Late amendments to pleadings- proceed with caution

elliot_kay_pi By Elliot Kay

Secker v Fairhill Property Services Limited and Others [2016]

The Claimant had purchased a new build property which had been constructed by the First Defendant company. Slightly over a year later the Claimant tripped over a paved step in her garden which rendered her tetraplegic. The other Defendants to the claim were the directors of the First Defendant and the contractor who had been engaged to lay the paving in the garden.

The claim was pleaded and advanced on the basis of breach of the contract of sale by reason of failing to comply with building regulations and failing to complete the works to a satisfactory standard. A week prior to the trial on liability the Claimant made a tri-faceted application, firstly, for permission to rely on additional witness statements, secondly, for an expert to give oral evidence and thirdly, to amend the Particulars of Claim to allege a breach of the common law duty of care.

The Defendants did not oppose the first two aspects of the Claimant’s application and they were allowed accordingly. The application to amend was vehemently opposed on the basis that the Defendants would be prejudiced by such a drastic amendment at such a late stage.

HHJ Cotter QC accepted the Defendants’ concerns and refused to grant permission to the Claimant. No real reason had been put forward by the Claimant for the late amendment and the Court concluded it simply represented a late change of mind. The fresh allegation was something very different to the Claimant’s pleaded case to date and if granted, would have required the trial date to be vacated. The application to amend was refused.

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