1) Sportcity 4 Management Ltd v Countryside Properties (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Eyre |
| Judgment Date | 17 June 2020 |
| Neutral Citation | [2020] EWHC 1591 (TCC) |
| Date | 17 June 2020 |
| Docket Number | Case No: HT-2019-MAN-000023 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2020] EWHC 1591 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
His Honour Judge Eyre QC
Case No: HT-2019-MAN-000023
Andrew Singer QC (instructed by Linder Myers Solicitors) for the Claimants
Toby Watkin (instructed by Mills & Reeve LLP) for the Defendant
Hearing date: 9 th June 2020
HH Judge Eyre QC:
This is the Defendant's application for summary judgment and/or striking out of the claim. The hearing was conducted remotely by way of the MS Teams platform hosted by the Chambers of Mr. Singer QC.
The claim arises out of the development of the Sportcity Living complex. This consists of 350 apartments in a number of blocks. The Defendant is a property developer and built that complex. The works began in 2002 and there is a dispute which as explained below is immaterial for present purposes as to whether it is to be regarded as having been completed in 2007 or 2010.
The Manchester City Council is the freehold owner of the land on which the complex is built. It demised the land by three leases each of 250 years to AMEC Developments Ltd (“AMEC”). The Claimants are the management companies of the blocks forming the development. In due course AMEC subdemised the individual apartments by a series of underleases (“the Leases”) to which the Defendant and the relevant management company were parties in addition to the proposed sub-lessees of the apartment in question. It is common ground that the terms of the Leases are identical for all material purposes. In October 2008 AMEC assigned each of the headleases to the relevant management company and so the Claimants acquired the rights of AMEC in relation to their respective blocks of apartments.
The last residential sub-lease was granted in December 2007 and the Defendant initially contended that should be regarded as the last date by when the Claimants' potential causes of action in negligence and under the Defective Premises Act 1972 can have accrued for limitation purposes. The Claimants said that the relevant date was the completion of the estate in 2010. The Defendant sensibly accepted that for the purposes of the current application I should proceed on the basis of the later date which is in any event more than six years before the commencement of the proceedings.
In late 2013 the agents managing the properties for the Claimants asserted that there were problems with the cladding on the blocks of apartments. The Defendant does not accept that there were in fact problems but it is accepted that the Defendant attended the complex in March and April 2014 and undertook some works. There was a further attendance in August 2017. I will consider the relevance of those further actions below.
The claim form appears to have undergone a number of changes and the court file contains claim forms stamped as issued on 1 st May 2019, 2 nd August 2019, and 31 st January 2020. Again for current purposes there is no need to explore the consequences of that in any detail because all the dates in question are more than six years after 2010 but less than six years after April 2014.
The Pleaded Cases .
In the Particulars of Claim the Claimants assert three separate causes of action: a claim under the Leases; a claim under the Defective Premises Act 1972; and a claim that there was a breach of a duty of care in tort owed to the Claimants. Each claim is in respect of what are said to have been “life-threatening defects in the design and/or construction of the cavity barriers and fire-stopping measures in the properties”. The claim under the Leases is put on the footing that on a proper construction the Defendant was the Landlord under the Leases and as such owed the obligations imposed by clauses 6.1 and 6.3. Alternatively the Defendant is said to be responsible for ensuring that there was compliance with those obligations by reason of having been a party to the Leases and/or the Landlord's agent. The claim under the 1972 Act is put on the basis that as a person undertaking work for or in connexion with the provision of a dwelling the Defendant owed a duty under section 1 of that Act. Finally it is asserted that the Defendant owed a duty of care to construct the apartments and the estate with reasonable care and skill and so as to ensure that the same complied with Building Regulations. The Claimants seek damages of just over £15m as the estimated cost of recladding all the properties together with sums totalling approximately £840,000 in respect of cavity barrier and fire stopping works and related items.
The Defendant accepts that it carried out the development and that it owed a duty in respect thereof under the 1972 Act. It denies any breach of that duty and says that any claim became statute-barred before the commencement of these proceedings. The Defendant denies that it is the Landlord for the purpose of the Leases or that any actions taken as an agent of the landlord gave rise to an obligation to the Claimants. It also denies that there has been any breach of clauses 6. 1 or 6.3 of the Leases. Finally, the Defendant denies that it owed the alleged common law duty of care; denies any breach of such a duty; and says that the losses alleged are pure economic loss with the consequence that any duty which the Defendant did have did not extend to such losses.
The Claimants take issue with those points in the Reply. For present purposes it is to be noted that in the Reply the Claimants invoke section 1(5) of the 1972 Act. They contend that works undertaken in 2014 meant that “the cause of action in respect of the Defendant's work has recommenced as at April 2014”. They also say that the Defendant's attendance at the properties in August 2017 and its subsequent failure to undertake necessary remedial work amounted to defective work in respect of which the cause of action accrued as at August 2017.
The Application .
The Defendant's application sought striking out of the claim pursuant to CPR Pt.3.4(2)(a) as disclosing no reasonable grounds for bringing the claim alternatively summary judgment under CPR Pt 24. In practice the contention was that striking out was appropriate in respect of the tort claim with summary judgment being sought on the claims under the Leases and the 1972 Act.
The approach to be taken to a summary judgment application is well-established and although they differed as to their operation here the parties did not disagree as to the principles. In short the test is whether there is a claim which has a real rather than fanciful prospect of success. The court is not to conduct a mini-trial and is to be alert to the scope for expansion of a case at trial and for matters to appear rather different after cross-examination and oral explanation. However, the court must also guard against “Micawberism” and it is not sufficient for a party simply to assert that something will turn up to bolster its case. Although not conducting a mini-trial the court does not have to accept a party's assertions at face value if they are incompatible with contemporaneous documents or with inherent likelihood. Where the issue between the parties turns on a question of law or of construction then summary judgment may well be more apt than in cases turning on factual disputes but even in the former category the court must remember that the hearing of a summary judgment application is not a trial and that the question is whether the claim has a real prospect of success. A claim which is potentially statute-barred is not liable to be struck out if the claim otherwise discloses reasonable grounds for bringing the claim. However, a limitation defence can be a proper basis for an award of summary judgment if there is no real prospect of that limitation defence being defeated at trial.
The Claim under the Leases .
This element of the claim alleges breaches of clauses 6.1 and 6.3 of the Leases. Clause 6 begins with the words “Covenants by the Landlord with the Management Company and the Tenant” and the immediately following operative words are to the same effect. Clause 6.1 is a covenant by the Landlord that the Estate and the Development will be completed and the curtilage laid out in accordance with the plans and specifications approved by the local planning authority. Clause 6.3 is a covenant for quiet enjoyment expressed in conventional terms.
The Claimants' case is that “the Defendant is the Landlord under the Leases on a proper construction of the Leases.” In my judgement that argument is simply untenable and has no real prospect of success.
The Claimants say that they will rely in particular on clauses 2.9, 2.10, 3, and 4 of the Leases. Clauses 2.9 and 2.10 provide as follows:
“Rights reserved to the Landlord Countryside and the Management Company.
“2.9 Rights and easements excepted and reserved to the Landlord Countryside and the Management Company are excepted and reserved also (where appropriate) in favour of the owner or owners for the time being of the Development and the Estate … and all persons authorised by it or them ….”
“Regulations
“2.10 The Landlord Countryside and the Management Company shall have the right to impose and amend reasonable regulations regarding the use and enjoyment of properties on the Estate from time to time in accordance with the Lease”
Clause 3 is a demise so far as is material for...
To continue reading
Request your trial
-
Grenfell: Remedying Defects And Establishing Change
...issues that surround the Grenfell tragedy. Sportcity 4 Management Limited and others v Countryside Properties (UK) Limited [2020] EWHC 1591 (TCC) In this case, Countryside Properties (UK) Limited (the "Defendant") made an application for summary judgment and/or striking out the claim brough......