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think carefully but timely when making and amending a claim

24 October 2013

In Co-operative Group v Birse Developments and others, Co-op originally sought damages for the cost of repairing its concrete slab flooring laid by Birse. In October 2012, Co-op amended its claim, seeking full replacement of the flooring due to it being insufficiently reinforced.

In May 2013, Co-op sought further amendment to its claim, stating that the deficiency was in fact that the floor was too thin and that this had always been the case. The Court of Appeal held that if the flooring had always been too thin, Co-op should have known this when it made its first amendment application in October 2012. The Court viewed the delays caused by this oversight as a ‘foreseeable risk’ Co-op should have avoided; their first application having already delayed matters. Co-op’s argument in May 2013 should clearly have been pleaded far earlier and so their application was dismissed.

This case highlights the importance of correctly targeting claims at the outset and the consequences if time is allowed to slip.

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