J Sainsbury Plc & Anor v WSP Consulting Engineers Plc & Anor [2004] EWHC 2556 (TCC) (4 November 2004)

J Sainsbury Plc & Anor v WSP Consulting Engineers Plc & Anor [2004] EWHC 2556 (TCC) (4 November 2004)

The amendment to substitute a lower figure for remedial works is irrelevant because, under the contractual arrangements, the claimants would not have incurred any cost had they invoked their rights; therefore, the defendant's mitigation argument fails. The amendment to include the cost of the planned extension is permitted, with consequences to be addressed if the claimants pursue a related claim for foregone profits.

Citation
[2004] EWHC 2556 (TCC)
Parties
Claimant: J Sainsbury PLC; Claimant: Sainsbury's Supermarkets Limited; Defendant/part 20 Claimant: WSP Consulting Engineers PLC (formerly WSP Kenchington Ford PLC); Part 20 Defendant: Keller Limited
Jurisdiction
England and Wales
Judgment Date
04 November 2004
Procedural Posture
Civil Litigation (construction Dispute) / Interlocutory Application During Trial
Outcome
Application to amend defence to substitute lower remedial figure refused; application to amend defence to include extension cost permitted; application to strike out sentences in further information response refused.
Legal Topics
Mitigation of Loss, Amendment of Pleadings, Damages, Remedial Works, Extension of Time
Contract Law Construction Law Tort Law Mitigation of Loss Amendment of Pleadings Damages Remedial Works Extension of Time

Case Brief

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Parties

J Sainsbury PLC

Claimant

Sainsbury's Supermarkets Limited

Claimant

WSP Consulting Engineers PLC (formerly WSP Kenchington Ford PLC)

Defendant/part 20 Claimant

Keller Limited

Part 20 Defendant

Procedural Posture

Civil Litigation (construction Dispute) / Interlocutory Application During Trial

Legal Issues

  1. 1 Whether the defendant may amend its defence to substitute a lower figure for remedial works
  2. 2 Whether the claimants failed to mitigate their loss by not invoking rights under the Keller contract
  3. 3 Whether the defendant may amend its defence to include a figure for the cost of a planned extension

Ratio Decidendi

The amendment to substitute a lower figure for remedial works is irrelevant because, under the contractual arrangements, the claimants would not have incurred any cost had they invoked their rights; therefore, the defendant's mitigation argument fails. The amendment to include the cost of the planned extension is permitted, with consequences to be addressed if the claimants pursue a related claim for foregone profits.

Court Disposition

Application to amend defence to substitute lower remedial figure refused; application to amend defence to include extension cost permitted; application to strike out sentences in further information response refused.

Orders

  • Defendant's application to amend defence regarding remedial works cost refused.
  • Defendant's application to amend defence regarding extension cost permitted.