Co-Operative Group Ltd v Birse Developments Ltd & Ors

Co-Operative Group Ltd v Birse Developments Ltd & Ors

Paragraph 33A asserts a new cause of action based on systemic structural inadequacy due to insufficient steel fibre content, relying on facts and consequences not previously pleaded; it does not arise out of the same or substantially the same facts as the original action, and is therefore impermissible under limitation rules.

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
Civil Appeal / Court of Appeal Judgment
Outcome
Appeal allowed; proposed Paragraph 33A of the Re-Amended Particulars of Claim disallowed.
Legal Topics
Amendment of Pleadings, Limitation Period, Cause of Action, Breach of Contract, Remedial Works, Collateral Warranties
Contract Law Construction Law Amendment of Pleadings Limitation Period Cause of Action 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

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the proposed re-amendment in Paragraph 33A introduces a new cause of action
  2. 2 Whether the new claim arises out of the same or substantially the same facts as the original action

Ratio Decidendi

Paragraph 33A asserts a new cause of action based on systemic structural inadequacy due to insufficient steel fibre content, relying on facts and consequences not previously pleaded; it does not arise out of the same or substantially the same facts as the original action, and is therefore impermissible under limitation rules.

Court Disposition

Appeal allowed; proposed Paragraph 33A of the Re-Amended Particulars of Claim disallowed.

Orders

  • Paragraph 33A of the Re-Amended Particulars of Claim is not permitted.
  • Counsel to agree amendments to the judge’s order of 1 November 2012 to reflect the outcome.