Iggleden v Fairview New Homes (Shooters Hill) Ltd

This is a building defects case. The claimants, Mr. and Mrs. Iggleden, make a series of claims against the defendant, Fairview New Homes (Shooters Hill) Limited arising out of deficiencies in their new home at 2 Cairns Mews, Oxley Gardens, Shooters Hill, London SE18 4JZ. The claim is estimated to be worth between £200,000 and £250,000. The trial is due start on 18th June 2007, which is 10 working days from today.

Unfortunately, there were delays in the preparation of this matter for trial, and at the PTR on 11th May, I spent most of the time making orders to ensure that the case could be brought back on track, so that the trial date could be met. Happily, I understand from what I have been told today by counsel that that timetable has been complied with and that, through the hard work of the experts, all of the various deadlines that I ordered on 11th May have been met. The matter is therefore on course for the trial to start on 18th June.

Also at the PTR on 11th May, the claimants made what has subsequently been referred to as an ‘informal application’ to amend their statement of claim to add a claim for ‘blight’; that is to say, the residual diminution in value in the property following the completion of the necessary remedial works. The proposed amendment identified on that occasion was deficient, because the drafting included blanks. There was the further problem that there was no expert evidence to support the amendment, it being a claim which could only be made with the assistance of expert valuation evidence. For those reasons I rejected the application to amend on 11^th May.

By an application dated 24th May 2007, the claimants now seek to make a fully-pleaded amendment to their statement of claim to add the blight claim. The amendment reads as follows:

Together with that proposed amendment, there was a copy of a valuation report prepared by a Mr. C. G. Carey. The report is undated, but was not provided to the defendant until the service of the proposed amendment and the application to amend. This morning, I was provided with a further document which is described as appendix 3 to that report. On closer analysis, this does not appear to be a document to which any reference is made in the body of the report itself, but is instead an additional part of Mr. Carey’s report, in which he identifies three other properties in the vicinity where he says diminution in value due to structural and other defects has been caused. That is a matter to which I return a little later. It is of course to be noted that this further expert material has been provided today, which is some three weeks after the pre-trial review, when the possibility of this amendment, and the absence of expert evidence to support it, were first trailed.

The relevant principles governing late amendments are discussed in the White Book in the commentary on CPR Part 17.3, particularly at paragraphs 17.3.5 and 17.3.7. Distilling those paragraphs, the following points emerge:

On behalf of the claimants, Mr. Coney submits that the blight claim is a discrete issue which is capable of being ready for hearing at the trial on 18th June. He says that, given the progress that the experts have made in relation to the other matters, the defendant will, effectively, have more time in which to deal with this new issue before the trial. Against that, Mr. Letman, on behalf of Fairview, argues that the application is made late for reasons which are the responsibility of the claimant, and that it is simply not possible for the defendant to be ready to meet this new allegation properly by the time of the trial. He also says that, in any event, if the amendment were allowed, the parties would be on an unequal footing.

There are three reasons why, in the exercise of my discretion, and in accordance with the principles that I have noted above, I consider that the application to amend should be refused. I outline each of those briefly below.

Firstly, as I discussed with Mr. Coney, there is no explanation of how and why this application is made so late, with just ten working days until the trial. This is particularly surprising given that, during the hearing on 11th May, I was informed that the blight claim had first been identified in a report provided to the claimants in July 2005. That was a year before the commencement of those proceedings. I do not know what happened to that advice or why that blight claim was not included in the original statement of claim. No explanation has been provided as to why the claim was not advanced then, but is now advanced so late.

Mr. Coney said that in the overall scheme of things this was a minor matter. I accept, of course, that in accordance with the principles noted above, the most important factor in the exercise of the court's discretion is the possible prejudice to the parties caused by a late amendment, and in particular whether or not that would lead to an adjournment of the trial. I do not, however, accept that the reason for the lateness of the application is a matter which is irrelevant to the exercise of the court's discretion. It is for a party seeking to make a late amendment to endeavour to explain how and why the amendment is being made so close to the trial date. The absence of any such explanation is therefore, I am bound to say, a factor which has weighed in the exercise of my discretion in this case.

Secondly, I am in no doubt that, if I allowed the amendment, Fairview would not be able to deal with this new allegation in the 10 working days that they have until the trial commences. The new allegation involves expert valuation evidence. It requires the valuer to understand what the nature of the remedial works might be and then to reach a view as to:

I accept Mr. Letman's submission that the claimants have underestimated the work necessary to deal with this (albeit discrete) issue. It seems to me that the following would have to be done within the next 10 days if the defendant is to be ready to deal with the issue at trial:

My view that those matters could not be accomplished in that time is, I think, confirmed by the fact that the delays on the claimants’ own side make clear that this is not a matter that can be dealt with simply and quickly. First, of course, there is the point that it took them two years to try and make this claim at all. Secondly, it took them 13 days, from 11th May to 24th May, to make the application on the basis of an accompanying expert's report. It took another 7 days for the important further part of the expert's report, appendix 3, to be provided. Taking into account all of that time, it is, I suggest, fanciful to imagine that the defendant can be ready to deal with all of those matters in the remaining 10 working days before the trial.

Thirdly, even if I was wrong and the trial did not have to be adjourned, I consider that, if I allowed the amendment, I would place the parties on a wholly unequal footing during the critical fortnight leading up to the trial. The claimants would not need to concern themselves any further with the blight claim. The defendant, on the other hand, would have to spend a disproportionate amount of time seeking to accomplish the steps referred to at paragraph 12 above. It seems to me that that would inevitably create detriment to the defendant's trial preparation; therefore, it would be unjust, and contrary to the overriding principle, to allow the amendment at this late stage.

For those three reasons, therefore, I reject the application to make the late amendment to add the blight claim to the statement of claim.