Building contract – Compromise agreement – Breach – Claimant seeking damages for breach of compromise agreement – Defendant applying to amend pleadings to allege professional negligence and counterclaim at late stage — Whether part of defence and counterclaim alleging poor performance and resulting loss liable to be struck out — Application dismissed
The claimant quantity surveyors sought the payment from the defendant of £98,000 by way of unpaid fees for work carried out on two building projects. The claim was made pursuant to and/or as damages for breach of a compromise agreement dated 25 February 2009. After proceedings were issued in April 2010, the defendant served a defence and counterclaim that, for the first time, raised allegations of professional negligence and a counterclaim for £300,000.
The claimant raised a question as to the adequacy of the defendant’s pleading and, pursuant to an unless order made by consent in October 2010, the defendant agreed to provide proper particulars of the allegations of negligence, causation and loss, by way of an application to amend. If it did not do so, that part of the defence and counterclaim alleging poor performance and resulting loss would be struck out.
At the hearing of that application, the claimant opposed the proposed amendments on the basis that the defendant had not provided proper particulars and had therefore not complied with the unless order. The claimant alleged that the defendant had simply taken each relevant contract term and then added the words “failing to” as a prefix to each obligation.
Held: The application was dismissed.
CPR 16.4(1)(a) required that particulars of claim should include a concise statement of the facts on which the claimant relied. Thus, where the particulars of claim alleged breach of contract and/or negligence, it had to be pleaded in such a way as to allow the defendant to know the case that it had to meet. The pleading had to clearly state what the defendant had failed to do and should have done and/or what it did and should not have done, what would have happened but for those acts or omissions and the resulting loss. Those were the facts relied on in support of the allegation and they were necessary to enable parties to obtain witness statements (and if necessary an expert’s report) that addressed the allegations made.
In the instant case, the proposed amendments did not meet the test in CPR 16.4(1)(a). It was impossible to understand from the generic allegations what was alleged against the claimant. A solicitor would not be able to take a witness statement from those involved in providing the services in question so as to meet those points because no details had been provided that a prospective witness could accept or dispute. Accordingly, the proposed amended paragraph was not a proper pleading of a case of professional negligence; similarly, there had been no proper pleading of causation and loss. It was impossible to establish from the terse summary which facts the defendant relied on in support of its contention that a breach or breaches had given rise to loss. The damages claimed were unparticularised and the paragraph did not comply with CPR 16.4(1)(a).
It was no answer to the submission that the defendant had failed to provide proper particulars of the allegations of professional negligence to argue that the defendant would be prepared to provide such particulars under CPR 18 as were reasonably necessary and proportionate for the claimant to prepare its case or to understand the case that it had to meet. The defendant had been afforded that opportunity by the unless order and it had failed to take it. In the absence of an application for relief against forfeiture under CPR Part 3, the proposed amendments were inadequate and should be struck out in accordance with the terms of the unless order.
Furthermore, even though the work the subject of the purported allegations had been carried out three years previously, there was no expert evidence to suggest that it had been inadequate or was below the standard expected of an ordinarily competent quantity surveyor. Not only was the addition of the words “failing to” to the obligation insufficient to turn a positive contractual obligation into an allegation of professional negligence, it was also inappropriate to do so where there was no expert input to allow the defendant to make such an allegation.
Apart from in cases of solicitors’ negligence, an allegation of professional negligence had to be supported in writing by a relevant professional with the necessary expertise. In the instant case, although this claim had arise some years beforehand, the defendant had not availed itself of expert input to support its allegations of negligence. There was no explanation for that failure. It was wrong in law and practice to make such unsupported allegations. In the light of the terms of the agreed unless order, they must be struck out. Putting a professional to proof of the facts that underpinned his claim for professional fees did not permit an employer to raise unpleaded criticisms of the services provided by that professional in the hope of reducing the sums claimed.
Richard Coplin (instructed by CMS Cameron McKenna LLP) appeared for the claimant; Crispin Winser (instructed by GH Canfield LLP) appeared for the defendant.
Eileen O’Grady, barrister