Fire safety claims: the court upholds pleading standards to be applied in professional negligence claims

In a claim alleging defects in cladding to the external walls of a property, a defendant architect has successfully applied for further information on the claim in negligence against it. The application decision in Evolve Housing and Support v Bouygues (U.K.) Ltd & Ors [2022] EWHC 906 (TCC) confirms that the court will require proper particulars of negligence against construction professionals in fire safety claims and it will order further information if the case is not properly pleaded.

Background

The claim arises out of the construction of a new YMCA hostel, known as Alexandra House, in Croydon between 2011 and 2012. The claimant (Evolve) alleges that there are widespread fire safety defects in the copper and terracotta clad external walls of the property, necessitating the full-scale replacement of the cladding systems.

Evolve has brought claims against the original building contractor, the employer’s agent and the project architect alleging that their involvement in the design and construction of the external walls fell below the standard reasonably expected of them. It is alleged that the construction professionals are in breach of their contractual and tortious duties to Evolve.

On 28 April 2021, the defendant architect (Stride Treglown) served several information requests on Evolve, primarily seeking further particularisation of Evolve’s case in negligence against it. In particular, Stride Treglown stated that the vague and unfocused repetition of allegations made against the first defendant building contractor was not a proper plea against the third defendant architect. Evolve responded to the requests on 26 May 2021. The thrust of Evolve’s position was that it was unable to properly plead its case until it had been provided with disclosure of the designs for, and inspections records of, the property.

Stride Treglown therefore brought an application seeking an order from the court requiring Evolve to provide properly particularised responses to its requests for further information. Stride Treglown limited its application to those requests which sought particularisation of Evolve’s case on breach and causation in connection with its assertions of negligent design and negligent inspection.

Decision

The court held that Stride Treglown is entitled to know how Evolve puts its case based on what has already been disclosed and granted the application in full. Not ruling out the possibility that the formal disclosure process which is yet to be completed may reveal further significant documentation, the court noted that it will be open to Evolve to reserve its position if further relevant information becomes available to it.

In reaching its decision, the court referred to the judgement in Pantelli Associates Ltd v Corporate City Developments No2 Ltd [2010] EWHC 3189 (TCC) which held that “[w]here the particulars of claim contain an allegation of breach of contract and/or negligence, it must be pleaded in such a way as to allow the defendant to know the case that it has to meet. The pleading needs to set out clearly what it is that the defendant failed to do that it should have done, and/or what the defendant did that it should not have done, what would have happened but for those acts or omissions, and the loss that eventuated.” Reference was also made to the decision in Towler v Wills [2010] EWIC 1209 (Comm) which similarly noted: “The purpose of a pleading or statement of case is to inform the other party what the case is that is being brought against him…so that he may plead to it in response, disclose those of his documents which are relevant to that case and prepare witness statements which support his defence. If the case which is brought against him is vague or incoherent, he will not, or may not, be able to do any of those things.”

Comment

The decision provides as useful reminder of the pleading standards to be applied in professional negligence claims. The judgment itself helpfully lists out Stride Treglown’s information requests as well as Evolve’s inadequate responses which the court ordered to be answered afresh. The decision also highlights that the court does not view substantial disclosure as a precondition of being able to coherently set out your case in a way which allows the defendant to know the case that it has to meet.

Given the current climate post-Grenfell, and the Government’s desire to hold the construction industry to account for the cladding scandal, there have been questions around whether the court will adopt a more “claimant-friendly” approach and lower the standard of pleading expected from claimants in cases relating to fire safety. For example, whilst specific to the particular facts, the court recently refused to strike-out a defective cladding case on the basis of lack of particularisation, noting that the defendant’s ability to understand the case must be viewed in the context of a very high level of awareness in the construction industry of the issues surrounding façade systems failing to meet the fire safety requirements of the Building Regulations (see Crest Nicholson v Grafik Architects and NHBC Building Control [2021] EWHC 2948 (TCC)). What the decision against Evolve suggests, though, is that this “high-level of awareness” cannot be used by claimants to excuse poor or vague particularisation. Whilst the court will not necessarily go so far as to immediately strike-out a case based on lack of particularisation alone, it will still uphold the usual requirements of a statement of case and will order further information if the case has not been properly pleaded.

Further reading:

Evolve Housing and Support v Bouygues (U.K.) Ltd & Ors [2022] EWHC 906 (TCC)

Pantelli Associates Ltd v Corporate City Developments No2 Ltd [2010] EWHC 3189 (TCC)

Towler v Wills [2010] EWIC 1209 (Comm)

Crest Nicholson v Grafik Architects and NHBC Building Control [2021] EWHC 2948 (TCC)