Co-Operative Group Ltd v Birse Developments Ltd & Ors
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE BRIGGS
Areas of Law
- Civil Procedure
- Construction Law
- Contract Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The case concerned whether an amendment to the Claimant's Particulars of Claim constituted a new cause of action, which did not arise out of the same facts as initially pleaded. The lower court refused the amendment on discretionary grounds, which the Appellant appealed. The Court of Appeal upheld the judge's decision, noting the new claim involved fundamentally different facts, thus situating the new claims outside the permissible scope of amendments under the Limitation Act 1980, s.35, and CPR 17.4(2). The appeal was dismissed.
Mr Justice Stuart-Smith:
Introduction
The Defendant [“Birse”] was the design and build main contractor for the construction of a large warehouse near Rugby, which has generated two actions now running concurrently. Birse’s subcontractors included the Third and Fourth Parties in action HT-13-204 [“Stuarts” – specialist industrial flooring subcontractor; and “Jubb” – engineering consultancy services] and the Defendant in action HT-13-69 [“Geofirma” – specialist geotechnical design, engineering and contractor services]. The litigation arises because defects are said to have developed in the external hardstanding, the drainage system and the floor slab as a consequence of inadequate design or construction. The Co-Operative Group Ltd [“Co-op”] is the long leaseholder of the premises and is the Claimant in action HT-13-204. Birse is the Defendant in that action and the Claimant in action HT-13-69. The structure of the two actions and the reasons why it has come about that there are two actions are not material for present purposes.
Co-op commenced proceedings on 14 September 2010, about 12 years after practical completion. Limitation is one of the many issues between the parties.
In addition to the main contract and various sub-contracts (of which more later), collateral warranties were given to the original leaseholder [“CRS”] by Birse, Stuarts and Jubb. The Stuarts and Jubb warranties provided that they could be assigned twice without the consent of the warrantor but that thereafter they could only be assigned with consent, which was not to be unreasonably refused. As appears in more detail later, there have been three agreements to assign the warranties and consent was not obtained for the third assignment, which was intended to assign them to Co-op.
On application being made by Jubb and Geofirma, the Court directed that preliminary issues should be tried and gave Stuarts and Co-op permission to make submissions at the trial of those issues. In the event, Stuarts made submissions while Co-op maintained a watching brief. The preliminary issues that were directed to be tried were:
Issue 1:
Whether Birse’s causes of action in the tort of negligence against Jubb are time barred by virtue of section 2 of the Limitation Act 1980;
Whether or not the action brought by Birse against Geofirma in the tort of negligence is time barred by virtue of section 2 of the Limitation Act 1980.
Issue 2:
Whether the attempt to assign the benefit of Jubb’s warran