Co-Operative Group Ltd v Birse Developments Ltd & Ors [2013] EWCA Civ 474 (01 May 2013)

Co-Operative Group Ltd v Birse Developments Ltd & Ors [2013] EWCA Civ 474 (01 May 2013)

Paragraph 33A introduces a new cause of action based on systemic structural inadequacy due to insufficient steel fibre content, which is fundamentally different in kind from the previously pleaded defects and does not arise out of the same or substantially the same facts as the original claim. The amendment is not permissible under Limitation Act 1980 s.35 and CPR 17.4(2).

Citation
[2013] EWCA Civ 474
Parties
Respondent: Co-operative Group Limited; Appellant: Birse Developments Ltd; Third Party Appellant: Stuarts Industrial Flooring Limited (in Administration)
Jurisdiction
England and Wales
Judgment Date
01 May 2013
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed
Legal Topics
Amendment of Pleadings, Limitation Periods, Breach of Contract, Remedial Works, Collateral Warranties
Construction Law Contract Law Civil Procedure Amendment of Pleadings Limitation Periods Breach of Contract Remedial Works Collateral Warranties

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Parties

Co-operative Group Limited

Respondent

Birse Developments Ltd

Appellant

Stuarts Industrial Flooring Limited (in Administration)

Third Party Appellant

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Does the proposed re-amendment in paragraph 33A introduce a new cause of action?
  2. 2 Does the new claim arise out of the same or substantially the same facts as those already in issue?

Ratio Decidendi

Paragraph 33A introduces a new cause of action based on systemic structural inadequacy due to insufficient steel fibre content, which is fundamentally different in kind from the previously pleaded defects and does not arise out of the same or substantially the same facts as the original claim. The amendment is not permissible under Limitation Act 1980 s.35 and CPR 17.4(2).

Court Disposition

Appeal allowed

Orders

  • Proposed paragraph 33A of the Re-Amended Particulars of Claim disallowed
  • Judge's order of 1 November 2012 to be amended to reflect the outcome