THE CURRENT IMPORTANCE OF PLEADINGS 7: “THE CLAIMANT AND WILL NOT BE PERMITTED TO PLEAD SUCH A CLAIM IN BROAD AND VAGUE TERMS”: A CLAIMANT HAS TO PLEAD HOW THE ALLEGED BREACHES HAVE CAUSED THE ALLEGED LOSS

Here we are looking at an application that was all about the claimant’s inadequate pleadings. After putting the defects right (at at third attempt)  the case was allowed to proceed – but it was a lengthy and expensive process for the claimant.   The decision was a close one and the claimant required relief from sanctions. The judge highlighted the inadequate nature of the claimant’s initial pleadings and the fact that the claimant had made two attempts to rectify the situation. Even the most recent attempt still had errors.

“The Claimant cannot and will not be permitted to plead such a claim in broad and vague terms, in the hope of avoiding having to confront and address these issues, because that would prevent the Defendant from pleading a sufficiently detailed response, and would make it difficult, if not impossible, to set a sufficient agenda for case management (including effective alternative dispute resolution) and for any eventual trial”

KEY PRACTICE POINT

This case emphasises the importance of a claimant pleading their case fully in relation to both liability and damages and (as was required in this case) limitation. The claimant had already been the subject of two adverse costs orders.  Pleading properly at the outset would have avoided delay and expense.

THE CASE

In Michele Carrington v American International Group UK Limited [2025] EWHC 1010 (TCC) HHJ  Stephen Davies (sitting as a High Court Judge) considered a case where the claimant’s pleaded case had earlier been held to be inadequate.

THE FACTS

The claimant owns a house and the defendant  was the insurer of the companies that provided services as architect, surveyor and contract administration to carry out work on that house.  The work on the house did not go well. The builders left site before completion and the architectural companies resigned. The claimant had moved out of the house which, her case is, is now unfit for habitation.  The work was done in 2013 and the claimant issued proceedings in November 2012.

PART OF THE ACTION WAS STATUTE BARRED

It is common ground that the claimant cannot rely on causes of action accruing before 17/9/12.     This gave rise to the need, among other things, to plead why certain claims were not statute barred.

THE INADEQUATE NATURE OF THE INITIAL PROCEEDINGS

The claimant’s initial Particulars of Claim were held to be inadequate. The court had made several orders giving the claimant an opportunity to plead the case fully.  The judge was now considering whether the third draft was compliant and whether the claimant had, in fact, complied with earlier court orders in relation to the proper pleading of her case.

THE JUDGMENT ON PLEADINGS

The judge set out the history of the claimant’s inadequate pleadings.

15. The claim has had a lengthy procedural history, due largely – it must be said – to the Claimant’s failure to plead her case in a way which clearly identified each alleged breach of duty, each alleged loss suffered, how each alleged breach caused each alleged loss and the basis on which it is said that these claims are not statute-barred.

16. As I have observed at the two previous hearings which have taken place before me, and as is well known to those practising in the field of professional negligence in construction cases, whilst it can be relatively easy to plead and prove a case on breach by a construction professional such as Godfrey, and whilst it can also be relatively easy to plead and prove a case as to the losses suffered as a result of the failure of a construction project, it is often far more difficult to plead and prove how the alleged breaches have caused the alleged losses. This is because the professional is not normally also responsible for undertaking the works and will not normally have warranted that the works can and will be carried out at the cost agreed with the contractor and within the timescale agreed with the contractor. That difficulty is even more acute in a case such as this, where the Claimant did not take prompt steps to replace Godfrey and nor did she instruct nor pay for the existing contractor, or a replacement contractor, to complete the works to a suitable standard. Here, the limitation issues present a yet further difficulty.

17. However, this does not mean that it is impossible to plead and prove a claim on the basis that due to the Claimant’s particular circumstances, if – as she says – they were made known to Godfrey at the time of contracting, she was unable to afford to take the necessary remedial measures in 2013 and that continuing inability has led to substantial delay and cost, both financial and personal. If so, then the Claimant is entitled to be compensated for such losses: see the discussion in Keating on Construction Contracts (12th edition) at paragraph 9-018ff. However, the Claimant has the burden of pleading and proving her case on such a basis.

18. The Claimant cannot and will not be permitted to plead such a claim in broad and vague terms, in the hope of avoiding having to confront and address these issues, because that would prevent the Defendant from pleading a sufficiently detailed response, and would make it difficult, if not impossible, to set a sufficient agenda for case management (including effective alternative dispute resolution) and for any eventual trial.

19. At the two previous hearings I was satisfied that the Claimant had failed to plead her case in acceptable terms. I have given her two chances to re-plead her case properly and in sufficient detail to enable the Defendant to respond and for the case to be properly case managed and tried. The question which I must now decide is whether the Claimant has now done enough to allow her case to proceed further, as she says she has, or whether she has still failed to plead a case which ought to be allowed to proceed to trial, as the Defendant contends.

THE ORDER MADE AT EARLIER HEARINGS

There had been earlier hearings where the Particulars had been subject to criticism and the claimant given a chance to amend.

23. At this second hearing, I expressed my view that the draft Amended Particulars of Claim, albeit an improvement on the previous version, remained deficient because it was difficult if not impossible to understand the Claimant’s full and detailed case on breach, loss, causation and limitation. That was particularly so because whilst allegations of breach were pleaded in the main body of the pleading, the case on remedial works and costings appeared in Appendix 4, which was a copy of the report in schedule form produced by a building surveyor (the Croft report) in Appendix 4. In order to even attempt to see the details and the linkage it was necessary to refer to Appendix 5, which was intended to operate as a form of Scott Schedule, which included the Claimant’s case in separate columns in relation to: (i) breach of contract and limitation; (ii) breach of duty of care and limitation; (iii) particulars of breach; (iv) particulars of causation of loss and damage; and (v) particulars of remedial works and loss and damage by reference to Appendix 4. The inter-relationship between these three elements of the statement of case was far from clear. Of further and particular concern was that the pleading attempted to skate over the limitation issues by failing to plead in clear terms what breaches occurring on or after 17/9/12 caused what problems and with what consequences and, also, that there was repeated reference to particulars of breach as “including” the matters pleaded, which it appears was intended to seek to give the Claimant the opportunity to add further unpleaded particulars at some further stage, notwithstanding that the Defendant would not have had the opportunity to consider them beforehand.

24. By the time of the hearing there was an acceptance by the Claimant that the current version was inadequate and unacceptable in the respects identified above and that the limitation issues meant that a number of the existing pleaded claims could not be sustained in their current pleaded form. In the event, as well as making the declarations referred to above to clarify what the Claimant could and could not allege given the limitation issues, I also ordered that unless the Claimant filed and served by 23/12/24 a replacement Amended Particulars of Claim which complied with the specified requirements set out in that order her claim should be struck out. I ordered her to pay the costs of the amendments and of the strike-out application. I directed a further case management conference to take place on 28/1/25, before which the Defendant should confirm whether or not it accepted that the Claimant had complied with the unless order.

25. The specified requirements were that:

i) Each allegation of breach must be fully and properly pleaded, explaining whether the breach is a breach of contract (if so specifying the relevant contractual term/s breached) and/or an allegation of negligence (if so specifying the particular obligation/s breached) and providing full details of each allegation.

ii) In respect of each such allegation the Claimant must set out a positive case as to why the allegation is not statute-barred, explaining when it is said the obligation / breach in question arose and when (over what period) the events alleged to constitute breach occurred. If it is said that it is a breach of a continuing obligation proper details must be given.

iii) In respect of each such allegation the Claimant must set out a positive case as to what the consequences were of such breach, whether alone or in combination with other alleged breaches, and bearing in mind that the consequences have to be judged in the light of the Claimant’s case that the design works undertaken by the Defendant pre-construction stage (for which she cannot claim) were seriously defective and in the light of the Claimant’s acceptance that the construction works had already commenced before 17 September 2012, so that the Claimant must clearly explain on what basis breaches occurring after that date made a material difference to the pre-existing position. The Claimant must set out a positive case as to whether or not she is saying that the consequences would have been that Ease would have properly performed the building contract to completion, explaining the basis on why she says so, and whether she says that would have been at the original contract cost or at some extra costs, which is nonetheless less than the cost she says she will now incur, again providing details (and again explaining how breaches which are not time-barred made a material difference to the existing position). If not, then the Claimant must set out a positive case as to what would have happened and how and why she would have been in a better position as a result.

iv) In respect of each such allegation the Claimant must set out a positive case as to what loss and damage she has suffered as a result of such breach and its consequences, again whether alone or in combination with other alleged breaches and again explaining how breaches which are not time-barred made a material difference to the existing position. Insofar as the claims are made on the basis of the Claimant’s inability to fund completion works after the termination of the contract by Ease, including in particular any overall increase in construction costs and/or the costs of alternative accommodation, the Claimant must set out particulars of her case as to how – if at all – her financial position was made known to the Defendant pre-contract and/or pre-breach and why her financial position was such that she was unable to fund completion post termination by Ease and/or to fund sufficient works to enable her to continue living in the property but able to fund the costs of renting alternative accommodation.

THE CURRENT PLEADING

The judge found that (i) most of the amended Particulars of Claim complied with the earlier order and was compliant; (ii) part of the amendment was not compliant and that aspect of the case was struck out; (iii) there were some errors in the Particulars that needed to be revised.  The compliant aspects of the case were allowed to continue.

117. However, I must assess these submissions against the backdrop that – save for the need for the Amended Particulars of Claim to be amended, first by recalculating the claim for loss in relation to the structure and external elements (which is essentially purely mathematical) and, second, by removing the alternative claim in paragraphs 28R to 28AV – the Claimant has finally pleaded a case which meets the criteria specified in the previous orders, both in form and in substance, and thus allows the Defendant to plead a case in response and for the case to proceed to trial.

118. In the circumstances, whilst the background of delay and previous failure to do so and to comply is extremely unsatisfactory and, in particular in relation to the second non-compliance, worthy of strong condemnation, in my judgment it is plain that on an application of the overriding objective the amendments ought to be allowed so that the case can be determined on the merits at trial.

THE RESULT

The judge held that, although there were errors in the current Particulars of Claim, they were sufficiently pleaded. He rejected the defendant’s application for summary judgment.  The claimant was granted relief from sanctions (the detail of which will be looked at in a later post).