BMG (Mansfield) Ltd & Anor v Galliford Try Construction Ltd & Anor

This is an application by the Claimants for permission to call expert evidence from a fresh expert architect, a Mr. Martin Edwards, a partner in the firm of architects Probyn Miers, and to amend the Particulars of Claim.

The Claimants are or were at the material time the owners of a shopping centre which suffered a serious fire on 28 October 2004. The Claimants’ case is that as a result of inadequate fire protection in the roof space and eaves canopies of the centre, the spread of the fire and consequent damage was far more extensive than it should have been.

Galliford was a design and build contractor, and the Second Defendants (“the architects”) were engaged by Galliford to perform its design obligations. There were no warranties given by the architects to the Claimants, so the architects only owed the Claimants a duty of reasonable care and skill at common law.

The centre was built in two stages: Phase I involved the construction of the buildings with an open plan layout, for which the contract was entered into in 1998. Phase II involved conversion of the building from an open plan layout to compartmentalised shop units. The contract price was £2,198,203. That contract was made in 2000/01.

The principal complaints by the Claimants are that:

Some of these problems are alleged to have stemmed from the fact that such protective barriers as were installed in the roof void or eaves canopies during Phase I were often not in the right place so as to provide continuity with the compartments between the shops that were installed during Phase II. As a result the fire protection was discontinuous. However, no complaint is made, or is intended to be made by the proposed amendments, in relation to the work carried out during Phase I. The complaint is that in the design and/or construction of the Phrase II works these problems were not addressed so that there were discontinuities or gaps in the fire protection.

Mr. Bob Moxon-Browne QC, appeared for the Claimants, instructed by Berrymans Lace Mawer (“BLM”), Ms. Fiona Sinclair QC appeared for the First Defendants (“Galliford”), instructed by RPC, and Miss Nerys Jefford QC and Mr. Samuel Townend appeared for the Second Defendants (“the architects”), instructed by Dentons.

Mr. John Streeter, of Bickerdike Allen Partners (“BAP”), was instructed by BLM shortly after the fire and he visited the site and took photographs on 3 and 4 November 2004. He must have been aged 61 or 62 at the time. He joined BAP in 1981, having previously been with other major architectural practices. He has investigated building defects in buildings of both modern and traditional construction.

Mr. Streeter produced a report in April 2005, but this was not stated to be a CPR compliant report. The report was disclosed to the Defendants on a without prejudice basis in November 2006. No further reports by Mr. Streeter (if any exist) have been disclosed.

In April 2007, 18 months after the fire, the Claimants issued a pre-action protocol letter. Galliford’s very detailed response was a 40 page letter dated 25 November 2008. This had followed requests for substantial documentation which was provided by the Claimants following the issue of the protocol letter. Galliford rejected the Claimants’ claim in its entirety.

On 1 December 2008 Dentons, for the architects, sent their response to the Claimants’ pre-action protocol letter. That was also a very detailed response. It invited the Claimants to withdraw their claim against the architects.

The Claim Form was issued on 27 October 2010 - some two years after both Defendants had rejected the Claimants’ claims It was served, together with Particulars of Claim, on 22 February 2011. During the intervening period there had been sporadic attempts to arrange a mediation. The Defendants appear to have taken the view that a mediation was unlikely to be fruitful. Matters were not assisted by the fact that during this period Galliford changed solicitors.

During the remainder of 2011 the Defendants served defences and made cross claims against each other. On 3 April 2012 there was a without prejudice meeting of the parties’ experts. Mr. Streeter attended as the Claimants’ expert architect. At this meeting Mr. Streeter disclosed a letter from the Bolsover District Council to him dated 28 February 2006. This letter explained in some detail why Building Regulations approval was granted for the Phase II design. Unsurprisingly, this letter is relied on by the Defendants.

In a witness statement dated 7 August 2013 Mr. Roger Jowett, senior partner of BAP, said that following an unsuccessful mediation in May 2012 Mr. Streeter told him that he did not want to continue with the case. Mr. Jowett therefore offered to take over his role as an expert. Ms. Elizabeth Whittingham, an associate solicitor at BLM, said that at the time of the meeting it was still the Claimants’ intention that Mr. Streeter would continue to act as the Claimants’ expert until the conclusion of the trial. She said that it was only on 29 May 2012, about one week after the mediation, that Mr. Jowett told her that Mr. Streeter no longer wished to act as the Claimants’ expert.

There is no evidence before the court from Mr. Streeter and so I do not know whether his wish to retire was driven by his age or the fact (if it was a fact) that he had had a bruising time at the experts’ meeting and/or the mediation, or a combination of all three. On the face of it I can see nothing unreasonable about an expert who, approaching his seventieth birthday, wants to be relieved of his duties as an expert in litigation that he could reasonably have expected to have been concluded some years earlier and which had no immediate end in sight. It is well known that giving contested evidence as an expert witness in a major trial can be very stressful.

Ms. Whittingham said that in June 2012 BLM were instructed to undertake a complete review of the Claimants’ position in the litigation. This included, she said, taking a second opinion on the correctness of the advice given by Mr. Streeter in his April 2005 report. It is clear that Mr. Edwards had been selected by late June 2012 because arrangements had to be made for the provision of a “Chinese wall” within his firm, as recorded in e-mail correspondence at that time. Although Ms. Whittingham does not say precisely when Mr. Edwards was instructed, it appears to have been in about mid-June or so.

The architects submit that no good reason has been shown for Mr. Streeter wishing to withdraw as an expert other than “merely a personal preference”. It is said that the timing of the announcement of Mr. Streeter’s wish to retire - just after an unsuccessful mediation - gives rise to concern. In her skeleton argument Miss Jefford submitted that it is also of concern that BLM withheld the news “in Mr. Jowett’s email of 29 May 2011 that Mr. Streeter wanted to withdraw from being an expert”. It was said that this gives rise to suspicion that the Claimants did not want to disclose this information “until they had sourced, obtained and considered another report from another expert”. This, it was submitted, was classic “expert shopping” behaviour.

If the factual basis for this second ground of concern was as stated, there might have been something in it. But it appeared to have been based on a simple mistake: Mr. Jowett’s email was dated 29 May 2012, not 29 May 2011. However, Miss Jefford submitted that the error in the date was a simple typing error, which I accept, and does not affect the point that was being made. I disagree. BLM told Dentons in June 2012 that they wished to instruct Mr. Edwards (see paragraph 7 of Jill Heaton’s witness statement, and the email exchanges referred to in paragraph 16 above). By that stage the Claimants had neither obtained nor considered a report from another expert, as the Defendants knew. As a matter of current perception, whether the Claimant’s reason was that they were unhappy with Mr. Streeter, or the fact that he had indicated that he wished to withdraw from the case may have been relevant. But for the purposes of this application, it is what actually happened that matters - and it was not the scenario suggested by the architects.

In my judgment there is no substance in the first criticism either. As I have already observed, there is nothing particularly surprising about the fact that Mr. Streeter announced his wish to withdraw from the case after the unsuccessful mediation. It is just as likely that he had hoped that the mediation in May 2012 might conclude the litigation and that he had been prepared to continue to act as the Claimants’ expert until then. Once it was apparent that the mediation had been unsuccessful, he might understandably have wished to reconsider his position.

Both Defendants rely on a letter from BLM dated 7 August 2012 in which they wrote:

“… we feel that it is not appropriate to refer to our clients’ proposal as ‘expert shopping’. The issue is not that our client obtained an expert report and disliked it; it is that the other parties to this action have recently cast doubt upon it.

We add that it was this which ultimately led to the breakdown of the mediation and therefore this is why it must be addressed before the mediation reconvenes.”

Miss Jefford says that this is just another way of saying that the Claimants no longer have confidence in the expert report produced by Mr. Streeter.

Ms. Sinclair, by contrast, put the point in a rather more nuanced way. She submitted that there has been an “appearance of expert shopping” to which the appropriate response is to require disclosure of all the former expert’s undisclosed reports as a condition for permission to call the new expert. She submits, correctly in my view, that the court has the power to do this.

In fact, this is not a case where the Claimants require permission to call a new expert because they have not yet applied for or received permission to call any expert. However, CPR 35.4(1) provides that no party may call an expert or put in evidence an expert report without the court’s permission. As things stand at the moment all parties require permission to call expert evidence because no such permission has been given. The Claimants’ application is effectively pre-empting the application that would inevitably be made at the first case management conference.

Since the Claimants require the court’s permission to call Mr. Edwards, it is clear from the authorities that the court can grant permission on the condition that the Claimants disclose any previous reports that they obtained from Mr. Streeter. It does not necessarily matter whether the former expert was instructed to prepare a report before the issue of proceedings or after it: see Edwards-Tubb v J D Wetherspoon [2011] EWCA Civ 136.

The decision of the Court of Appeal in Edwards-Tubb suggests that the imposition of a condition of disclosure of any previous reports should be the usual practice where the change of expert comes after the parties have embarked on the pre-action protocol procedure and “… thus engaged with each other in the process of the claim”. That has clearly happened here: however, the difference is that Mr. Streeter’s report of April 2005 was disclosed before that process began.

Mr. Moxon-Browne submitted that the principle established by Edwards-Tubb may apply only to reports that were prepared for use in litigation. I do not accept this submission: it is directly contrary to what the Court of Appeal said in Vasiliou v Hajigeorgiou [2005] 1 WLR 2195, at paragraph 30.

What the Defendants are seeking, therefore, is disclosure of any communications from Mr. Streeter to the Claimants or BLM which record any expression of opinion in relation to the issues in these proceedings. The Defendants are particularly interested in what Mr. Streeter may have said to BLM following his receipt of the letter from the Bolsover District Council of 28 February 2006 and what he may have said following the experts’ meeting on 3 April 2012.

Ms. Sinclair’s application was for all such material from the date of the Bolsover letter up to the mediation on 23 May 2012. Miss Jefford goes further and asks for all such material from the Bolsover letter to date.

I am prepared to accept that the conditions that the court can impose on a party applying for permission to call an expert are not limited to an expert’s “final” report (meaning the report prepared for disclosure pursuant to CPR 35), but may extend to other reports containing the substance of the expert’s opinion: see Vasiliou, at paragraphs 29-31.

What I regard as more problematic is disclosure of documents such as solicitors’ attendance notes of telephone calls with the expert which record (or purport to record) the substance of his opinions. There are at least two difficulties in the way of disclosure of such documents, which are of course privileged. The first is that they will probably not record the expert’s actual words, but rather the substance of what the solicitor understood the expert to say. The two may not be the same. The second is that the notes may well contain material that is not expert opinion: in this case, for example, Mr. Streeter’s views on the other parties’ experts, the thinking of the Claimants about the future conduct of the litigation, what Mr. Streeter thinks of the Claimant’s own experts, and so on.

Whilst it may be said that the second difficulty can be overcome by appropriate redaction, as so often happens when confidential or even privileged documents have to be disclosed for one reason or another, this will not prevent the problem that always occurs with such disclosure; namely, that the disclosed passages very often have to be read in the context of the redacted passages in order for the meaning of the disclosed passages to be properly understood.

Another problem which arises out of the first difficulty is that BLM may wish to check with Mr. Streeter that what they have reported him as saying in a particular attendance note is correct. What is to be done if Mr. Streeter does not wish to co-operate or does not agree that the note correctly records what he told the solicitors? It may be that he would have to make a witness statement and, if necessary, give evidence. It is hard to see how the costs of this exercise would be proportionate, even in the context of a case as substantial as this one.

These considerations lead me to conclude that there would have to be a very strong case to justify a condition that such solicitors’ attendance notes should be disclosed in addition to any reports or draft reports by the expert.

In my view this is not a strong case of “expert shopping”, or anything near it. There is no evidence that indicates that Mr. Edwards was approached at any time before Mr. Streeter indicated that he wished to withdraw from the case. But the Defendants appear to be inviting the court to infer that this was probably the case.

If that is the Defendants’ position, then I am not prepared to draw such an inference. It is Ms. Whittingham’s evidence that at the time of the experts without prejudice meeting on 3 April 2012 it was BLM’s intention that Mr. Streeter “should in due course produce a CPR compliant experts report … should the mediation be unsuccessful”. The only inference to be drawn from this is that, up to the time of the mediation, no steps had been taken by BLM or the Claimants to instruct an alternative expert to provide a second opinion. I see no reason to question Ms. Whittingham’s evidence that instructions to consider the correctness of Mr. Streeter’s architectural advice were not given until early June 2012.

On one view, therefore, this is not a case of “expert shopping” at all. The first expert had, perhaps not unreasonably in the circumstances, indicated that he wished to withdraw from the case. Mr. Streeter had ceased full-time practice in 2008 and Mr. Jowett says that, by 2011, he was hoping that this litigation would be concluded by the end of that year and that, when agreeing to continue to act as the Claimants’ expert following his retirement from full-time practice, Mr. Streeter did not envisage that the case would continue for as long as it has.

Whilst this is second-hand evidence, it is in my view inherently plausible. I suspect that Mr. Streeter may have found the mediation (and the experts’ meeting that preceded it) to have been a fairly bruising experience and, when it failed to resolve the litigation, he then decided that he had had enough. Of course it would have been better if there had been before the court a witness statement from Mr. Streeter himself, but I am reluctant to assume that its absence is the result of a tactical decision by the Claimants rather than, say, unwillingness on the part of Mr. Streeter to assist further.

It seems to me that, at best from the Defendants’ point of view, this might just be said to be a case where there is an appearance of “expert shopping”. In my judgment any such appearance is faint. I consider that the Defendants have pitched their submissions too high.

In these circumstances this is not a case where I am prepared to order disclosure of all attendance notes by BLM in which Mr. Streeter’s opinions on any matter in issue have been recorded. To make such an order would result in a significant invasion of the Claimants’ privilege which is not justified in the light of the evidence about the circumstances and timing of Mr. Streeter’s withdrawal from the case. It would add considerably to the costs of this already expensive litigation with no certainty that it would provide the Defendants with any material that might significantly assist their case. I appreciate that the policy of imposing a condition requiring disclosure of a previous expert’s reports is to deter the practice of “expert shopping”, but it seems to me that there has to have been “expert shopping” or at least a very strong appearance of it, before disclosure of the type sought on this application should be ordered. I therefore decline to make an order of the type that the Defendants seek.

However, I will order the Claimants to disclose any other report or document provided to BLM by Mr. Streeter in which he expressed opinions or indicated the substance of such opinions on the matters in issue in these proceedings. I understand that there may be no such report or documents, but I do not see why the Defendants should not have the comfort of such an order in case any such documents should hereafter come to light.

Both Ms. Sinclair and Miss Jefford submitted that the expertise of Mr. Edwards is not in the relevant field because he is not just an architect but also an expert in fire safety. Mr. Edwards says (at paragraph 2.3 of his report) that he is “an architect, not a qualified professional fire engineer”. However, he states also that he is a member of the Institution of Fire Engineers and has “special knowledge of fire safety matters in the context of the Building Regulations and other published construction standards and guidance”. He has not been instructed to give evidence about the spread of the fire: that is addressed by another expert.

The issues raised in these proceedings call for an expert who is not only an architect, but also one who has knowledge or experience of the requirements for fire protection in buildings such as this shopping centre. To take an extreme example, an architect who had designed little else but domestic conversions or loft extensions would hardly be an appropriate expert for a case such as this. Similarly, it would be of little assistance to the court to have an architect who was familiar with the design of internal layouts of shopping centres but had little or no experience of designing a roof (if such an architect exists).

Miss Jefford submitted that the architects are not and have never held themselves out as being experts in fire safety. Nevertheless, it seems to me that if they accept a commission to design a building such as this, they must be taken to have held themselves out as competent to do so. Such competence would include a knowledge and understanding of the regulations and guidance relating to fire precautions in commercial buildings like this one.

Ms. Sinclair made similar submissions. She referred me to Sansom v Metcalfe Hambleton [1998] PNLR 542, in which the Court of Appeal held that the evidence of a structural engineer was not admissible evidence to establish the professional negligence of a chartered surveyor. She submitted that, as against Galliford, the real issue was whether on completion of Phase II the building complied with the Building Regulations and that that was a matter of fact on which there is little room for opinion evidence. In addition, she submitted that although the design and build contractor might employ an architect to discharge its design obligations, Mr. Edwards is not such an architect.

In my judgment, the evidence of Mr. Edwards is admissible in relation to the claim against the architects because he is an architect. I do not see how his specialist knowledge of fire precautions can make his evidence as an architect inadmissible. I can see that it may be open to the architects to submit at a trial that his evidence should be given less or little weight because his ability to give evidence as to what a reasonable architect would or should do has been coloured or distorted by his specialist knowledge of fire precautions. But that is a matter that goes only to weight, not to admissibility.

I accept that the evidence of an expert architect may not be admissible on all the issues relating to Galliford, but where a contractor has assumed design obligations I see no reason why the evidence of an expert architect should not be relevant to some aspects of those obligations. A contractor who is “experienced in designing and carrying out work of a similar complexity, scope, nature and size to the Works”, which was the standard that Galliford’s contract required, is effectively assuming the role of an architect of similar experience and, in practice, such contractors almost invariably employ or engage architects to do the necessary design work. Ms. Sinclair accepted that a suitably qualified or experienced contractor might be able to give relevant evidence on this question, but I have difficulty in seeing how such a person, if not also an architect, could express an admissible opinion on the discharge of their professional duties by architects employed or engaged by Galliford.

I am, therefore, not persuaded that the evidence of Mr. Edwards will not be admissible at the trial, even though the extent to which he can give evidence in support of the claim against Galliford may be more limited than the extent to which he can give evidence in support of the claim against the architects.

However, as will appear from the next part of this judgment, I accept the submission that evidence of the requirements published or recommended by property insurers should not be admitted. I will refuse permission for the proposed amendments in so far as they are directed to that point.

There is no doubt that these proceedings have not been pursued with the vigour that they should have been and those on the Claimants’ side have no-one but themselves to blame if they now face limitation difficulties. If this application to amend was made close to trial, there would be a strong case for refusing it on that ground. However, and regrettably, the case has not yet been set down for its first case management conference, so any trial is still some way away. Nevertheless, with this litigation history the Claimants do not come to the court seeking indulgence from a good position. In such circumstances this application must in my view be approached with critical scrutiny.

Mr. Jonathan Carrington, a solicitor employed by RPC, exhibited to his witness statement a very helpful colour coded version of the proposed Amended Particulars of Claim, which had the amendments to which the Defendants were objecting separated into three categories: the red amendments, the green amendments and the blue amendments. The amendments in all three colours were opposed. However, in the course of argument certain concessions or clarifications were realistically made or given by Mr. Moxon-Browne, with the result that, with some alterations, the green and blue amendments ceased to be the subject of further serious opposition subject to the provision of a revised draft to the Defendants and, of course, the Defendants sought the usual order as to costs. In addition, the revised draft was to plead the allegations of breach of duty separately against each Defendant. I will therefore not extend this judgment by giving the reasons why they should be allowed: they were fully canvassed during argument. I will only say that Mr. Moxon-Browne made it clear that no allegations were being made in respect of the performance of the work for Phase I, so the amendments are allowed on that basis.

Accordingly, the remainder of this part of the judgment deals only with the red amendments.

These can, I think, be separated into three distinct groups of allegations. The first is the allegation that “best up-to-date practice” in 2000/2001 was reflected by the advice given in Approved Document B, 1982 and 2000 editions. The second is an enlargement of the first by the addition of reliance upon reports of various large fires in supermarkets and a poultry factory between 1993 and 1996, three of which were reported in one or more of “Building Magazine”, “Construction News” and “The Independent” and therefore should have been, it is said, well known to those concerned in the design and construction of such buildings. In each case the fire is said to have spread through the roof spaces or eaves canopies. The third is that in the late 1990s there was pressure from the insurance industry to emphasise the importance of taking precautions to prevent damage to property by fire (it being accepted that the Building Regulations were directed to the safety of people). In this context various insurance industry publications are relied on.

Since the fire occurred in October 2004, the limitation periods in both contract and tort have now expired. Although the contract for the Phase II works was made under seal, it is not disputed that it was made and that the work was carried out more than 12 years ago. In these circumstances if the amendments raise a new claim, they can only be allowed if that new claim “arises out of the same facts or substantially the same facts” as a claim for which the Claimants have already claimed a remedy.

Ms. Sinclair argued that to allow the amendments would be to widen hugely the scope of the factual investigation that would have to be undertaken by the experts, a problem made more difficult by the fact that they would have to consider the practice that was current some 13 years ago. These submissions were supported by Miss Jefford, although these amendments did not really affect her clients since Mr. Moxon-Browne accepted, very properly, that his clients could not advance a case against the architects that they were under a duty to achieve, or I think even to take reasonable care to achieve, a design that complied with the best up-to-date practice. However, he reserved the right to argue that what amounted to the exercise of reasonable care and skill in discharge of the duty owed by the architects to the Claimants would be informed by the scope of their obligations to Galliford.

Mr. Moxon-Browne submitted that if the allegation of a breach of the duty of best up-to-date practice represented a new claim, which he was disposed to concede it might, it was a claim that arose out of the same facts as those already pleaded. He submitted that although the pleaded duty to use best up-to-date practice had not been relied upon, the acts constituting the breach of the duty and the causation alleged were exactly the same. Accordingly, the “new claim” arose out of the same facts.

Ms. Sinclair submitted in effect that such an approach was too narrow. As I have indicated above, she submitted that the proposed amendments in this group would involve a wholly new area of factual enquiry into changes in the practice and approach of the property insurance industry in the 1990s and the extent to which such changes did or should have affected current practice by architects and contractors in 2000/2001. In the circumstances she submitted that the allegations did not fall within the ambit of amendments allowed by the Limitation Acts, or that they should be refused as a matter of discretion because it would not be just or proportionate to allow such new areas of investigation to be introduced in circumstances where the scope of the enquiry had been clearly defined by the pleadings and the exchanges between the parties over the course of the last 5-6 years. This, she said, is a stale claim that has not been pursued with proper vigour and, adopting an approach that accorded with the Jackson reforms, the court should disallow them as being too late and involving a disproportionate allocation of time and resources to deal with them.

I shall take these groups of allegations in reverse order. So far as the third group of allegations is concerned, I accept the submissions of Ms. Sinclair. It seems to me that whether one approaches the question by asking whether the new allegations arise out of the same facts or whether they should be disallowed as a matter of discretion, the answer is the same. It is too late, and would be disproportionate and unjust, to permit the ambit of the trial to be extended significantly at this stage of the proceedings. I am satisfied that to explore the relevance of insurance industry publications, such as those issued by the Loss Prevention Council in the 1990s, to the practice of architects in 2000/2001 would involve the introduction of a substantial amount of new material and a consequent and disproportionate increase in the time, money and resources that would be required to deal with it. Whilst this is not an application for relief from sanctions, I accept Ms. Sinclair’s submission that the court should be less inclined to indulgence towards a claimant who has allowed its claim to proceed as slowly as this one has.

I therefore refuse to allow that part of the proposed amendment to paragraph 15A(vi) after the first two sentences (thereby permitting the amendment up to the words “since at least 1992”). I understand that the word “best” was inadvertently omitted from the penultimate line of the second sentence. I will deal with the first two sentences of that paragraph later in this judgment.

I turn now to the second group of allegations: the reliance on the fires in the 1990s. The submissions by Ms. Sinclair that I have already summarised covered these allegations also, so I will not repeat them. Miss Jefford submitted that this would involve an analysis of each fire: precisely how it started and spread and the nature of the construction of the building in each case. Mr. Moxon-Browne’s submissions in relation to this category were embraced in his submissions that I have already summarised.

I consider that Miss Jefford’s submissions are not well founded. The amendments proposed are in very general terms: the Claimants rely on the fact that fires in similar types of building occurred with devastating results in the few years preceding this project and that this would (or should) have raised awareness within the profession of the need for effective fire protection in the roof or eaves spaces of such buildings. In relation to the fires in the three supermarkets, there were reports in identified journals or newspapers as set out in the draft Amended Particulars of Claim. Those advising the Defendants will have no need to carry out a vast literature search.

However, I consider that the position is different in relation to the fire in the poultry factory. In relation to this the Claimants simply assert that there was “ensuing widespread comment in specialist technical and other media”. When permission is sought for amendments that come late on in the proceedings the court is entitled to expect proper particularity: an amendment that immediately cries out for a request for further information will seldom be good enough (see Swain-Mason v Mills & Reeve [2011] 1 WLR 2735, at [73]). At this stage the court can have had no means of knowing to what extent the Claimants would be able, if the amendment were to be allowed, to give sufficiently precise further information to enable the Defendants to locate the comments in the media without undue expense or difficulty. In these circumstances I am not prepared to give permission for this particular proposed amendment (that is, paragraph 15B, the last three sentences).

I now turn to the first group of allegations: that the guidance in Approved Document B, both the 1992 and 2000 editions, represented best up-to-date practice. This allegation has been deployed in response to the Defendants’ averment that the advice in Approved Document B is not mandatory and that compliance with the Building Regulations may be achieved by other means.

The Claimants’ proposed amendment, it seems to me, really raises a point of construction: does the guidance given in Approved Document B represent up to date best practice as that term is used in the contract? Section 7 of the Building Act 1984 provides that non-compliance with an approved document does not of itself render a person liable to civil or criminal proceedings, but that it may be relied on as establishing such liability.

It seems to me to be at least arguable that, as a matter of construction of the contract, a contractor who is obliged to design a building in accordance with best up-to-date practice must comply with approved documents. This is an argument that arises out of the facts already pleaded: namely, the terms of the contract (including the obligation to exercise best up-to-date practice), the existence of Approved Document B, 1992 and 2000 editions, the breaches set out in paragraph 26, the fire and the increased damage that is alleged to have resulted as a result of the absence of proper fire protection.

Ms. Sinclair submits that this is a new claim because, whilst the acts constituting the breach remain unchanged, a new duty is relied on (although one that was mentioned in the original Particulars of Claim). Mr. Moxon-Browne was inclined to accept this. For my part, I consider that it might perhaps be described as a new way of putting an existing case so that consequently it is not a new claim.

However I do not have to decide the point because I consider that it is plain that this allegation, if it is a new claim, is one that “arises out of the same facts or substantially the same facts” as a claim for which the Claimants have already claimed a remedy.

The Claimants’ original claim asserted that the Defendants were in breach of the Building Regulations and the guidance provided by Approved Document B, 2002 edition, alternatively the 1992 edition. It was not alleged that, having failed to follow the guidance in Approved Document B, the Defendants adopted some alternative that did not meet the requirements of the Building Regulations: what was alleged was non-compliance with the approved document and that such non-compliance, without more, amounted to a breach of contract.

Accordingly, for the Claimants to assert that Galliford is still so liable, not because compliance with an approved document was mandatory in itself, but because the contract made such compliance mandatory since that was a requirement of the exercise of best up-to-date practice, is a claim based on the same or substantially the same facts as those of the claim originally made. What is new is that the argument is put on a different legal basis. But it arises out of the same facts.

I have already given permission to the Claimants to call Mr. Edwards, although that permission does not extend to the matters raised in those parts of the proposed amendments that I have not allowed.

The green and blue amendments (save to the extent that certain parts of those amendments were the subject of revision during argument) will be allowed, and, in the case of the blue amendments, on the usual terms as to costs (as agreed during the hearing). The red amendments will be allowed, save as specifically provided in the previous part of this judgment. For the avoidance of doubt, the costs of the blue amendments will include the costs of the application insofar as it related to the amendments and any costs already incurred that will be thrown away as a consequence of the amendments. The costs of the green and red amendments are to be determined following further submissions.

I will hear counsel on any other matter arising out of this judgment that cannot be agreed, including if necessary the costs of that part of the application that relates to Mr. Edwards. My provisional view is that those costs should probably be costs in the case (the normal order that would be made on a case management conference), but I will entertain any submissions (whether orally or in writing, if the parties all agree to the latter course) to the effect that there should be some other order.