Originating summons — Proceedings continued as if begun by writ — Statement of claim — Contract denied and claim based on quantum meruit — Preliminary determination of issues of liability — Contract entered into but not contract as alleged by defendants — Whether plaintiff can amend statement of claim after determination of preliminary issue — Leave to amend granted
The plaintiff commenced proceedings by an originating summons seeking declarations as to the contractual and other relations between the parties concerning the redevelopment of the former Whiteley’s Store, Bayswater, London. Directions were given that the proceedings should proceed as if they had begun by writ and the plaintiff served a statement of claim denying any contract and claiming £1,556,768 on a quantum meruit basis; the defendants pleaded a specific contract. On November 24 1990 His Honour Judge Newey QC determined a preliminary issue finding that there was a contract between the parties but not the one averred by the defendants; at the trial his invitation to amend the statement of claim was declined by the plaintiff. Subsequently the plaintiff applied for leave to amend the statement of claim to allege the contract as so found. The defendants opposed the application contending that judgment should be given to them and that the plaintiff should commence a separate action.
Held Leave to amend the statement of claim was given.
If the case had continued as an originating summons there would have been no need for an amendment. All aspects of relations between the parties were investigated at the trial; the determination of the nature of those relations was binding on the parties so as to give rise to res judicata. To refuse leave to amend would put the plaintiff to the trouble of commencing fresh proceedings; this would prejudice the plaintiff without benefiting the defendants. Notwithstanding that liability had been decided, no injustice would be caused to the defendants in granting leave to amend at this stage.
Michael Stimpson (instructed by the solicitor to Taylor Woodrow Construction Ltd) appeared for the plaintiff; and Nicholas Baatz (instructed by Beachcroft Stanleys) appeared for the defendants.
