Co-Operative Group Ltd v Birse Developments Ltd & Ors [2013] EWHC 3100 (TCC)

Claim No. HT-13-204

[2013] EWHC 3100 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

TECHNOLOGY & CONSTRUCTION COURT

Venue The Rolls Building

Date Friday, 2 nd August 2013

Strand

London

Before

MR. JUSTICE AKENHEAD

Between

CO-OPERATIVE GROUP LIMITEDClaimant

-v-

Between

BIRSE DEVELOPMENTS LIMITED & OTHERSDefendant

Transcribed from the Official Recording by

AVR Transcription Ltd

Turton Suite, Paragon Business Park, Chorley New Road, Horwich, Bolton, BL6 6HG

Telephone: 01204 693645 - Fax 01204 693669

Counsel for Claimant: MR. HUGHES QC

Counsel for First Defendant:MISS SINCLAIR QC

Counsel for Second Defendant:MR. CANNON QC

Counsel for Third Defendant:MR. BLUNT QC

JUDGMENT

[1]MR. JUSTICE AKENHEAD: Following the judgment that I gave in this matter on 27 June 2013, the claimant has made extensive attempts to respond to requirements laid down in that judgment to spell out a number of matters. I am not going to repeat either my earlier judgment nor the substance of the judgment of his Honour Judge Stephen Davies on 25 October 2012, nor that f the Court of Appeal on 1 May 2013. I made it clear, and indeed all parties did accept, that if in principle the claimant is permitted to argue the new approach, it should be required to spell out in pleading form, supported by the key contemporaneous documents, how, why, when, in what terms, on what basis and by whom the decision was taken to replace the floor slabs. This new approach essentially arose as follows.

[2]As I made clear in my judgment, it was clear that the claimant had always pleaded a case about inadequate thickness. It sought permission from his Honour Judge Stephen Davies, and obtained permission, to re-amend its Particulars of Claim to add in what the Court of Appeal was later to say was a new claim in relation to the absence of an adequate quantity of steel fibre content in the floor slabs. The Court of Appeal, in its judgment, overturned his Honour Judge Stephen Davies’ decision, effectively reversing the permission to re-amend to add this claim. Essentially that claim was added a new complaint relating to the absence of adequate steel fibre, with the result that the floor slabs could not take the specified and indeed originally pleaded design racking leg load of 70 kilonewtons. That new cause of action was predicated upon the basis that the remedial works required to put right that problem involved the total replacement of the floor slabs as opposed to what I will call (and I suspect I will under-describe it) extensive patch repairs of the steel slab which had been embarked upon in 2011 and, so far as I can ascertain, up to the spring of 2012, which was apparently (and I make no findings about this) designed to overcome the allegedly inadequate thickness of the floor slabs.

[3]The new approach was one which the Co-operative proposed by way of its new and latest draft pleading, which was to run a case that, primarily by reason of the thickness problems, it decided to accept advice to the effect that replacement by reason of the thickness problems was an appropriate course of action. It is clear from documents that have been filed that a factor which it may have had regard to related to the need for the repaired or replaced floor slab to comply with a racking leg load of 70 kN (kilonewtons) so that it was more tenantable for a wider variety of tenants because: again, I am making no findings but, it appears that the Co-operative have plans to let out this building. I understand it was previously let out to Woolworths, now, sadly for many young children, no longer in existence. That appears to have been a concern, therefore.

[4]It is immediately apparent, of course, that the two positions – the re-amendment allowed by his Honour Judge Stephen Davies and rejected by the Court of Appeal on pleading grounds and the new approach – are, superficially at least, inconsistent. Therefore it is important to consider how the claimant wishes to put its case. In effect, what I did in my first judgment was to say that, in principle, it would be open, and indeed it could legitimately be open, to the claimant to argue this new approach. I gave an example in paragraph 11, which was the way that I had broadly understood it, which was that, if there were joint causes then, with one having the same potency as the other, it was at least arguable in law and on the facts that the requisite loss, if attributable to one factor which could be pleaded and was established as a matter of fact and law, could be recovered, even if there was another factor which impinged. However, because of the at least superficial inconsistency between the first re-amendment disallowed by the Court of Appeal and the new approach, everyone accepted that it was important that the claimant spelt out how, why, when, in what terms, on what basis and by whom the decision was taken. It is for that reason that I made it clear that that was expected to be provided.

[5]My judgment went on to deal with a somewhat belated point raised by the parties’ counsel after I had circulated a draft of the judgment. I dealt with this in paragraph 17 through to paragraph 20. That involved an argument which was to do with the extent to which there was and might be reliance on an allegation that the floor slabs were of insufficient strength to withstand a pallet racking leg load of 70 kilonewtons by reason of the existing remaining breaches. I received written arguments from counsel and I dealt with it in the judgment, primarily at paragraph 19. I preferred Mr Hughes QC’s arguments making it clear that the focus of His Honour Judge Stephen Davies and Lord Justice Tomlinson’s judgment was on the new steel fibre content complaint.

[6]Now, I made a caveat to deciding that, in principle, amendment could be allowed by saying that before permission to amend is granted, the claimant must spell out in draft pleading form the relevance, both to the description of the pleaded defects and to the breach relating to pleading of the 70 kN, or indeed other clause 2.08, requirements. I am very anxious to ensure that there is no doubt or lack of clarity as to what is being pleaded. For instance, Mr Hughes’ note has, at least to a significant extent, clarified why the 70 kN requirement may be relevant to the existing thickness complaint.

[7]The first thing that happened, I think, in time was that, under cover of a letter dated 16 July 2013 to the court, doubtless copied to the other parties, the Co-operative’s solicitors served a lever arch file – not a full lever arch file but a near full lever arch file – of documentation including 33 pages of prose headed, “The decision to replace the warehouse slabs.” There was attached a very substantial amount of documentation, although doubtless, on disclosure ultimately, there will be even more. The “decision” document goes in some detail through the history leading up to a decision possibly taken in May or June 2012 about what to do. For instance, it asserts in paragraph 3 that the Co-op reached, with some reluctance, having persisted with a repair scheme in the early months of 2012 on pragmatic basis, a decision that, if repairs could be made to work despite the clear doubts already expressed in that regard by Professor Rowberry in January 2012, then works would be quicker and cheaper and the property tenanted far quicker than if the whole of the floors were replaced; it then made it clear that the decision was clearly based and reasonably based upon the expert advice of Professor Rowberry – and there is a general summary of what Professor Rowberry’s advice was. Professor Rowberry is from the well known firm, the Halcrows, and is one of the experts in these proceedings.

[8]At paragraph 3(iii), it is pleaded that the decision was one which was “justified at the material time”, and justified by the Co-op in these proceedings by reference to the following deficiencies. Then (a) goes into the insufficient thickness of the slab, which, as I have already found, is sufficiently clearly pleaded. However, it is clear from this that there is no specific or clear reliance on the 70 kN requirements; rather there is a reliance on what the third party, Stuarts, actually specified. Apparently – it may be right or it may be wrong – it is asserted that Stuarts specified 150 millimetre thickness for these slabs. It is said that it is assumed that Stuarts’ designer believed that this thickness satisfied the various structural engineering requirements for the intended loads and use. There is then extensive reference to a document called TR34, which is referred to in the Employers’ Requirements and which refers to tolerances, which produces a tolerance of plus or minus 15 millimetres on the 150 millimetre thickness.

[9]Other deficiencies referred to in this paragraph 3(iii) are the existence of cracking within the warehouse floors and, at (c), the existence of a variety of different, very serious workmanship defects, mainly identified in the autumn of 2011. The court is referred to pictures showing the condition of the slab at attachment A4, together with the results of work carried out. Appendix A4 contains a number of photographs which, for instance, show inclusions, for instance of polythene, in the base of concrete cores obtained during the remedial work, which is said to be something which reduces the floor slabs’ effective thickness and the like.

[10]There is also in the photographs in the B series in appendix A4 a variety of other deficiencies relied upon, some of which may be inferentially already pleaded and some of which I suspect are not, such as problems to do with the polythene slip membrane folded in on itself within the concrete slab and other material left on the sub-base below the concrete, which may have had an effect, such as localised depressions and the like. Some of these may be pleaded elsewhere and some of them may not be. Certainly none of the photographs in A4 relate to levels as far as I can tell. It is rather difficult to take photographs of slabs being out of level unless it was extraordinarily out of level.

[11]The document goes on to deal with the history, who said what, for instance by Professor Rowberry. It appears to be asserted (and it may be right) that it was originally anticipated that the thickness problems were, whilst extensive, not nearly as extensive as they turned out to be. For instance, there is reference to Professor Rowberry advising on 27t October that generally the concrete is in a worse state workmanship wise than he had expected. At that stage, no one was considering the fibre content, although Professor Rowberry reported, rightly or wrongly, that the fibre distribution appeared to be “okay”.

[12]The matter went on (it goes on in this document) up to 18 January 2012 when a meeting was held. There is an attendance note, which is by no means put forward as a complete note as there are a number of gaps and question marks in the typed version that has been provided. This was prepared by the claimant’s solicitors. It appears that, either at that meeting or very shortly thereafter, the view was taken that the fibre content should be looked at because although, as the attendance note suggests, Professor Rowberry, on balance, was considering that replacement of the slabs may be required or may be justified on the basis of the slab thickness problem, it is clear, I think, even on the basis of this decision case, that the Co-operative decided to go on with the repair option. It is quite clear, on this pleading, albeit not necessarily on the facts as eventually to be found, that no decision was taken to replace in January, February or even in March 2012.

[13]By mid-March 2012, some findings had been reached in relation to the fibre. Those findings suggested that there was arguably an inadequate steel fibre content in the floor. Mr Roddick of the engineers retained by the Co-operative indicated on or about 14 March, so this document says, that, by reason of the steel fibre content, the floor could only support a loading of 55 kNs or 5.5 tonnes per leg as opposed to the 7 tonnes or 70 kNs included in the specification.

[14]I do not think it is particularly right or sensible for me to get involved at this stage with the detail of what actually happened. However, clear it is that a variety of people were giving advice directly or indirectly to the Co-op. They included Professor Rowberry, Mr Roddick and the Co-operative’s solicitors. From the key documents that have been provided, there is an email dated 17 March from Professor Rowberry to Mr Fry of the Co-operative’s solicitors. It runs to four pages in a rather small font and I do not intend to read large elements of that out; suffice it to say that Professor Rowberry made it clear that it was only because of his concerns about “proving a case against Birse which relied on knowing the properties of the floor, the workmanship and in particular the thickness and fibre content of the floor, that led to my suggestion to verify the fibre content, as this had become of increasing importance as the facts had developed it.”

[15]He then sets out, over the next three pages or so, the chronology, the early part of which I suspect he was not involved in but based on the documents and from the time that Halcrows became involved. He records, when he gets to the 18 January 2012 meeting, that he refers to localised thin spots, refers to the “very high risk that undetected defects remain under the floor” and he says this:

“It was expert advice that this figure [the 35 kilograms per cubic metre fibre figure that Stuarts was said to be using] was not reliable and needed to be verified. Fibre content had now become a critical factor that affected the area of concrete that needed to be removed relating to the edge condition as well as the actual capacity of the floor. This verification could be done by examining the actual fibre content and samples of concrete from the floor. If the fibre content was lower than 35 kilograms per cubic metre then this would change the analysis above and more floor may need to be removed.”

[16]He then explains that various cores were done and the steel fibre content tests were done, and he says on the last page of the email this:

“The results were presented to BSP [the remedial works consulting engineer] on 14th March. BSP then re-analysed the floor using the new data to see whether the lower fibre content would satisfy the floor loading of 70 kilonewton racking leg load for the intended thickness of the 150 millimetres. The results were reported on 15th and 16th March that the lower fibre content would not meet 70 kilonewton racking leg load and that the leg load would have to be downgraded to 55 kilonewtons.”

He goes on to say this:

“Fibre content and thickness are critical parameters in an SFRC floor. To meet design loads, the designer will select a concrete strength, floor thickness and fibre dosage that would produce the least cost design. In this case, the floor was assumed to be designed to have 35 kilogram per cubic metre fibre and 150 millimetre thickness.”

There are then a number of bullet points:

“Reduction in the thickness of the floor or the fibre content or both due to poor workmanship or control onsite will reduce the structural capacity on the floor. At Swift Valley, Stuarts has contrived to produce a floor that has a variable thickness, with some areas reduced to 70 millimetres as a result of deleterious materials left beneath the polythene separation membrane. The floor has never seen, as far as we are aware, the intended racking leg load of 70 kilonewtons, which would require five levels of racking stacked with 1.4 tonne Euro-pallets either side of the central frame back to back. This type of loading was not used by Woolworths but could happen with a future tenant for any recording [...]”

The next bullet point:

“There remains a high probability that the floor could fail in service due to undetected thin areas beneath or adjacent to racking legs irrespective of the fibre content. Confirmation that the fibre content is also low and below what would be needed in a design of compliant 150 millimetre thickness is also reason to condemn the floor. In Swift Valley, we have both situations.”

[17]Moving out of the bullet points, Professor Rowberry says this:

“I regret to have to be the bearer of such bad news and appreciate the Co-op’s frustrations with the development. As I set out above, this is an unusual situation with an expert (inaudible) and reconstruction occurring in parallel. We have been doing all we could to reduce the cost of slab replacement. If there is a failing in our approach, it has been to fail to grasp sufficiently early that Stuarts produced a rogue floor that is well below the high standing that they have in the SFRC flooring community. The Co-op should have followed the advice I gave in January 2012 that the variability and thickness was in itself sufficient to condemn the floor anyway.”

[18]At about this time, other advice was being proffered. Mr Roddick wrote on 16 March to Watts, the building surveyor also retained on the remedial works, saying this:

“Had the fibre content been correct then, the original spec was for a leg load of 70 kilonewtons. The repaired floor would have supported a leg load of 70 kilonewtons [...] Now we know the fibre content is not correct then, before the floor was repaired it would be susceptible to ongoing deterioration and in places not have been suitable for, say, 30 kilonewtons per leg. In reality, it would have just become unusable in the short period of time just from trafficking. If the repairs are completed, the evidence we have of the existing floor suggests that it will support 55 kilonewton leg load. This may well be acceptable for a company such as DHL. However, I cannot comment on any one company’s individual requirements without more knowledge of their operation.”

What Mr Roddick seems to have been saying then – whether he meant it or not I know not – on the face of his email was that the repaired floor would have supported a leg load of 70 kNs. Mr Brereton of Watts emailed back several hours later but that probably does not add very much.

[19]Mr Fry of the Co-operative’s solicitors wrote an email to Mr Scott of the Co-operative on 21 March. There has not been much reliance by the parties today on this, although there has been some reference to it. For instance, in numbered paragraph 1, “Structural advice,” he says that Professor Rowberry “advises that the only way to be completely sure of supporting the 70 kN leg load is to replace the floors”. At paragraph 2 he then talks about revisiting the points with David Wilmer. It is not clear who he is but he is doubtless someone with whom it was worth revisiting points. He sums up, at the end of his email, at paragraph 1:

“The engineering advice is that the slabs have failed and they can justify replacement. There remains some risk of floor puncturing even with the works done so far, but it depends on future use and future tenants will need to be clear on the bearing capacity which, as advised, is still not unreasonable. Existing racking appears to be limited to 50 kNs.”

There is then some other advice which is probably not germane.

[20]Going back to the prose part of the “decision”, there is reference to Mr Fry’s advice and to Professor Rowberry’s advice and to Mr Roddick’s advice, although not the part which I have just read out, and one then gets to this rather brief paragraph 67:

“The expenditure of further sums to replace the internal slabs of both warehouses was approved by the capital committee as set out in the email of 31st May and then referred to the board chairs committee in order to expedite approval to minimise delay to the works onsite. This final approval was obtained on 20th June.”

Coming back to the remainder of the prose part of the “decision”, that then takes one into the key documents which have been attached. There is an email from a Mr Martyn Hulme to a Moira Lees (I am assuming both of these are concerned with the Co-operative estates department) and he wrote:

“Moira, you will recall I presented and gained approval for the additional flooring works for the rugby RDC at the last capcom. This now needs the board’s approval and is scheduled to go to the 20th June meeting. Would you be in agreement to this paper going to chairs committee for earlier signoff, the key reason being that this will allow work to continue on site and minimise the delay in re-letting the premises? We are suing the original contractor for both cost of repairs and our loss of rental earnings, and this would also help as part of our attempt to be seen to mitigate our losses.”

Reference to the “capcom” is, as I understand it, the capital expenditure committee or the committee that dealt with such matters. The “chairs committee” appears to be possibly another committee but it may be that that is part and parcel of the board because Moira Lees replies on the following day, saying:

“Len is happy to deal with by chairs committee if you [let] me have paper. I’ll issue or, if next week, send to Pat Wade.”

Mr Hulme sent an email a few minutes later to someone else in the estates department:

“Can you convert the Rugby capcom paper to board for chairs committee and send tomorrow?”

[21]It looks, therefore, because no detail has been provided of when the decision was taken, as if at least a provisional decision was taken at the last capcom, whenever that was, but it was known that this needed board approval, which it appears was given on or about 20 June 2012. That appears from another email from within the Co-operative on 25 June which confirmed that the additional expenditure for replacement had been approved. There is nothing provided in this extensive “decision to replace” document as to the basis upon which this approval was taken. Paragraph 68 of the prose part of the decision document says this:

“The central and consistent concern which operated on the mind of the Co-op and its advisors, principally Professor Peter Rowberry, was whether the thickness of the warehouse floors were such as to be capable of reasonably satisfying the specification and/or reasonably satisfying a range of needs of possible tenants based upon the specification. It was only because of increasing concerns over the thickness of the warehouse floors that separate considerations arose as to the true level of fibre within the concrete. Co-op and/or its experts would never have gone down the route of looking at the question of actual fibre content used in the floors if the thickness of the floors had been judged to be reasonably adequate. Moreover, if the thickness of the warehouse floors had been in the order of 135 millimetres and if the general level of workmanship had been adequate then there would have been no question in the view of Professor Rowberry and/or in the mind of the Co-op of replacing the floors. The problems with the thickness of the warehouse floors taken together with the mounting evidence of exceptionally poor workmanship in the construction of the warehouse floors were the cause of the decision to replace the whole of the warehouse floors.”

[22]It goes without saying that, as none of the documents put before the board or the capcom committee have been disclosed, key documents which were called for have not been provided. It is not credible and I do not think it is really being suggested that the paper put before the capcom or the paper put before the board do not exist as they are clearly referred to. I am rather assuming that they have not been lost, although that is, of course, always a possibility.

[23]There is no indication other than what might be drawn by way of some sort of inference as to how, why, when, in what terms, on what basis and by whom the decision was taken to replace the floor slabs. I made it very clear and all counsel accepted that this needed to be done. What this decision document has done is to set out the history of who said what. It has attached a large number of doubtless relevant documents but also some incomplete documents, but it does not ultimately spell out what I required in my judgment at paragraph 12. That is very much to be regretted. I will come back to whether or not this can again be cured by a yet further attempt by the Co-operative to get its act together later.

[24]There is a series of arguments which have been put forward by Miss Sinclair QC and Mr Cannon QC along the lines that the terms of the Court of Appeal judgment in some way preclude an amendment along the lines predicated by the decision to replace document or by the draft re-amended particulars of claim that have been put forward. I suspect, although I am sure it is not intended as such, that this involves some attempt to re-argue the points that I have already addressed. In my first judgment on this, I made it clear at paragraph 16 that I would allow the amendments to plead that already pleaded defects such as thickness, joints and the like led causatively, at least sufficiently arguably, to the decision or need to replace the slabs. I deal with this in a number of places but at paragraph 16 I make it clear, as elsewhere, that permission to amend is therefore granted, subject to the provision of adequate particulars of how, why, when, in what terms, on what basis and by whom the decision was taken to replace the floor slabs. I made it clear that the exercise should be concluded and served in draft within 21 days of the Friday before this judgment was handed down. As far as I am aware, that was, timing-wise, complied with.

[25]Mr Cannon QC argues that the documents which have been disclosed show an unavoidable and effective elision between steel fibre content and thickness. To adopt the words of a song, you cannot have one without the other. Of course, even he accepts that that is not exactly right; if a slab of one inch or 25 millimetres thick had been provided with a vast quantity of steel fibre then he might well accept that that would be wholly inadequate and a breach of contract. However, he says that there is undoubtedly a correlation – for instance, a six inch or 150 millimetre thick slab which had no steel fibre in would probably be inadequate. He is not making that concession as a matter of evidence but as a matter of argument. Similarly, there might be, arguably, a lesser thickness but a greater amount of steel fibre which might also produce a floor that could take a loading of 70 kNs. He says that there is a complete tie-up between the two and that you cannot avoid a decision being made by reference at least to both, if not entirely to one factor. He points to a number of the emails and advice that has been given. It seems to me that that is much too forensic an approach to adopt at this stage. All things being equal, I would be concerned not to get involved at this stage, which is an application to amend, to disallow an amendment simply on the basis that it is a claim which may fail.

[26]I have been referred to Mr Hughes QC to authority in the Court of Appeal – ED&F Man LiquidProductsv Patel and the House of Lords case of Three Rivers District Council v Governor and Company of The Bank of England – and the reference particularly in Lord Hope’s judgment in that latter case to a number of principally Court of Appeal cases which express great reluctance for the court to have to get involved in mini trials and the drawing of forensic inferences on applications such as applications to amend or indeed summary judgments and the like. That broadly is not challenged as a matter of practice and it would not be right for me as such to refuse permission simply on the basis that, if one tries to analyse in detail the material that has been put before the court in the decision to replace document, one is ineluctably drawn to the conclusion that the claim for replacement costs is bound to fail by reason of the involvement chronologically and from an engineering point of view with the steel fibre complaint which has effectively been refused by the Court of Appeal. It is of course important that the amendment should not be allowed to any extent which would circumvent the decision of the Court of Appeal. Of course, one would never willingly or consciously seek to do that.

[27]However, I am, as I said, very concerned that yet again the Co-operative (although I hasten to say that I am not suggesting that it is not behaving deliberately badly or anything of that sort) has put together a doubtless well thought out document, it having had three weeks to get its act together, must have made a decision, in putting that document forward, that they could not provide the particulars. It may be (and I do not know so I speculate) that these capcom and board chairs committee or board committee or “the board”, whoever it is that took the decisions, simply rubber-stamped something which had been put forward and effectively decided. The “decision” document is signed with a statement of truth by Mr Scott, who is the national portfolio manager commercial for the Co-operative, but I am told by Mr Hughes that he was not one of the decision makers. There is a very substantial deficiency in what I called for, therefore.

[28]Mr Hughes QC says, doubtless on instructions, that this can be put right. However, his own skeleton put before the court contains some bar to that. At paragraph 31(v), although of course nobody is bound in legal terms by what their counsel says, doubtless on instructions, he says this:

“It is inevitably a matter of conjecture as to whether, absent the discovery of steel fibre issues, the decision would have been taken to replace the slabs. The final decision was not taken until the steel fibre issue was known.”

Then (vi):

“Although the issue of steel fibre cannot be artificially separated from the history of events leading up to the decision to replace the slabs, the Co-op will seek to prove at trial that: (a) but for the thickness issues, the steel fibre issue would not have been discovered; (b) but for the thickness issues, the steel fibre issue would not have required the replacement of the slabs; (c) but for the steel fibre issue, the replacement of the slabs may have been required.”

He goes on, in (vii), to say:

“In the circumstances, it will be for the court to determine, on considering all of the evidence, what the relative importance of steel fibre and slab thickness was in the decision making process and whether the Co-op will be entitled to recover all, some or none of the costs of the replacement works.”

[29]Now, there is, I hasten to say, some logic in what Mr Hughes QC says. It sounds condescending if I say ‘some’ but there is some logic in what he says there. However, that logic effectively involves all this material being put before the court (I will not say thrown up on the fan) and seeing what sticks and what the court is prepared to determine. It does seem to me, however, that it is up to the claimant, particularly when it is making a substantial departure from its originally pleaded case, to bring in a very substantial additional or enhanced claim going up from a few hundred thousand pounds to over £4 million with consequential losses, to comply with effectively what the court called for. It is not for the defending parties to guess or for the court to try to infer. The court and the other parties are entitled to be told what led to the decision, by whom the decision was taken, when, how and in what circumstances. That has not been complied with. I am very reluctant to allow the claimant a further opportunity.

[30]One of the reasons is that this case was started what seems to be a long time ago. It was started in September 2010 in the Manchester High Court District Registry. That is where it ended up in front of his Honour Judge Stephen Davies. I am assuming that the defendant has put in a Defence (I am not sure I have seen it consciously but there must be a Defence). Stuarts, although originally brought in as a defendant, is no longer proceeded against as a defendant, as I understand it, and has been brought in like Jubb & Partners as third and fourth parties respectively. There is currently no defence to the Part 20 proceedings brought by Birse against its subcontractor, Stuarts. I find that surprising but that seems to have happened by consent, and we are now potentially about a year away from a trial in this matter. I am very concerned, where the claimant has been given an opportunity first of all to get its original draft re-amendment right and secondly, when a court gives a judgment which says that permission to amend is, in effect, conditional upon spelling out in no uncertain detail what its case is, the question arises as to whether further leniency, because that is what it is, should be granted.

[31]All of the defending parties including Jubb, represented today by Mr Blunt QC, are very anxious to ensure that this matter comes on for trial as soon as is reasonably practicable. Of course, it cannot come on this year and, on any count, it cannot come on much before the middle of next year, if not the autumn of next year, but there comes a time when parties who are given opportunities to get their case in order and who fail to do so will not be allowed the leniency. There is an overriding objective which dictates what should be done. We are now just in the long vocation. This was a date that I fixed having regard to the convenience primarily of counsel, who could not, as I understand it, make it all together before today. This judge will be heading off, it being vacation. It will be important that, as the case-managing judge, I deal with this. It is unlikely, therefore, that if the claimant is given yet further opportunity to amend its re-amendment or its decision document, that it can come before the court much before October. Almost every time this matter (as I say, this is only the second occasion but this is what I anticipate) comes before the court on anything to do with amendments which create great sensitivities, there will be a contested hearing (this one has already taken over three hours) for a considered judgment to be reached on a further amendment and is going to delay matters. This is a very stale claim. Again, I am not being critical of the Co-operative necessarily in that regard, but these problems have been known about since before 2008, indeed well before 2008, and indeed it has had experts and consultants involved for a substantial period of time. The property was completed in 1998 and there comes a time, and I believe the time has come, when a full stop must be imprinted and therefore I am not prepared to allow the re-amendment to enable the claimant to plead a case related to replacement.

[32]It is very important for the court, at the earliest stage, given the Court of Appeal’s involvement, to be confident from the pleading that there is not an unwitting, let alone a witting, attempt to circumvent the decision of the Court of Appeal. I am afraid the pleading underpinned by the “decision” document put before the court simply does not do that. Therefore, in my judgment, the re-amendment in that regard should be disallowed.

[33]There are other matters which relate to the draft Re-amended Particulars of Claim. They all arise in paragraph 33(v). The first is (v)(a). This is in a paragraph which is headed, “Failure of the slab in warehouses one and two.” The failure is described in paragraph 28(iii) of the pleading, which talks about the property suffering from defects and, in particular in relation to the slabs, cracking and displacement, and a step, at least in one place, in the surface of the slab. Paragraph 33(v)(a) raises a further complaint about the lack of levels. It may well be that there is evidence to support this but the complaint is made that:

“Although the inadequate levels were not causative of any structural failure the defendant’s failure to achieve a slab which was sufficiently level was a further instance of very poor workmanship which, together with other instances of poor workmanship, diminished confidence in the quality of construction of the existing slab overall.”

The claimant then sets out why the floors did not reach the requisite levels, saying that the tolerance would allow plus or minus 18 millimetres whereas, at least in places, the tolerance is exceeded by up to 22 millimetres.

[34]I am not prepared to allow this amendment. It is not causative of any structural failure and it is not said, obviously or at all, to be part of the decision to replace. It is not addressed in the decision document clearly, if at all. It refers to “other instances of poor workmanship” which are not spelt out with any explanation as to why that might be a breach of contract, and therefore it is inadequately particularised and, for those reasons, I would refuse it. I, like others, can see from the photographs attached to the decision document at least some examples of what looks like poor workmanship. It might not be but it looks like poor workmanship. One cannot run a case which has nothing to do directly with the loss that is caused by reference to a few photographs. One has got to spell out what it is that is relied upon, why it is a breach of contract and the like. Mr Hughes QC says that it is going to be his client’s case that this was a rogue floor and that it was not just the thickness but there was a lack of confidence by his client in the floor as a whole. That in itself is a fair enough point to make, but if it is going to be run, it has to be spelt out. If it was one of the reasons for the decision taken to replace the slab or to carry out other remedial works then that could and should have been spelt out but it has not been.

[35]I will deal with the third sub-paragraph, 33(v)(c), now. There is no real objection to this, which talks about “save in the case of the double joint, there are no saw cuts and certainly there are no saw cuts at the required nine metre centres”. This replicates at least to some extent an allegation made in the original pleading at (iv) of paragraph 33 and I will give permission for that amendment to be made but it should come in at the end of (iv).

[36]The final new pleaded complaint is subparagraph (v)(b), which says:

“The slab, as constructed by the defendant, is not of sufficient thickness to reliably and over the life of the floor deal with the load duty called for by clause 2.08 contained within the employers’ requirements.”

The evidence of Professor Rowberry is that in order to fulfil the duty requirements of clause 2.08, the general thickness of slab is required in the order of 150 millimetres with a tolerance applied of plus or minus 15 millimetres. Accordingly, the slab ought to have demonstrated, upon testing and inspection, minimum thickness values in the order of 135 millimetres upon extensive testing and further testing. As described, the document entitled, “The decision to replace the warehouse slabs,” and dated 15th July, the slabs provided by the defendant exhibited extensive areas where thickness was substantially below 135 millimetres.

[37]There can be no complaint that the pleading should spell out that the slabs were less than 150 millimetres. That is reasonably clear from the case that is already pleaded. However, there is a conflict between the decision to replace document and that pleading, which is that the decision to replace document which is incorporated is predicated on the basis that it was Stuarts which specified the 150 millimetres. It is certainly true that the tolerance (and there cannot be any complaint about this) is derived from another contractual document which incorporates a particular document (TR34) but the 150 millimetres is taken apparently by the decision to replace the slab on the basis that that is what was specified by Stuarts. Indeed, it is something which Professor Rowberry, as far as one can tell, would not be unhappy with, provided, doubtless, that there was appropriate steel fibre reinforcement within it. Therefore I have to say that I am rather confused by the pleading at (v)(b) which is inconsistent with the document which is being incorporated. It is unsatisfactory as a matter of pleading, even under the CPR but even more so before, to plead evidence as such and therefore I am reluctant to allow this amendment.

[38]I am concerned also that, in my earlier judgment, I did require at paragraph 20 that the claimant should spell out the relevance both of the description of the pleaded defects and of the pleading of breach of the 70 Kns, and I was very anxious to ensure that there was no doubt or lack of clarity as to what is being pleaded. There is, in my judgment, a lack of clarity because of the apparent difference between the decision to replace document and this pleading, and reference to evidence of Professor Rowberry; no evidence is as such proffered although there are some contemporaneous emails in 2012 from him, and therefore I am not prepared to allow this, at least in its current form. It would be helpful, though I am not making it a pre-condition, for the pleading somewhere to spell out why 150 millimetres is taken. I suspect this may follow on from the view presaged by Mr Cannon QC, that the selection of six inches may be, at least in part, dependent on the amount of steel fibre that is incorporated as well. I may be entirely wrong about that, but it does seem to me that it would be helpful if a case was pleaded as to why the 150 millimetres is considered to be a satisfactory thickness, and whether it is at all dependent on anything other than concrete or the base on which it sits. Those are my decisions.

[39]At the moment, there is leave to re-amend the Particulars of Claim as I have described. I think there are a number of other amendments which are not challenged and which may go to other areas of breach which have nothing to do with the slab (indeed, maybe those amendments have already been granted) and there will have to be a re-hash of the pleadings again because there is a loss document, schedule of loss, which has been served and draft amended schedule of loss. It seems to me that that will have to be redrafted to limit the claim to costs, losses, other than those related to replacement. (End of judgment) (Discussions as to application for permission to appeal followed) ________________