Persimmon Homes Limited v Amec Foster Wheeler Group Limited & Ors

This claim concerns fire safety defects at a residential development at Orwell Quay, Neptune Marina in Ipswich that was developed by Persimmon Homes Ltd some twenty years ago. The works were undertaken by the First Defendant, AMEC Foster Wheeler Group Ltd, who was employed by Persimmon under a design and build contract. Practical Completion was achieved in 2006.

Following the Grenfell Fire tragedy, the management company at Orwell Quay investigated potential fire-safety issues. Defects were discovered in the external walls and in the internal compartmentation which were alleged to give rise to a risk to life and safety. As a result, remedial works were carried out pursuant to a settlement agreement under which Persimmon alleges that it has incurred costs totalling £17,716,106.74.

By this action, Persimmon claims those sums from its design and build contractor pursuant to section 1 of the Defective Premises Act 1972. Further, Persimmon seeks building liability orders pursuant to section 130 of the Building Safey Act 2022 against the Second and Third Defendants, Amec Foster Wheeler Ltd and John Wood Group plc, in the event that the First Defendant is not good for the money.

Matthew Thorne, who appears for the Defendants at this case management hearing, argues that the case is inadequately particularised in respect of defects and the remedial costs arising from each alleged defect, such that the court should order a full Scott schedule requiring the Claimant to identify each defect, the location of each defect, whether it is on the external wall system, what remedial works were undertaken, and the cost of such works in respect of each defect.

The case is pleaded separately and differently in respect of the external and the internal defects. By its Particulars of Claim, Persimmon identifies various different types of external wall construction. At paragraph 58, Persimmon then pleads the external wall defects separately in relation to each different wall type and explains how the contractor was in breach of the applicable Building Regulations and the guidance set out in Approved Document B (“ADB”). By way of example, at paragraph 58.1 it is pleaded that the timber battens to the sides of the windows at three of the addresses - 1, 3 and 5 Anchor Street - are defective, and the following details are given:

“The timber battens were not a material of limited combustibility. This was contrary to the guidance in paragraph 13.7 of ADB requiring materials to be of limited combustibility. In accordance with section 7(1) of the Building Act, and in any event, this constitutes a breach of the functional requirement B4(1) of the Building Regulations.”

Paragraph 58.3 pleaded that the vertical cavity barriers at compartment walls and vertical structural elements were absent or inadequately installed. At paragraph 58.4, the horizontal cavity barriers were said to have been incorrectly installed and not properly fitted or fixed in place at the compartment floor-slab level. Paragraph 58.6 pleaded that the cavity barriers at openings were missing from four of the addresses. Similar particulars followed in respect of the other wall types from paragraph 58.7 onwards.

A different approach was taken in respect of the internal fire protection defects. At paragraph 59 of the Particulars of Claim, it was pleaded that there were various internal fire protection defects present at the time of completion. Such defects were said to be systematic and widespread across Orwell Quay in communal areas and in individual apartments. The following details were then given:

“The Internal Fire Protection defects which are the subject of this claim include AOV defects and dry riser defects.”

When Mr Thorne first took me to that paragraph it appeared that there was no detail as to what those alleged defects were. But in fact, upon a fuller consideration of the Particulars of Claim, it was pleaded at paragraph 52.7 that the AOVs and the dry risers were discovered to have an absence of suitable fire protection.

Returning though to paragraph 59 of the Particulars of Claim, the pleader then categorised the remaining internal fire protection defects across five sub-paragraphs:

“59.1

An absence of appropriate fire protection around socket boxes;

59.2

An absence of appropriate fire protection to service penetrations (for cables) passing through compartment walls;

59.3

An absence of appropriate fire protection to soil vent pipe penetrations through compartment floors;

59.4

Untaped and unsealed joints to plasterboard linings to compartment walls; and

59.5

Poor construction to deflection heads to
compartment walls.”

At paragraph 60, it was pleaded:

“Enclosed with these Particulars of Claim at Appendix 1 is a schedule which identifies examples of each of these categories of defect, and the failings to adhere to ADB in respect of each. The schedule is not a comprehensive list of each such defect at every location (which will be a matter for evidence in due course) but demonstrates the widespread systematic nature of the aforesaid categories of Internal Fire Protection Defects.”

Appendix 1 started by stating that “the defects represented within this schedule represent a sample drawn from the various reports recording internal fire safety defects”. There then followed a series of what are described as photo examples of defects in relation to each of the different units within the development. Between the text of the appendix and the covering pleading, it is clear that that was by way of example only.

Mr Thorne complains that the Claimant has simply not provided the required detail as to precisely where the external wall defects were. To take the first example of the timber battens, he argues that the pleading does not tell the Defendants which windows were affected within blocks 1, 3 and 5. In respect of the vertical cavity barriers pleaded at paragraphs 58.3, he submits that they are not told which compartment walls or which vertical barriers were affected or how many were missing or inadequate. He says that such level of information is relevant to a proper assessment of the fire risk. As for paragraph 58.4, he argues that the Defendants are not told the detail as to where within the four blocks those defects arose. At paragraph 58.6, he submits that it is not clear which openings were being referred to. Mr Thorne argues that without that level of detail it is simply impossible, or at least difficult, for his clients properly to understand the pleaded case and then for experts to grapple with it.

As to the internal wall defects, Mr Thorne argues that the position is worse. He points to the lack of detail of detects in respect of the AOVs and dry risers. He complains that paragraph 60 and Appendix 1 effectively plead the case by way of example. That, he argues, is not a permissible pleading style. He makes the point that this case is not pleaded on the basis of sampling and extrapolation, and that therefore proper detail is required.

As to the pleading of the remedial works at paragraph 82, he says that there is nothing there that allows one to identify precisely which works were carried out in respect of which categories of defects or in respect of which locations. He complains that there is not even a high-level summary in respect of the remedial works to the internal wall defects.

Mr Thorne argues that this - to quote the terms used in the authorities - sets a wholly inadequate agenda for litigation and that the problem with the Claimant’s approach is that effectively it is requiring the experts in due course to work out the true extent and locations of the defects. It is expecting, he submits, the experts to plug the gaps that should be pleaded.

In answer to the suggestion that Amey should know the case it has to meet from the disclosure of the investigative work done pre action, he points out that disclosure and pleadings serve different purposes. It is not for the Defendants to trawl through the documentation provided by way of initial and pre-action disclosure in order to work out the true pleaded case. He says that this lack of detail has been remarked upon right from the letter of response dated 18 February 2025 to the letter of claim.

Alexandra Bodnar, who appears for Persimmon, says that Mr Thorne’s submissions betray a lack of realism as to what really is proportionate and required in order fairly to conduct this litigation at proportionate cost. She argues that there has been no previous serious complaint about the way in which the case is pleaded, apart from a couple of observations in the Defence. There has been no request for further information, no application to strike out, and no application for summary judgment. But rather, at what she describes as the eleventh hour on 15 June 2026 and in the immediate run-up to this case management hearing, it was suggested for the first time that a Scott schedule should be provided.

Ms Bodnar complains that in effect what the Defendants seek is what has been previously described by Dyson J in Macob Civil Engineering Ltd v. Morrison Construction Ltd [1999] CLC 739 as the “grinding detail” for which some observers would say this court has been notorious. She says that that is not a proportionate and sensible approach. If it ever was the right approach in this court, it no longer is in 2026.

So far as the external works are concerned, Ms Bodnar argues that it is not possible or proportionate to identify every single missing cavity barrier. She makes the practical observation that the reality of remedial works is that once defects are found in the cavity barriers, they are replaced without first investigating each and every barrier.

Ms Bodnar defends the way in which this case is pleaded. She contends that paragraph 58 helpfully breaks down the external defects into different wall types. It identifies, albeit briefly, the nature of each type of defect, which blocks it affects, and the regulations or guidance alleged to have been breached.

So far as the internal wall defects are concerned, she makes the point that paragraph 52.7 does give the further information as to what the AOV and dry riser defects are said to be. She argues that many of the internal defects are systematic and widespread and that they have been adequately identified by the pleading at paragraph 59. She insists that Appendix 1 was never meant to be comprehensive but, if it would be helpful, further examples could perhaps be given.

Ms Bodnar invites the parties to work together and submits that “if they tell us what is wanted”, the Claimant’s legal team can see what further information might be capable of being provided in order to answer the Defendants’ concerns. She suggests that this is really a tactical objection and that Amec is seeking to have the opportunity through the response column to the Scott schedule to put for the first time a positive case which, if it has, should simply be pleaded by way of amendment.

In his brief reply, Mr Thorne rejects that analysis and refers me to Standard Life Assurance Ltd v. Building Design Partnership Ltd [2021] EWCA Civ 1793, [2022] 1 W.L.R. 878.

In my judgment, Mr Thorne is right to argue that pleadings must not be vague and that sufficient detail must be pleaded so that Amec can understand the case that is being brought and so that it can plead in response, disclose relevant documents, and properly prepare witness statements and for trial. Indeed, in Standard Life, Coulson LJ repeated his earlier observations in Pantelli Associates Limited v Corporate City Developments No 2 Limited [2011] PNLR 12, at paragraph 11:

“CPR 16.4(1)(a) requires that a particulars of claim must include ‘a concise statement of the facts on which the claimant relies’. Thus, where the particulars of claim contain an allegation of breach of contract and/or negligence, it must be pleaded in such a way as to allow the defendant to know the case that it has to meet. The pleading needs to set out clearly what it is that the defendant failed to do that it should have done, and/or what the defendant did that it should not have done, what would have happened but for those acts or omissions, and the loss that eventuated. Those are ‘the facts’ relied on in support of the allegation, and are required in order that proper witness statements (and if necessary an expert’s report) can be obtained by both sides which address the specific allegations made.”

In Standard Life, Coulson LJ added that “[those] are the basic ingredients of any statement of case against any defendant”. He added, at paragraph 41:

“The other side of the same coin is that pleadings should not be vague and unparticularised, and if they are, they are liable to be struck out: see the judgment of Teare J in Towler v Wills [2010] EWHC 1209 (Comm).”

Coulson LJ returned to the theme of the level of detail that is required towards the end of his judgment at paragraphs 91 and 92. At paragraph 91, he criticised counsel’s submission which he said “appeared to assume that a construction case in which every last detail was pleaded out extensively on all sides was the optimal mode of presentation, and that anything less was somehow an inferior short-cut, risking potential injustice for all defendants”.

He continued, at paragraph 92:

“I profoundly disagree with that assumption. The days of the court requiring parties in detailed commercial and construction cases to plead out everything to the nth degree are over. It is not sensible; it is not cost-effective; it is not proportionate. The parties, with the assistance of the court if they cannot agree, are duty bound to find a way of trying out the principal issues between them in a sensible and proportionate way. Of course, in certain types of construction dispute, it will be necessary to investigate what Dyson J once called ‘the grinding detail’ of such claims …, but that investigation should only ever be commensurate with the overriding objective. Pleading out every last detail at the outset of the proceedings should not be regarded as the paradigm method of framing such disputes, particularly if there are more proportionate alternatives which still enable the defendant to know the case that it has to meet.”

In this case, I take into account the fact that this is a high-value claim and Amec is certainly entitled to proper particulars of the claim that is brought against it. That said, any approach that requires “the grinding detail”, where every issue has to be pleaded to, as Coulson LJ put it “the nth degree”, is neither sensible, nor cost effective, nor proportionate. The real issue, in my judgment, is finding the balance that enables the Defendants properly to understand the case that they have to meet without requiring the Claimant to plead, as Ms Bodnar put it, “200 pages of detail” in order to make its case.

I agree with Mr Thorne that it is not the function of experts to plug the gaps and to work out what the true extent of the case is. Rather their role is to opine upon the pleaded issues. He is also right to submit that it is not for the Defendants to trawl through disclosure and pre-action disclosure in order to try to work out the true extent of the case that is brought against them.

What then is the right solution? Well, the particulars in this case at paragraph 58 in respect of the external walls are on the thin side but do, it seems to me, set out properly the ingredients of the case that the Defendants have to meet. I reject the suggestion that the Claimant was required to identify, for example in respect of the timber battens, each and every window that was affected by the issue and consider that the level of detail given was sufficient.

As to the internal walls, the pleading is even thinner than in respect of the external walls, but, nevertheless, the defects are very succinctly set out.

I consider that there is probably a need for greater particularisation in respect of the internal wall defects, but that the right and proportionate approach is not to order the Claimant to provide a full all-singing, all-dancing Scott schedule in order that it should set out in grinding detail each and every internal defect and the location of such defect. Rather the remedy, if the Defendants consider that they need further information, is to exercise their right to raise a targeted request using the Part 18 procedure. For my part, if any request is properly targeted and proportionate, it seems to me that the Claimant should be required to answer it and that, should it refuse to do so without good reason, the likelihood is that the court would direct the Claimant to provide particulars. Of course, I do not seek to bind the hands of any judge hearing an application for particulars under Part 18. In any event, much will depend upon the precise way in which it is put and the judge hearing any such application will have to decide that matter for him or herself. Nevertheless, I hope that my own views are helpful in at least encouraging the Claimant to engage constructively with any well-targeted and proportionate request.

I will not, however, order the provisions of a Scott schedule.