Fully Cladding Your Particulars Of Claim Is Key

• Published date: 05 July 2021
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Construction & Planning
• Law Firm: Mills & Reeve
• Author: Mr Ben Hardiman and Dan Korcz

Beware the pitfalls of bringing a claim at the last possible opportunity, and the prohibition against pleading new causes of action in the Reply to Defence ... Martlett Homes Limited v. Mulalley & Co. Limited [2021] EWHC 296 (TCC).

Background

The Claimant (Martlett) owns five high rise tower blocks in Hampshire (the "Properties"). On 20 January 2005, the previous owners of the Properties contracted with the Defendant (Mulalley) to undertake various refurbishment works. Those works included the design and installation of external cladding and which were carried out between 05 December 2006 and 07 April 2008 (the "Works").

The Claim

Martlett issued proceedings on 11 December 2019 and served them on 09 April 2020, the very last possible day for service. The allegations against the Mulalley concerned various defects in the Works including (i) defects in the fire barriers in the Properties' cladding (ii) a failure to fix properly the combustible expanded polystyrene ("EPS") insulation boards to the external walls of the Properties; and (iii) a failure to repair properly the Properties' existing structure. Damages sought were circa '8m including the cost of remedial works, and the cost of having the Properties constantly patrolled in case of a fire.

Mulalley denied that the alleged breaches had caused loss. They argued that Martlett, as the building owner, would have been required to arrange the replacement of the EPS cladding fitted to the Properties in any event. Following the tragic fire at Grenfell tower in June 2017, it was no longer permitted to use such cladding on buildings over 18 metres in height and thus the remedy for any breach lay with Martlett itself.

In an attempt to address this, and rather than seeking to amend its Particulars of Claim, Martlett pleaded in its Reply that even if Mulalley was right on causation, it would remain liable as it was in breach of contract by using [our underlining] combustible insulation in the cladding (the "Alternative Case").

The Application to strike out

Mulalley subsequently applied to strike out the claim on the basis that Martlett was not permitted to raise a new claim in its Reply, specifically asserting that the Alternative Case was not responsive to the Defence, but rather sought to set up a new claim.

In response, Martlett sought permission to amend its Particulars of Claim.

Decision

The Judge found that the criteria set out in CPR 16 relating to precisely what content should be pleaded within a Statement...