Co-Operative Group Ltd v Birse Developments Ltd

This is the fifth judgment to consider applications by the Claimant, Co-operative Group Ltd ("Co-op"), to re-amend its Particulars of Claim to seek, on one basis or another, substantially enhanced damages for totally replacing the concrete floor slabs at its large warehousing facility and distribution centre known as Swift Valley Central in Rugby, Warwickshire. Previously, its claim had been based on the cost of extensive but localised repairs of the slabs. There are other heads of claim affecting other parts of the development, which are not affected by these judgments.

In the interests of proportionality, and to keep this judgment to a manageable length, I will not reiterate the background facts, some of which are set out in the chronology below and which are otherwise largely set out in the judgments of HHJ Stephen Davies (25 October 2012 [2012] EWHC 3060 (TCC)), the Court of Appeal (1 May 2013 [2013] EWCA Civ 474), and this Court (27 June 2013 [2013] EWHC 1790 (TCC) and 2 August 2013).

I adopt the chronology provided by (mainly) Junior Counsel for the Third Party, Stuarts Industrial Flooring Ltd ("Stuarts"), albeit altered and supplemented:

Co-op issued its latest application to re-amend on 5 September 2013 during the vacation and it was listed for hearing on 7 October 2013. It was supported by witness statements from Mr Fry, a partner of Co-op’s solicitors, and Mr Hulme, the managing director of Co-operative Estates who was closely involved with the decision taken to replace the concrete slabs in the April to June 2012 period. Reliance is also placed on a report from Professor Robery, the structural engineering expert retained by Co-op and its predecessor from before 2007 in relation to the floor slabs.

Broadly, Co-op, through Mr Fry and Leading Counsel, argues as follows:

Birse, Stuarts and Jubb broadly adopt the same arguments opposing the application:

It has often been said and, indeed, it is clear from its own wording that the overriding objective set out in CPR Part 1 is just that: not only do the other rules need to be interpreted in the light of that objective but that objective overrides. The Court will obviously seek to interpret the rules by reference to the words used and that will always be in the context of the overriding objective; where there is an apparent conflict or a potentially ambiguous rule, the overriding objective is to be applied or the interpretation which dovetails into the overriding objective will be favoured.

CPR Part 1 as amended as from 1 April 2013 now, materially, reads as follows (with the amendments in bold):

“1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2)

Dealing with a case and at proportionate cost includes, so far as is practicable –

…(b) saving expense;

(c)

dealing with the case in ways which are proportionate –

(i)

to the amount of money involved;

(ii)

to the importance of the case;

(iii)

to the complexity of the issues; and

(iv)

to the financial position of each party;

(d)

ensuring that it is dealt with expeditiously and fairly;

(e)

allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases, and

(f)

enforcing compliance with the rules, practice directions and orders.”

Although the overriding objective in its original form talked about "saving expense" and for proportionality in dealing with cases, there was no specific reference to the need to ensure that overall cases should be dealt with at proportionate cost. This change of emphasis is deliberate and is clear. The Court is required specifically to have regard to the need for proportionate cost and for cases to be dealt with justly and at proportionate cost by enforcing compliance with rules, practice directions and orders. Lord Dyson the Master of the Rolls said in his published paper for the Judicial College at the District Judges’ Annual Seminar on 22 March 2013 as follows:

“The rule has therefore been revised to emphasise (i) the centrality of dealing with cases at proportionate cost and (ii) the fact that the overriding objective requires the court to place a greater weight than it might have done previously on enforcing compliance."

Several Court of Appeal decisions prior to April 2013 paid specific regard to the reforms proposed by Lord Justice Jackson which were to be incorporated in the rule changes. In Mannion v Ginty [2012] EWCA Civ 1667, the Court which included Lord Justice Jackson was addressing an application for relief against sanctions following non-compliance with an unless order. Lord Justice Lewison said at Paragraph 18:

“As Mr Moss recognizes, and it has been said more than once in this court, it is vital for the Court of Appeal to uphold robust fair case management decisions made by first instance judges. It has also been said, not least by Jackson LJ, that the culture of toleration of delay and non-compliance with court orders must stop. I can find no fault with the judge's approach or with the exercise of his discretion.”

This had been preceded 10 months previously by another Court of Appeal decision, Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd [2012] EWCA Civ 224, in which Lord Justice Lewison specifically referred to Paragraph 6.5 of the Jackson report:

“…courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. The balance therefore needs to be redressed."

Lord Justice Jackson himself said in his judgment, referring at paragraph 3 to the proposed rule changes:

“2.

Non-compliance with the Civil Procedure Rules and orders of the court on the scale that has occurred in this case cannot possibly be tolerated. Any further grant of indulgence to the defendants in this case would be a denial of justice to the claimants and a denial of justice to other litigants whose cases await resolution by the court…

4.

It is currently anticipated that this revised rule will come into force on 1 April 2013. After that date litigants who substantially disregard court orders or the requirements of the Civil Procedure Rules will receive significantly less indulgence than hitherto. As I say, that rule amendment lies in the future. In the present case, on the rules as they stand, relief from sanction must be refused.”

It must be borne in mind that it is not (at least in general or usually) the Court’s function to punish a party for not complying with a rule or practice direction. What the Court invariably seeks to do is to act justly as between all the parties to the litigation. One important facet of justice recognised by the changes to the overriding objective is the need to save expense when and where it is fair and practicable to do so and to ensure that the costs incurred by the parties both individually and collectively do not become disproportionate to what is in issue. In this context, it must be appropriate for the Court to have regard to the costs incurred by particular procedural steps and to be incurred in consequence of those steps being taken. An example obviously is an application for permission to amend; the Court can have regard to not only the costs of the application to amend but also what costs are likely to be incurred as a result of such an application being granted. It may well be that in many cases justice overall (weighing up the interests of all parties) requires permission to amend being granted and that the costs of and occasioned by the amendment will be borne by the party which has sought amendment.

Great reliance has been placed by Co-op and its legal team on the well-known dictum of Peter Gibson LJ in Cobbold v Greenwich LBC August 1999 relating to amendments:

“The overriding objective (of the CPR) is that the court should deal with cases justly. That includes, so far as practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party caused by the amendment can be compensated for in costs, and the public interest in the administration of justice is not significantly harmed".

In broad terms, this is not controversial, particularly given the qualifications in the third quoted sentence. Of course, that case was decided on the basis of the overriding objective as it was originally drafted. Now, the Court must have regard to proportionality which is a recognisably important part of the overriding objective. It is therefore possible that an amendment, even if its consequences can be compensated for by a costs order, could be refused if the costs consequences take the overall costs of individual parties or the parties taken together to a disproportionate level.

I can draw from the above the following:

I will not refer to the un-amended parts of the pleading, the material ones having been referred to in earlier judgments, an example being Paragraph 28 (iii) which describes the defects as including cracking in the warehouse floors with the slab being "below the design thickness of 150 mm (less 15 mm tolerance), being only 112 mm thick in places."

Paragraph 33 was the paragraph which originally cross-referred to the defects as described in Paragraph 28 (iii) to plead that the failure of the slabs "has resulted from poor and/or inadequate workmanship and/or design in respect of the slab and/or in respect of the preparation and/or improvement of the ground underneath the slab and/or a failure to adhere to the Employer’s Requirements contained in the Main Contract". It then in its original form went on in four relatively short sub-paragraphs (i) to (iv) to give some particulars, none of which addressed the thickness complaint (referring only to complaints about joints and inadequacy of ground improvements works). Superficially at least therefore, although inadequate thickness was identified as a defect in the floor slabs and, although the opening general words of Paragraph 33 might have covered thickness, the brief particulars given thereafter did not.

The proposed re-amendment adds a new sub-paragraph (v) to Paragraph 33 which seeks to summarise the "basis for Co-op’s complaint that the slab was insufficiently thick in places” referring to measurements taken which "showed the slab to be substantially thinner…than the intended 150 mm (less 15 mm construction tolerance) and therefore unable to provide a ground floor slab which would comply with the strength and loading requirements set out in Clause 2.08 of the Specification to the Building Contract”. It goes on to provide some particulars:

“(a)

Clause 2.08 called for a Loading Category 2, Classification "Heavy". This loading classification typically refers to a floor capable of routinely dealing with traffic carrying very substantial loads such as bulk paper, bulk liquids such as paint, or other heavy industrial materials. In order to deliver a slab meeting this requirement, the designer selected Grade 40 concrete, which was sensible, and a concrete thickness of 150 mm. 150 mm was an appropriate minimum thickness for this type of floor and is the minimum thickness normally used and is typically the starting point for a design, which is to say: the designer might use a thickness greater than 150 mm, but 150 mm would be a minimum and/or start-point for an adequate design.

(b)

Clause 2.08 also called for the ground floor concrete slab to reliably deliver a pallet racking leg load of 70 kN/leg. As with overall loading classification, pallet racking leg load requirements would only be met on the basis that the floor met the design intent of 150 mm thickness (less tolerance).

(c)

Alternatively, taking various requirements of Clause 2.08 together, and based upon standard practice in the industry, the ground floor concrete slab called for by the Specification would need to have a minimum thickness of 150 mm (less tolerance).

[(d) to (g) explain, relatively non-controversially why a tolerance of plus or minus was 15 mm was appropriate]

(h)

Applying these considerations, the minimum thickness of the slab should be 135 mm at any point.

Applying the above to the floors in question, the thickness was seen to vary considerably over the slab; thin areas, less than 135 mm, were scattered over the area of the slab; and Co-op and its experts had no ability to estimate or predict where the areas of existing slab, left in place, would all be sufficiently thick to withstand the intended loading. The Court is referred to the thickness survey data at Appendix A2 of the Decision to Replace the Warehouse Slabs. For the avoidance of doubt, this degree of inadequate thickness meant that the slab’s performance, consistent with the Specification, could not be assured in service. Moreover, no amount of increase in fibre would ever have addressed these problems."

Paragraph 36 was always prefaced with the words: "The defects in, and damage to, the slab in Warehouses 1 and 2 have been caused by the breaches of contract of the Defendant," with particulars then given (the proposed re-amendments being underlined):

“(i)

The slab in Warehouses 1 and 2 did not comply with sections 2.06 and 2.08 of the Specification within the Employer’s Requirements in that the slab was not a reinforced concrete slab designed to BS8110 or was not designed or built in accordance with industry standards such as Concrete Society Technical Report TR34 and/or insufficiently thick, as explained in paragraph 33 (v) above, to meet the loading requirements of Clause 2.08. Further, this was a breach of clauses 2.1, 2.5.1.1.1, 2.5.1.1.2, 2.5.1.1.3, 2.5.1.2, 2.5.2 of the Building Contract and also a breach of the further obligations set out in paragraph 15 above, together with a breach of clauses 4.1.1, 4.1.2 and/or 4.1.3 of Defendant’s Warranty...”

(iii)

The sub-base beneath Warehouses 1 and 2 did not comply with the requirements of TR34 such that, as a result, the slab was of insufficient thickness in any event as explained in paragraph 33 (v) above…

The loss is pleaded at Paragraph 42 (again with the proposed re-amendment underlined):

“Accordingly, the Claimant is entitled to claim, and claims in these proceedings, damages for breach of contract and/or breach of duty. The Claimant's claim for damages is set out in a Schedule of Loss and Damage dated 25 November 2011 and a Re-Amended Schedule of Loss dated 5 September 2013.”

This Re-Amended Schedule runs to 44 pages and relates to the warehouse slabs claim (as well as other claims which are not controversial on this application to re-amend). Paragraphs 83E to 83J address the warehouse slab remedial works explaining that in effect from the autumn of 2011 to about April 2012 the selected remedial scheme had involved repair which involved "limited replacement of slab in accordance with the protocol agreed between the parties’ experts." It goes on (with the proposed re-amendments underlined):

“83F The Claimant concluded, as the repairs scheme was being implemented and indeed extended to cope with further areas of discovered damage as the slabs were opened up, that all of the slab in both warehouses was at risk of failure and that the only reasonable engineering and commercial response was the replacement of the whole of the slab using the incumbent remedial works contractor.

83F-1 For the reasons set out in the Re-Amended Particulars of Claim, as supported by the Decision to Replace the Warehouse Floor Slabs document, it is the Claimant’s case that the need and/or decision to replace the warehouse floor slabs was reasonable in order to remedy the defects caused by the breaches pleaded in paragraph 33 and 36 of the Re-Amended Particulars of Claim. In summary it is the Claimant’s case on causation that the concerns over the thickness of the slab in particular was, at the minimum, an effective cause of the decision to replace the whole of the slab.

83F-2 Accordingly the Claimant claims in these proceedings:

(1)

The cost incurred in remedying the defects up to the suspension of these works and the decision to replace the warehouse floor slabs in their entirety; and

(2)

The total cost of the replacement works.

83G Prior to the decision to replace the warehouse floor slabs the total cost incurred in removed the defects caused by the breaches pleaded in paragraph 33 and 36 of the Amended Particulars of Claim dated 30 August 2013 [this may be wrong date] was £370,304.58. This sum is claimed in full from the Defendant…

83I [This sets out the latest estimate for the total replacement cost was £2,493,065.20] For the avoidance of doubt, this estimate is subject to change and will be more fully particularised when the final account is agreed.

83J In the alternative to the claim for the total cost of replacement particularised above, if the Court finds that the breaches pleaded in paragraph 33 and 36 of the Re-Amended Particulars of Claim are not an effective cause of the need and/or decision to replace the warehouse floor slabs in their entirety, the Claimant is entitled to claim such proportion of the total replacement cost as would have been necessary to complete the remedial works required as a consequence of the breaches pleaded in paragraph 33 and 36 of the Re-Amended Particulars of Claim. The Claimant’s best current estimate of the cost that had to be incurred in remedying the defects caused by the breaches pleaded in paragraph 33 and 36 of the Amended Particulars of Claim dated 30 August 2013 is the estimated cost of partial replacement projected in Costs Report number eight in the sum of £822,899.07…”

The “Decision to Replace the Warehouse Slabs” document in its latest version runs to 39 pages with nine appendices and contains a chronological and apparently reasoned explanation as to how, why, by whom and when the decision to replace, as opposed to continue to repair, the warehouse slabs was made. It has been significantly altered from the document relied upon in early August 2013. Materially, it refers to a chronology of material events said to lead to the decision to replace the slabs, the context being that initially a repair option was pursued for some six months or more. The chronology concentrates on the period from late October 2011 when it is recorded that Professor Robery was finding that the concrete in terms of quality and thickness was worse than had been previously anticipated. For instance, correspondence involving Mr Roddick and Professor Robery in late October 2011 identified that the load carrying capability of the slab could not be justified but there appeared to be some doubt as to whether the full design capacity would be required for use by any further tenant. Professor Robery is said to have sought advice from Co-op’s legal team in November 2011 as to the consequences of leaving a floor in place with a thickness of less than 120 mm namely a "floor [which] would not meet the original Employer’s Requirements”; in particular an e-mail of 10 November 2011 refers to the 70kN racking leg load and the permitted minimum thickness of 135 mm. Professor Robery apparently advised on 4 December 2011 that the West warehouse seemed to be "generally compliant in terms of thickness…[with] a few thin areas that warrant further inspection…” whilst the East warehouse floor had "many non-compliant thickness areas”; in that case given "the large number of areas we need to consider the practicality of making a chequerboard of repairs, rather than replacing the entire bay areas (for the whole floor)”.

The document goes on to talk about proposals in December 2011 for further floor repairs in both warehouses but states that by 16 December 2011 three options were being considered which included replacing the floors, downgrading the loading for the racking leg load to 50kN or replacing the East warehouse and refurbishing the West warehouse. Professor Robery advised further thickness testing, re-examination of all previous core test data and checking previous load testing, all of which he was asked to pursue. It refers to advice given by Professor Robery on 12 January 2012 following further tests in which he said that there was "consistent evidence of very poor workmanship by Stuarts, creating random thinning of the floor, and the consequent failure to achieve the required minimum thickness of 135 mm"; there is also complaint of a 65 mm cross fall representing bad levelling by the contractor in the first place.

There was an important meeting on 18 January 2012 attended by representatives of Co-op, Professor Robery, Watts, BSP and Co-op’s solicitors (Mr Fry). Mr Fry’s note records that Professor Robery’s view was "that on balance [a case for breaking out the slabs] could [be made] in that the slab was not fit for the purpose, there were future risks of breakout etc…The fact remains that the Co-op was confronted with paying £1.4 million per slab to totally replace them so there may be the possibility of substantial savings but not at the risk of the slab been found defective several years down the line”. The note goes on to say that the meeting agreed "that on balance it is likely that all the eastern slab would have to come out. On balance it was possible that the Western slab would be able to be repaired in limited areas." Meanwhile, and over the following three or four months the repair option continued because, it is said, Watts and Co-op "took the view that excavation of yet further areas of defective slab should, at least, continue in order to make use of” the contractor on site, albeit that it was known that substantial areas of the slab even on this option would have to be broken out.

By 19 January 2012 the possibility of problems associated with the steel fibre content of the floor slabs was raised and Professor Robery was tasked with further enquiries in this area. Further tests were done and by 29 February 2012 Professor Robery was reporting steel fibre content test results which were first found to be "significantly below the figure of 35 kg/m³”. He reported on 12 March 2012 by e-mail that the fibre content was below this intended figure. On 17 March 2012, Professor Robery e-mailed to the effect that if there was a failing in his approach "it has been to fail to grasp sufficiently early that Stuarts produced a rogue floor that is well below the high standing that they have…”. He said that Co-op "should have followed the advice I gave in January 2012 that the variability in thickness was in itself sufficient to condemn the floor anyway."

Mr Fry set out his advice to the Co-op by e-mail on 19 March 2012 confirming that it was "agreed that reduction in the thickness of the floor, or the fibre content (or both), due to poor workmanship and control on-site, will reduce the structural capacity of the floor" saying that "the floor has never been exposed to the intended racking leg load of 70kN.” On 21 March 2012 he summarised the engineering advice that "the slabs have failed and they can justify replacement", saying that there was a “legal case for replacement rather than partial replacement…well supported by the expert and designer advice" although "the issue comes back to a commercial argument". The document then goes through the steps taken in between about May and June 2012 by which a decision was ultimately taken by the Group Board of Co-op by which replacement was sanctioned. It is not unfair to summarise the position that the Group Board was not required to go into the detail but ultimately simply endorsed the paper put forward by Mr Hulme that replacement was appropriate and sensible. It is said at Paragraph 71(v)(e) of the “Decision” document that the Group Board "did not separately consider whether replacement of the entirety of the warehouse floors was separately merited based on each of the inadequate thickness of the existing slab and the insufficient fibre content within the existing slab” but acted on the advice that the "warehouse floors could not be satisfactorily repaired and offer the strength of floor to future tenants provided by the Specification in the Building Contract".

The "Decision" document goes on to assert that the predominant reason for the advice offered by Professor Robery was the lack of thickness problem and that "absent the concerns over thickness, there would have been no reason to replace the slab[s]” (Paragraph 71(v)(f)(3)) and that "lack of fibre…was not and would never have been a separate, freestanding reason to replace the slab", the “lack of fibre…not [being] sufficiently gross, or serious, to have constituted an independent reason for condemning the slab."

Professor Robery’s e-mail dated 17 March 2012 set out doubtless what he felt was a detailed chronology of what had happened since his first involvement apparently in 2003 through to March 2012. Important parts of this e-mail relied upon particularly by the defending parties on this application are as follows:

“The [thickness/calibration testing] results, tabled to Co-op on 18 January, 2012 showed confirmation of random thinning areas of the floor based on impact echo, but with variable correlation with the core length results…

◦

It was expert advice that this figure [the 35kg/m³ Stuarts were using in its floors in 1998] was not reliable and that it needed to be verified. Fibre content had now become a critical factor that affected the area of concrete that needed to be removed (relating to the edge condition) as well as the actual capacity of the floor itself. This verification could be done by examining the actual fibre content in samples of concrete from the floor. If the fibre content was lower than 35kg/m³ then this would change the analysis above and more floor may be needed to be removed…(page 3)

◦

The [steel fibre] results [two sets verifying averages of 20kg/m³ and 25kg/m³] were presented to BSP [Co-op’s engineers] in Derby on 14 March. BSP then re-analysed the floor using the new data to see whether the low fibre content would satisfy the floor loading requirement of 70kN racking leg load for the intended thickness of 150mm

◦

The results were reported on 15 & 16 March that the lower fibre content would not meet 70kN racking leg load and that the leg load would have to be downgraded to 55kN.

◦

Fibre content and thickness are critical parameters in a SFRC floor. To meet design loads, the designer will select a concrete strength, floor thickness and fibre dosage that will produce the least cost design. In this case, the floor was assumed to be designed to have 35kg/m³ and 150mm thickness.

◦

Reduction in the thickness of the floor, or the fibre content (or both), due to poor workmanship and control on-site, will reduce the structural capacity of the floor.

◦

At Swift Valley, Stuart has contrived to produce a floor that has a highly variable thickness, with some areas reduced to 70mm as a result of deleterious materials left beneath the polythene separation membrane.

◦

The floor has never seen...the intended racking leg load of 70kN…This type of loading was not used by Woolworths but could happen with a future tenant…

◦

There remains a high probability that the floor could fail in service due to undetected thin areas beneath or adjacent to racking legs, irrespective of the fibre content.

◦

The confirmation that the fibre content is also low and below what would be needed in a design of compliant 150mm thickness, is also reason to condemn the floor.

◦

In Swift Valley, we have both situations." (page 4)

Mr Hulme’s statement of 4 September 2013 (71 paragraphs) addresses and seeks to support the summary given in the "Decision" document about how, why, when, in what terms, on what basis and by whom the decision was taken within Co-op to replace the floor slabs.

Professor Robery’s report dated 4 September 2013 primarily addresses an argument which has not particularly been pursued by the defending parties on this application, namely that the steel fibre content and the thickness of the concrete are inextricably linked. Professor Robery’s view is that this proposition is not correct. However, he goes on to say the following which may be germane to the application:

“4.

In relation to both fibre and thickness, then in a situation where the floor has a slightly lower steel fibre content than the designer intended (as to repeat the situation that occurred at Swift Valley, namely not a "gross lack of fibre" that lost the enhanced flexural strength, but an average reduction of 5 kg/m³ from 30 kg/m³ to 25 kg/m³), that reduction would not give me undue concern provided the total is greater than the 20 kg/m³ threshold mentioned above and the thickness was compliant…

6…To conclude;

Thickness as a cause

Thickness has a very significant effect on the performance of the floor, such as its racking leg load resistance. Inadequate thickness is often in itself sufficient reason to condemn a slab. No floor intended to be 150mm in thickness should at any point be below the 135mm that is permitted by TR34.

Fibre as a cause

Deficiencies in steel fibre content alone (provided that the deficiencies were not a "gross lack of fibre") would not give rise to particular concerns, as the effect of fibre dosage on load capacity is relatively small. I am not aware of any floor where a slight reductions in steel fibre content had led to repair or removal, unless accompanied by other significant deficiencies is especially inadequate thickness."

It is very noticeable that there is now, and indeed since the Court of Appeal’s decision has been, a primary emphasis by Co-op on the thickness complaints. It is clear that HHJ Davies and the Court Appeal (although they formed different views about the outcome of the re-amendment application) all thought that the re-amendment was primarily to add the steel fibre content claim (leading to the need to replace). Lord Justice Tomlinson in the Court of Appeal made it clear in effect that he interpreted the re-amendment as raising "facts wholly different in kind from those hitherto relied upon, viz, the inadequate steel fibre content" and "giving rise to the need to replace the entirety of the two floors", being consequences "wholly different in kind from those hitherto alleged" (Paragraph 23). There can be, now, no hint or suggestion that the re-amendment (which was the subject matter of the application before HHJ Davies and the Court of Appeal) pleaded anything other than it was the steel fibre problem which justified the replacement option. Both courts were of the view that the failure of the slabs to meet the 70kN loading was not properly (if at all) pleaded as a breach of contract either originally or in the first re-amendment draft proffered by Co-op.

It is also noticeable that there has been in the latest series of re-amendments an (arguably unattractive) change (at least in emphasis) by Co-op in relation to the impact of the steel fibre on the decision. There appears to have been a change in Professor Robery’s view or recollection (as the case may be) as to the importance (or unimportance) of the steel fibre content findings. That can be seen by comparison of his views expressed in his e-mail dated 17 March 2009 (fibre content critical, along with thickness) and the apparent dismissal in his report proffered to the court for this latest application (steel fibre deficiencies would not give rise to particular concerns). The latest position of Co-op also (lack of fibre in effect did not constitute an independent reason for condemning the slab and would never have been a separate freestanding reason to replace the slab), at least superficially, appears to be inconsistent with the re-amendment put before HHJ Davies and the Court of Appeal as well as the chronology (being a determination in 2011 and going through to April 2012 to repair rather than replace with the steel fibre deficiency being apparently the primary new factor to have emerged by the latter time).

The Court on 27 June 2013 was minded broadly to allow an amendment to add or substitute a slab replacement claim attributable to the already pleaded thickness complaints. However, all parties and the Court accepted that, as a condition of permission to amend, the Claimant would be required "to spell out in pleading form (supported by the key contemporaneous documents) how, why, when, in what terms, on what basis and by whom the decision was taken to replace the floor slabs" (Paragraph 12 of the judgment). I imposed another caveat which was that Co-op had to spell out in its draft pleading "the relevance both to the description of the pleaded defects and the breach pleading of the 70kN". The reasons broadly for these requirements were that the Court considered firstly that the inconsistency between the first re-amendment disallowed by the Court of Appeal and the apparently new causation case should be spelt out, secondly, that proper particulars should be provided on what was not at that stage a sufficiently clear case and finally, the Court wanted to be satisfied that the fully particularised case did not offend against the Court of Appeal’s judgment.

There can be little doubt that the current case as pleaded in the latest proposed re-amendment could have been pleaded pretty well in its current form as long ago as April or May 2012. Instead, Co-op undoubtedly by its then proposed re-amendment concentrated its field of fire on the steel fibre deficiencies albeit that it is now said by Co-op and indeed its advisers that it always was the thickness problems which justified replacement and that the steel fibre deficiencies were effectively coincidental. If, as Co-op now says, it was always the concrete thickness problem that was the dominant or primary cause of the decision, need or desirability to move from the repair to the replacement option, it must follow in logic that Co-op could and indeed should have pleaded that in mid-2012. Even if it was the concrete thickness problem together equally with the steel fibre problem that led to the move to replace, again that could and should have been pleaded by way of re-amendment at that time.

I use the word "should" in the preceding paragraph deliberately. This was a claim which was issued almost 12 years after the project to which the claim relates was completed. Whilst commercially Co-op only came into the picture effectively in late 2008 or early 2009 following the demise of Woolworths, it issued the proceedings in September 2010 and, particularly given the time lapse since the project was completed, it was incumbent on Co-op as the Claimant to "get its tackle in order". It was given a stay of proceedings to enable the Pre-Action Protocol process to take place (and I do not criticise it for that). Over a year later, it discontinued its proceedings against Stuarts and Jubb presumably because it could not maintain them. By early 2012, contemporaneous documentation now put before the Court demonstrates that there was a major debate going on within the Co-op team as to whether to replace the slabs or not. Whilst initially Co-op appears to have decided not to follow Professor Robery’s advice in January 2012 to replace (and I would not be critical of it in the context of this application for so deciding), by late March or early April 2012 Co-op was getting clear advice from all angles to replace (chronologically at least following the steel fibre test results). Indeed, this was passed on to Birse by a solicitors’ letter of 24 April 2012. It seems then to have taken 9 or 10 weeks before it (at least formally) took the decision to replace and almost 3 months (and following a reminder at a CMC in June) to produce a draft re-amendment. There seems to have been no appreciation by Co-op of the need to produce promptly a draft re-amendment. A further two months went by before the hearing of the application to re-amend could be heard and, unsurprisingly given the complexities raised, it took HHJ Davies some weeks before he produced his judgment. Meanwhile the trial date fixed for 26 November 2012 had to be vacated.

A party which, relatively late on in the proceedings (and perhaps particularly where those proceedings relate to matters which happened a long time before), decides that it wishes to seek permission materially to amend for reasons which are likely to provoke controversy with the other parties, should generally take the responsibility for the delays engendered by the application and the amendment being granted. The risk of a controversial procedural application such as one involving serious amendments being taken to the Court of Appeal and the unavoidable delays engendered by that process are foreseeable. A foreseeable risk also covers at least the possibility (particularly where permission to appeal has been granted by the first instance judge) that the Court of Appeal might reverse the decision granting permission to amend. Whilst in this case I would not as such criticise Co-op for the further delay to the overall proceedings attributable to the appeal process (in the sense that it would have little control over when the appeal hearing was and the subsequent judgement handed down), it is responsible for the delay to the proceedings because it initiated the re-amendment application; that was the risk it took in pursuing a controversial application. The delay represents the consequence of what in this case turned out to be a failed application to re-amend and, for that failure, it is Co-op alone which is responsible.

That responsibility is even the greater because Co-op did not put forward a re-amendment (such as is now put forward) which represented its real case, which is, after all that has gone on before, that it was the thickness problems rather than the steel fibre problems which led to the replacement of the slabs.

It follows in logic that, if Co-op had by way of re-amendment pleaded its real case at the right time, there would have been a much greater prospect of permission to re-amend being granted (because the thickness complaints had already been pleaded and what was changing was primarily the damages consequences). The defending parties, and in particular Birse, who had been given and had taken the opportunity to monitor or at least to keep a weather eye on what was happening on site, would have been hard put to challenge such an amendment. Of course, as the Court of Appeal held, the case advanced was a new one which had not been pleaded before, it was barred by limitation and it did not on analysis arise out of the same facts or matters as those which had thitherto been pleaded.

I have no real doubt that in practice, if the current re-amendment had in substance been proposed in mid-2012, there would have been a reasonable chance of holding on to the trial date of 26 November 2012 and a very good chance of retaining the revised trial date of 29 April 2013.

The first application to re-amend before the London TCC was inadequately particularised and therefore permission to re-amend was given only conditionally. The conditions were not complied with and little or no good excuse has been offered for that. Thus, a further period of delay to the overall trial programme was occasioned by that failure on the part of Co-op.

Further delay has arisen because Co-op has felt it necessary to apply (for the fourth time and by way of a fifth draft) to re-amend its Particulars of Claim in a way which could and should have been proffered well over four months ago. The result of all this is that the earliest date by which this matter can be brought to trial is 3 November 2014 which is the third and current trial date. I fixed that date on 2 August 2013 taking into account a reasonable period for the further steps to trial to be taken.

There remain important further steps to be taken which have already inevitably been delayed by the latest application. In pleading terms, this mostly relates to the consequential pleadings by Birse against Stuarts (who have yet to put in a Defence) and down the line to Jubb. Disclosure is yet to take place and that is likely to have to be put back. There are witness statements to be exchanged and extensive expert involvement. Waiting "in the wings" is a further TCC Claim brought by Birse against an organisation called Geofirma Soils Engineering Ltd; this Claim was issued on 8 March 2013 and relates to allegations concerning the soil stabilisation (sometimes referred to as ground improvement) works said to have been carried out by this defendant; there has as yet been no order that this matter be heard at the same time as the Co-op proceedings. Birse has explained that it wished to see what was happening on the amendments before deciding whether to seek an effective joinder of the two sets of proceedings; this is not unreasonable given the current hiatus on the pleadings. If Geofirma are properly brought in, the timetable to trial will have to expand to accommodate. The decision on that has had to be deferred.

My judgment is that the further delays brought about by this latest application to re-amend and likely to arise if the application was allowed will and would cause significant disruption to the programme leading up to the trial in November 2014 and give rise to a real risk that the current trial date will be jeopardised. I can not say, yet, that this risk will eventuate but the risk is not insignificant. There is not much “float” in the programme: all the steps are programmed to be complete by late July 2014 (when the PTR is to occur) but they will probably have to be put back somewhat to reflect the further delays since early August 2013.

Thus, the failure on the part of Co-op properly to seek to re-plead its case in mid-2012 has led probably to a delay of some two years or at the very least some 19 months in the trial of this action. There is a significant risk that there could be even further delay if the November 2014 trial date has to be postponed.

I have formed the view based on the evidence put before the Court that this re-amendment application should be dismissed. My reasons are as follows:

For the avoidance of doubt, I am not critical of Co-op in relation to the argument that its professional team did not carry out steel fibre testing until March or April 2012. I have no evidence that any of them acted negligently in this regard; at worst, there was arguably merely an optimism that Stuarts had actually provided the necessary steel fibre content such that further investigation was not then required. I do not accept as at all convincing Stuarts’ Counsels’ argument that, by the wording of Paragraph 83J of the draft Amended Schedule of Causation, Loss and Damage ("cost…to be incurred in remedying the defects caused by the [thickness and joints] breaches is the estimated cost of partial replacement projected in Costs Report No 9 in the sum of £822,899.07…”), Co-op must be taken as saying that those breaches did not justify the decision to replace the floor slabs. This is because it is pleaded in the alternative.

It is difficult to speculate what this Court would have done in June 2013 if it had been faced with the latest version of the re-amendment. The judgment on 27 June 2013 addresses the principle that an amendment could properly be allowed if all that it was doing was adding a case for a replacement causatively attributable to the already pleaded thickness complaints. None of the arguments about prejudice or the amended overriding objective were actively deployed at that stage by the defending parties. What has now emerged and which was not wholly clear to the Court in June 2013 (as it is now) was that this latest pleaded case is one which could always have been pleaded back in mid-2012 and that the steel fibre problems were tangential to the decision to replace the slabs. It does not help to speculate. All the Court can do is decide what is fair and in line with the overriding objective now.

Co-op’s application to re-amend is refused. I encouraged the legal teams at the conclusion of the oral hearing (having indicated this outcome) to agree a revised timetable to bring this matter to trial if at all possible in November 2014; this should be just about achievable given that I am not allowing the re-amendment. If Birse wishes to seek to have its Geofirma proceedings joined to these proceedings, it needs to move with haste. So far as costs are concerned, I anticipate that the defending parties will seek their costs but they may feel that it would be difficult for the court to do a summary assessment and that an interim payment on account of costs may be more appropriate. At the handing down of the judgement, I will deal with any issues on further directions and costs.

I had indicated that I would give permission to appeal to the parties, time for appeal against my two earlier judgements having been extended. I must make it clear that I do not consider that an appeal would have any real prospect of success. However, I am anxious to ensure that the appeal process is not extended with the chance that the trial timetable (as before) would be upset; I can also see that given its earlier decision the Court of Appeal would have a legitimate interest in determining whether any of my rulings have (unwittingly) contradicted the wording or the intent of that decision. There may also well be a genuine public interest in the interpretation which I have put upon the amendments to the overriding objective and its application to the circumstances in play in this case.