Following the judgment in Secker v Fairhill Property Services, Julian Matthews, discusses the difficulties arising from attempted late amendments of case with Lexis Nexis.

Read the full interview with Lexis Nexis below.

Original news

Secker v Fairhill Property Services Ltd and others [2017] EWHC 69 (QB)

Briefly, what was the background to the case?

The claimant purchased a newly built house, which had been completed immediately prior to the sale. Eighteen months after the purchase, the claimant tripped and fell over the leading edge of a path which led to the rear garden of the property, sustaining a very serious spinal injury that rendered her tetraplegic. She brought a claim against the defendant builders for breach of contract, contending that the builder was in breach of an implied term that the property would be constructed using a reasonable standard of workmanship and in accordance with the relevant British Standards.

No claim was brought in tort, or under the Defective Premises Act 1972 (DPA 1972). It may have been that no tortious claim was pursued in order to circumvent the possibility of a finding of contributory negligence.

Why was the case of particular interest?

The case is illustrative of the approach now taken by the courts in relation to late applications for amendment, and the importance of pleading the case correctly at the outset.

An application was made by the claimant, shortly before trial on the issue of liability, to amend the particulars of claim to add:

  • a claim that there had been a collateral contract between the claimant and the builder under which the builder had agreed to make good any defects notified to him in consideration of her promise to buy, and that the ‘step’ over which the claimant tripped was a defect which had been notified to him and which had not been repaired, and
  • a claim in tort, for breach of the common law duty of care.

HHJ Cotter QC, sitting as a Deputy High Court Judge, granted the first of these applications on the grounds that the new contractual case was not complex and the defendants had already largely met the issue of whether the ‘step’ had ever been complained about and whether building regulations and standards had been met: the amendment did not add a great deal to the case and would not cause the defendants difficulty in their preparation. However, he refused to permit the second proposed amendment, on the basis that the claimant had not provided any real reason why a claim of breach of common law duty of care should be added, and had to proceed on the basis that it simply represented a change of mind at a late stage. It represented a fresh allegation and, if allowed, the defendants would require new and further legal analysis and expert evidence. The claimant was alleging that the step constituted a trap. That was distinct from an allegation of a failure to comply with building standards. That could not be met on the current evidence or without further work. Late amendments required regard to be given to the overriding objective and the justice to both parties. If the amendment was allowed the trial date would have to be vacated or the defendants would have to face a new freestanding allegation at a very late stage.

The matter then proceeded to trial before Stuart-Smith J. On the morning of the second day, the claimant made a further application to amend the particulars of claim:

  • to add a claim in tort, and
  • to add a claim for breach of statutory duty under DPA 1972

Permission to make these amendments was refused, the first on the ground that HHJ Cotter QC had already decided against such an amendment and his order had not been appealed, and the second on the basis that it was now far too late to add a wholly new cause of action that would involve consideration of a different range of issues not addressed in the evidence already heard. However, Stuart-Smith J added that it was an important matter to be taken into account that the defendants needed to know the case that they had to meet in order to be able to assess the risks that they faced, and to be able to protect their position. A late change of case was plainly prejudicial to the defendant’s insurers, as well as to the defendant builders themselves, in making those assessments.

At the commencement of closing submissions, the claimant abandoned the contract case originally pleaded, based upon an alleged implied term, and proceeded solely upon the basis of the collateral contract claim.

What did the judge decide, and why?

In his judgment, Stuart-Smith J found:

  • that the defendants had so constructed the property as to leave ‘an exposed edge which gave rise to a real and, in my judgment, unacceptable risk of tripping. The features which made the risk real and unacceptable were (a) the depth of the exposed edge, (b) the likelihood that it would be at least partially concealed by grass, and (c) the fact that it was placed in a domestic garden where people of all ages would relax, work and play in circumstances where it was inherently likely that they would at least sometimes, and entirely reasonably, not be applying their mind to the presence of the lip… It was not in any real sense a step in the normal meaning of the word.’ He said the configuration of the change in levels gave rise to an unacceptable danger
  • that the claimant had complained to the defendant that the pathway was defective and dangerous on at least two occasions: she considered the trip to be dangerous and that she mentioned in general terms that the path should be level with the grass
  • that the defendant had said he would sort it out, albeit in general terms referring to the paving as a whole and without specific reference to the trip
  • that the claimant trusted him to come back and do the work in due course
  • that ‘the accident was as simple and foreseeable as it was catastrophic for Mrs Secker. While carrying out a simple everyday task in her garden, she wanted to put some weeds in a wheelie bin. She walked towards the bin, tripped on the trip, and fell forwards.
  • that there was ‘no evidence upon the basis of which I could properly find the existence of a collateral contract as pleaded or any collateral contract that would be of assistance to Mrs Secker in bringing her claim’. The judge held that there had been a conversation between the claimant and the builder about defects prior to purchase, but that this had been in the context of the builder referring to his obligations under the NHBC Scheme. This was reinforced by the steps taken by the claimant’s solicitors to ensure that the NHBC guarantee was in force and that the property was properly identified. It was also material that the claimant’s solicitors’ had given express advice that, if she expected the vendors to remedy or pay for remedying any defects, special conditions would have to be added to the contract, and that was not done.

The judge found that the claimant relied upon the existence of the NHBC guarantee, which she understood to be what obliged the builder to carry out any snagging works. The judge accordingly found that there was no evidence to support the claim that there was a collateral contract, and that as this was the only basis upon which the claim was being pursued, ‘the claim as now advanced must fail’ 

What practical lessons can those advising take away from this case?

The judge did not accept the defendant’s case that the ‘step’ did not constitute a foreseeable danger and was not a ‘trap’, yet was not able to find for the claimant because he was constrained by the way the case had been presented. Had the claim been pleaded for breach of the common law duty of care from the outset, it seems highly possible that the judge’s findings would have been that the claimant’s accident was a foreseeable consequence of a breach of that tortious duty. While pleading the matter in contract plainly had the perceived advantage of preventing the defendant being able to argue

that the claimant was contributorily negligent, the contractual background was such that the original argument that there was an ‘implied term’ in the contract of sale was not tenable, as was recognised at the end of the evidence. The claimant’s evidence, as it emerged at trial, was also insufficient to enable a collateral contract to be proved. Had the claim been pleaded from the outset in the alternative in tort, the difficulties encountered by the claimant would not have arisen, although some concessions may have had to have been made in relation to contributory fault.

What happened in this case reflects the generally more robust approach being adopted by the courts since the modification of the Civil Procedure Rules 1998, SI 1998/3132, which place an emphasis on managing cases efficiently, and allotting to cases ‘an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and enforcing compliance with rules, practice directions and orders’.

Are there any other points worth mentioning here?

Defendant insurers have, perhaps rightly, felt that ‘justice’ has too often meant that claimants will be given a large measure of leeway to change and amend their cases during the course of litigation, without proper consideration being paid to the disruptive effect upon their proper and efficient management of claims. A great deal of care is now taken by most major insurers in trying to make an accurate assessment of risk. Stuart-Smith J’s ruling in relation to refusing permission to amend expressly recognised that insurers and their indemnified need to be able to make those proper and

careful assessments, in advance of trial, without the threat of last minute changes and adjustments being imposed upon them. In cases such as this, there are no costs orders that could have been made which would have compensated properly for the prejudice caused as a result of a very late change of case. That the courts recognise this as part of the balancing exercise that has to be performed is plainly fair and correct.

Julian Matthews is ranked as a leading junior in Chambers & Partners and The Legal 500 in clinical negligence (Band 1), personal injury (Band 1) and product liability. He has a broad practice of high value and/or difficult and demanding cases, generally involving complex medical or technical issues. Julian acts for defendants (with instructions on behalf of major insurers, the NHSLA, and corporate clients) and for claimants, particularly in respect of maximum severity claims. He has been involved in landmark decisions and regularly writes and presents on matters within his expertise.

In Secker v Fairhill Property Services Julian acted for the defendants.

Interviewed by Kate Beaumont.

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