In the recent case of D R Jones Yeovil Ltd v Drayton Beaumont Services Ltd¹ regarding a fire safety claim, the English Technology and Construction Court (“TCC”) has provided important guidance on the approach it will take when exercising discretion to allow amendments to such claims.
The case also confirms the heavy burden for claimants to prove that there is no reasonably arguable limitation defence, if the proposed amendments do not relate to facts which are the same or substantially the same as those already claimed. In addition, the novel design arguments made in the case, albeit unsuccessful, will be of particular interest to those considering potential causes of action against contractors involved in fire safety works.
D R Jones Yeovil Ltd (the “Claimant”) had been engaged to undertake works at Adderley Green Care Village in Stoke-on-Trent and sub-contracted mechanical services installations to Drayton Beaumont Services Ltd (the “Defendant”), which were carried out from late 2010 to 2011. However, in late 2011, the employer under the main contract became insolvent and the Claimant suspended its works. In 2015 a new employer engaged the Claimant to complete the main contract works and carry out further works to turn the site into a neurological unit.
The Claimant contended that the mechanical services installation works were defective and incomplete and, on 18 April 2017, commenced proceedings against the Defendant. The Defendant denied responsibility for the defects and claimed it was underpaid. The proceedings were listed for trial in March 2019 but, in an unusual twist of events, they were vacated after the Claimant discovered the Defendant attended the site in late 2018 and attempted to carry out remedial works to the fire dampers it had installed.
In March 2021, the Claimant applied to amend its particulars of claim to include claims alleging the Defendant was responsible for:
- design defects in the fire dampers as a result of changes to the manufacturer, model and fixing method without the Claimant’s approval (the “Damper Design Claim”); and
- defective fire-stopping to plastic pipework (the “Pipework Fire-Stopping Claim”).
Although the original claim included an allegation relating to the inadequate fixing of fire dampers, the Damper Design Claim raised a novel point alleging that the Defendant had overall design responsibility for the dampers and a duty to warn about the limitations of the design, even though the Defendant had no design liability under the sub-contract. The Pipework Fire-Stopping Claim, meanwhile, was an entirely new allegation based on the Defendant’s duties under the sub-contract.
The Defendant alleged that a six-year limitation period applied to these new claims, meaning they were now statute barred. The Claimant contended that a 12-year limitation period applied so they were still in time.