Legal Watch:Property Risks & CoverageJune 2014
In This Issue:
Welcome new colleagues
Re-amendment of claim not permitted
A brief post Mitchell update
Relief from sanctions late service of witness
Consequential losses can be recovered under the
Riot (Damages) Act 1886
Landowners duty where her tree fell onto railway
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IntroductionThanks this month go to Nathan Rehbock for his article on Co-
operative Group Ltd v Birse Developments Ltd & Ors.
The post Mitchell debate continues and once again, we could
fill an entire issue with cases on relief from sanctions. Instead
we have provided a brief post Mitchell update and featured
one particularly interesting case, Gordon v Fraser (No.1),
where relief was granted in respect of witness evidence on the
first morning of the trial.
We also look at the landmark Court of Appeal decision on
consequential losses under the Riot (Damages) Act 1886 (see
Mitsui Sumitomo Insurance Co (Europe) Ltd & 5 Ors v Mayors
Office for Policing & Crime below) and the case of Stagecoach
South Western Trains Ltd v Kathleen Hind & Andrew Steel
which looks at the duty owed by a neighbouring landowner in
respect of a tree that fell onto a railway line.
Welcome new colleagues
Dan comes to Greenwoods Property Risks & Coverage
Group with substantial experience of subrogated recoveries,
having acted for some of the countrys biggest household
insurers across all perils but with particular experience of
complex litigation claims involving fire and subsidence.
He has dealt with parties ranging from sole traders to
international companies and councils throughout the
Lori began her legal career in 2005 as a paralegal in a national
insurance litigation firm, where she went on to undertake
her professional training. She qualified as a solicitor in 2012.
Lori has experience in defending property damage claims,
advising on coverage issues and pursuing subrogated
recoveries on behalf of insurers. She has a particular interest
in disputes arising in the construction industry.
Re-amendment of claim not permittedIn the case of Co-Operative Group Ltd V (1) Birse
Devlopments Ltd (In Liquidation) (2) Stuarts Industrial
Flooring Ltd (In Administration) (3) Jubb & Partners (A Firm)
 EWCA Civ 707 the appellant company (A) appealed
against a refusal to permit re-amendment of its claim against
the respondent company (R) for damages for breach of
contract concerning allegedly defective concrete floors in
its warehousing facility.
...it was not fair, reasonable or accurate to characterise the new case as arising out of substantially the same facts as already had been pleaded.The Court of Appeal held that the circuit judge had been
correct to refuse the re-amendment of the claim where it
was not fair, reasonable or accurate to characterise the
new case as arising out of substantially the same facts as
already had been pleaded.
FactsA contracted with R to design and build two large
warehouses and an office block at As distribution centre.
Two years after completion A issued a claim for breach of
contract, asserting that the internal concrete floors were
defective and that the floors did not meet the required
standards set out in the contract because they were below
the required thickness and were suffering from heave. The
cost of repairing the defects was estimated to be 381,000.
A later discovered that the steel fibre content of the concrete
floors was substantially less than required and the floors
were in danger of collapse. As a result, A replaced the floors
at a cost of 2.5 million. As earlier application to amend its
claim to include an allegation of reduced steel fibre content
was refused because it introduced a new cause of action.
The proposed new breach of contract claim contained a
summary of the basis for [As] complaint that the slab was
insufficiently thick in places. The only complaint of that
nature was that the slab was below the design thickness of
150mm, being only 112mm thick in places. It was common
ground that the specification contained neither an explicit
requirement that the concrete slab be of 150mm thickness,
whether with or without tolerance, nor any reference to
design thickness as such. However, a clause in the contract
called for the ground floor concrete slab to reliably deliver
a pallet racking leg load of 70kN/leg and that would only
be met on the basis that the floor met the design intent of
150mm thickness (less tolerance). The crux of the complaint
was thus that the thickness of the floors was insufficient to
meet the loading requirements specified in the clause.
The trial judge did not consider that the proposed re-
amended particulars of claim sought to add a new cause
of action but he declined to permit the amendment on
discretionary case management grounds.
The appealR contended that:
1. The trial judges exercise of his discretion should be
upheld but in any event the proposed re-amendment
was impermissible because it sought to rely on a new
cause of action not arising out of substantially the same
facts as were already in issue for the purposes of the
Limitation Act 1980 s.35 and CPR r.17.4(2); and
2. The new claim which A sought to rely on was
substantially the same as that the Court of Appeal had
already held to be a new claim falling outside the
category of those which could be added after expiry of
the limitation period.
The Court of Appeal held that all that was in substance new
or different about the second proposed re-amendment was
the assertion, contrary to the case previously advanced and
contrary to the concern expressed in the contemporaneous
documents, that in fact the lack of fibre was not and would
never have been a separate, free-standing feature which
would, of itself, have compromised the ability of the slab to
withstand the racking leg load requirement. Thus the new
proposed pleading was, in substance, the case previously
proposed to be advanced, merely shorn of any complaint
regarding fibre content. The factual substratum of the original
allegations was cracking of the concrete slabs, damaged
edges and localised areas of insufficient thickness, which
were said to require patchwork repair at costs of about
380,000. The new claim was of a systemic defect affecting
the entirety of the floor slabs, which required the replacement
of the whole floor and it was not fair, reasonable, or accurate
to characterise that new case as arising out of substantially
the same facts as were already in issue.
The Court of Appeal held that in the circumstances, it
was unnecessary to express any view upon the manner in
which the trial judge had exercised his discretion to refuse
permission to amend.
CommentWhat this judgment demonstrates is that the courts will
allow quantitative but not qualitative amendments. Whilst
As counsel submitted that the essential character of As
complaint was unchanged and it was simply that the number
of areas thought to be thin had been found to be greater
than first thought, the court held that the amendments were
qualitative, not quantitative, or at the very least, a difference
in degree which amounted to a difference in kind.
A brief post Mitchell updateThe Court of Appeal, including Master of the Rolls, Lord
Dyson and Lord Justice Jackson last week heard three
conjoined cases concerning relief from sanctions. They
will attempt to use the cases to clarify the position on the
enforcement of the new compliance rules and provide
definitive guidance on when to grant relief from sanctions
following Mitchell v News Group Newspapers Ltd 
EWCA Civ 1537.
The three cases are:
Decadent Vapours Ltd v Bevan & Ors an application
for relief where a case was struck out for the late
payment of court fees
Denton & Ors v TH White an appeal against relief
from sanctions being granted for a party that served six
witness statements late, requiring the adjournment of a
Utilities TDS Ltd v Davies where the court will decide
whether two trivial breaches aggregate so as to become
one significant breach
Such is the concern about the decisions and their knock on
effect that the Law Society and Bar Council have intervened
in the cases, on the basis that the respective professions
have an interest in the case. They are calling for a clarification
of the Mitchell criteria to avoid further satellite litigation and
to enable parties to actively work together to bring a case to
trial, rather than focus on catching each other out.
We will report further