Archlane Ltd v Johnson Controls Ltd (First Defendant) Cofely Ltd (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwards-Stuart |
| Judgment Date | 10 May 2012 |
| Neutral Citation | [2012] EWHC B12 TCC |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 10 May 2012 |
[2012] EWHC B12 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Rolls Building,
Fetters Lane,
London EC4A 1NL
The Honourable Mr Justice Edwards-Stuart
Mr M. De Gregorio appeared for the Claimant
Mr G. Woods appeared for the First Defendant.
Mr M. Wheater appeared for the Second Defendant.
Thursday 10 th May 2012
This is an application to amend the defence of the First Defendant. It is opposed by both the Claimant and the Second Defendant. This claim arises out of a flood that occurred in October 2008 at Sea Containers House, which is the well known building on the South Bank of the Thames. The flood was caused by the overflowing of water header tanks on the top floor of the building. The level of water in those tanks was controlled by various float switches and these included a fail safe high level protection float switch, which was designed to detect abnormally high levels of water in the tanks. When that was activated it would shut down the pumps that fed the tanks and the system would then have to be reset manually.
The problem that arose in practice was that this lock out feature could be activated by interruptions of the power supply. So in 2006 the management contractor for the building, not the Claimant, instructed the First Defendant to carry out a small modification that would permit the auto restart of the system in the event of a power failure. The cost of this modification was trivial, some £173.
It is accepted that the instruction to carry out this modification was given to the First Defendant, that the First Defendant invoiced for it subsequently and was eventually paid. It is accepted by all parties that the work was in fact carried out by someone. Unfortunately, far from solving the problem the work created a new one because the auto restart system as installed in fact disabled the high level float protector, which therefore did not operate to prevent overflowing of the tanks as it should have done.
In pre-trial discussions, which went on for some three years or so, it appears to have been assumed by all the parties that the work was carried out either by the First Defendant itself or by a subcontractor, but neither the Claimant nor the Second Defendant can point to any admission to that effect by the First Defendant.
It is important to bear in mind that because there were no contractual relations between the Claimant and the First Defendant, the First Defendant is sued in tort alone. The First Defendant's original defence, served in December 2011, contained the following averments. Paragraph 7 of the particulars of claim was simply agreed. It read as follows: "At all material times Johnson owed the Claimant a duty to take reasonable care in carrying out the works agreed in VO13 so as to avoid causing any damage to the property." The following paragraph, paragraph 8, read as follows: "The Claimant understands that the VO13 works were carried out by Johnson in approximately March or April 2008. Johnson installed a Tempatron 341–070 relay and altered the wiring of the booster pump control system in the property." To that the First Defendant pleaded as follows: "Paragraph 8 is agreed. Johnson instructed either an employee or a subcontractor to carry out these works. The employee or subcontractor in turn carried out the works."
Then paragraph 15 of the particulars of claim set out particulars of negligence of the First Defendant, Johnson. In response to that paragraph 15.4 of the defence read as follows: "Johnson has been unable to conclude its investigations into the identity and correct status of the person who carried out the material works. In the event that the person was an employee of Johnson then Johnson will accept liability for any of the failures set out at paragraphs 13–15 to the extent that the court finds that such are failures. Johnson reserves the right to amend their statement of case to argue that the works were carried out by a subcontractor, in which case Johnson owes no duty of care other than a duty to take reasonable care to appoint an appropriate subcontractor."
About a week after that defence was served the case came before the court on what I assume was the first case management conference, and Mr. Justice Ramsey gave directions. Paragraph 4 of his order was in the following terms: "If the First Defendant wishes to amend its defence along the lines indicated in paragraph 15.4 of its defence to allege that the VO13 works, or any part hereof, were carried out by an independent contractor, it must make its application no later than 4.00 p.m. on Friday 27 th April 2012." I need not read the rest.
What then happened was that on 2 nd May, just a few days after that deadline, the First Defendant made an application to amend its defence and the proposed amendments are as follows. First, there is no amendment at all to paragraph 7, which continues to admit paragraph 7 of the particulars of claim that I have just read. Paragraph 8 is now to read as follows: "Paragraph 8 is denied. Johnson denies that it carried out the VO13 works. Johnson further denies that any employee, contractor, or other party for which it was or might have been responsible, carried out the VO13 works. Johnson agrees that the party that carried out the VO13 works installed the relay as per paragraph 8."
Then there are consequential amendments to paragraphs 13 – 15; for example, at paragraph 14 there is now a denial that Johnson was responsible for the person or party who carried out the relevant works.
What this really boils down to is an assertion by the First Defendant that the works were carried out by, in effect, a complete stranger. Mr. Woods, who appears today on behalf of the First Defendant, accepts that that is in effect the case.
The trial of the action is set to take place on 16 th July and it is accepted by Mr. Woods that if this application is allowed the trial would have to be adjourned because the Claimant in particular have said they would require time to carry out various investigations. Mr. Michele de Gregorio, who appears on behalf of the Claimant, and Mr. Michael Wheater, who appears on behalf of the Second Defendant, have both referred me to the relevant considerations that should be applied when the court is considering whether or not to give permission for an admission to be withdrawn. They are to be found at paragraph 7.2 of Practice Direction 14 against the side number 14PD.7. That reads as follows:
"In deciding whether to give permission for an admission to be withdrawn the court will have regard to all the circumstances of the case, including:
(a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;
(b) the conduct of the parties, including any conduct which led to...
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