particulars of claim are prolix. It is true that the statement of the facts on which the claimant relies is, taken as a whole, by no means concise, as envisaged by CPR 16.4(1)(a). It is true that many paragraphs and sub-paragraphs contain more than one allegation. It is true that the facts and matters alleged are not all set out in chronological order. It may be that paragraphs 5.6.4(3) and (4) of the Queen’s Bench Guide have not been complied with, as submitted by Mr. Pelling. But in my judgment there is no significant amount of unnecessary repetition. Although it is a long document, the language is clear and, save for numerous cross-references, is not difficult to follow. I am satisfied that from the nature of the case, the document could not have been succinct.

The procedural history relating to this application is as follows. The first case management conference took place on 30^th January 2004. At that hearing it was common ground that the particulars of claim and draft amended particulars of claim were unsatisfactory. It was submitted on behalf of the claimant that he had insufficient documentation in order properly to particularize his pleading. Accordingly, I made an order for standard disclosure by 4 p.m. on 27^th February. There being no draft amended particulars of claim on which the claimant wished to rely, in order to save costs I gave the claimant permission to amend the particulars of claim by way of substitution after disclosure conditionally upon there being no objection on the part of any defendant to the amended pleading. In the event of such an objection being made (as happened) the claimant was to apply for permission to make the amendment.

It is said that the defendants, in particular Boyden, failed to maintain proper records. I am unable to decide that point, though apparently Boyden’s disclosure totals more than 3,000 items. There is a conflict of evidence in witness statements, which I cannot at present resolve, whether the claimant fully used his opportunity to inspect the disclosed documents.

Turning to more specific points, I first consider questions relating to limitation. The claim form was issued on 31^st October 2003. It is said that the draft amended pleading pleads claims previously made (i.e., in the original particulars of claim) which were statute-barred when originally made, and that permission to amend to include those claims should be refused on the ground that the claim is bound to fail. I reject that submission. The defendants lose no limitation defence by my allowing an amendment including those claims.

The combined effect of the tailpiece to paragraph 6, the introduction to paragraph 38 and the introduction to paragraph 39 of the proposed amended particulars of claim is that breaches of duty on the part of Boyden are alleged to have occurred from March 1996. The corresponding date in the existing particulars of claim is August 1996. More generally, paragraph 39 pleads breaches of duty in more detail than the corresponding existing pleadings (paragraphs 18 and 19 of the particulars of claim, and further information under paragraph 19). In particular, a breach of duty to advise the claimant as to the provision of design and specification services is specifically pleaded for the first time. In my judgment, those proposed amendments, if they involve a new claim at all, arise out of substantially the same facts as the corresponding claim in the existing pleadings.

The proposed amended particulars of claim allege for the first time a duty on the part of SPL to inspect the work of the contractor and sub-contractors. Mr. Holwill submitted that the claimant should not be allowed to make that new allegation. In my judgment, such an allegation is implicit in the existing pleadings. They contain allegations of a duty to supervise the works (in answers to requests for information numbers 1, 64 and 81). They include a claim for damages in relation to defective works which is repeated, with amended figures, in the proposed amended particulars of claim. The latter document does, however, contain additional allegations of defects. They are set out in a table of 28 items. The dates when those defects are alleged to have caused damage to the claimant are not stated. If the damage was caused between 31^st October 1997 and 26^th July 1998, SPL would be prejudiced if an amendment to the particulars of claim incorporating them were allowed, since it would lose a limitation defence that would be open to it if the allegation were, instead, incorporated in a new claim. I refuse the amendment in so far as it contains the passage in question.

There is a claim in paragraph 43(d) against Boyden for the costs said to have been incurred by the claimant in investigating, suing and compromising his claim against the fifth defendant. It is said that that claim is bad in law and the claimant should not be permitted to raise it. I am not prepared at this stage to decide the question whether that claim is bad in law.

In the proposed amended particulars of claim, Windsor Workshops, the seventh and eighth defendants, are said to be liable to the claimant for defective internal elements made of Jesmonite. It is pleaded that Windsor Workshops were sub-contractors to REL, main contractors, and owed a duty of care to the claimant. Mr. Dignum submitted that there was no collateral duty of care where, as here, the claim was for pure economic loss. He relied on Henderson v. Merrett Syndicates Ltd. [1995] AC 145, 195 where Lord Goff of Chieveley said that there was generally no assumption of responsibility by the sub-contractor or supplier direct to the building owner. In my judgment, the facts in this case as already pleaded, and as proposed to be pleaded, are sufficiently complicated and unusual to render it uncertain whether the general proposition referred to by Lord Goff applies.

Mr. Dignum also submitted that the claim in respect of the Jesmonite internal elements was a claim for wasted costs, and in principle such costs are not recoverable. The claim is for the cost of those elements, which are said to have been replaced by something at least as expensive. Since the cost of the elements may represent the quantum of damages, I am not satisfied that the claim is bound to fail.

It is said that some claims in the proposed amended particulars of claim are mutually contradictory and mutually exclusive. There is no objection to contradictory claims being made in the alternative. It is said on behalf of Mr. Gabriel that his knowledge of what went on is somewhat sketchy. I am not satisfied at this stage that it will be impossible for the proposed amended particulars of claim to be verified by a statement of truth.

The principal objection to the proposed pleading, on the part of Mr. Pelling and Mr. Holwill at any rate, is lack of particularity, coupled with the diffuse nature of the pleading. That makes it difficult, and consequently expensive, for the defendants to plead to the proposed amended particulars of claim. That in my judgment is the most powerful argument against allowing the amendment. Mr. Holwill raised the point that an order for costs would not be an adequate remedy. He referred specifically to an allegation of breach of duty against SPL made in paragraph 54(b) of the draft amended particulars of claim. The relevant passage is:

The answer is that it is the claimant who will have to peruse the drawings and identify those which did not correspond with his instructions. I recognize that nevertheless the proposed pleading, as it stands, will involve the defendants in very substantial expense in dealing with it.

I do not consider that the claimant can substantially simplify his statement of case. There is no point, in my judgment, in allowing him to make a third attempt. If I do not allow this proposed amendment, the claim will fail altogether or it will proceed under the existing pleadings. It is common ground that the existing particulars of claim are unsatisfactory. In my judgment, justice, the paramount consideration, requires me to allow this amendment. In reaching that conclusion, I have balanced consideration of justice to the claimant with consideration of justice to the defendants. In so far as it may not be possible for the defendants to be adequately compensated in costs, that is the lesser evil. But it might be mitigated by an order for further information before amendment of the defences.

I thus allow the proposed amendment to the particulars of claim, subject to deletion of the passages which, during the course of argument, Miss Hutton conceded should be deleted, and also subject to deletion of the table mentioned in paragraph 10 above and of the wording immediately associated with that table.

I give leave to the defendants to amend their defences, whether in the ordinary way or by substitution at their option, consequentially on the amendment to the particulars of claim.

It is clear that the case management powers of the court will have to be used in order to render this case conveniently triable. It may be that after the close of pleadings a list of issues should be prepared.