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I have no sympathy for the Claimants in this case, but the finding in the absence of it having been pleaded is something of a concern.

Whilst this case centres on FD, it seems to me that the decision allows for all sorts of matters to be argued at trial when they have not been pleaded. Would it be any different if a Defendant suddenly decided to argue contributory negligence at trial, even though not formally pleaded, or for a Claimant to introduce a new head of damage as the trial evidence emerges?

On the basis of this decision, if evidence was before the trial Judge, both are possible. Both parties always want to know the case they are facing and not limiting the parties to what they have pleaded creates unwelcome uncertainty in my view.