Azure East Midlands Ltd v Manchester Airport Group Property Developments Ltd
| Jurisdiction | England & Wales |
| Judge | Judge Grant |
| Judgment Date | 07 May 2014 |
| Neutral Citation | [2014] EWHC 1644 (TCC) |
| Docket Number | Case No 3BM50091 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 07 May 2014 |
[2014] EWHC 1644 (TCC)
IN THE BIRMINGHAM COUNTY COURT
TECHNOLOGY & CONSTRUCTION COURT
Civil Justice Centre
Bull Street
Birmingham
His Honour Judge David Grant
Case No 3BM50091
Mr Warner appeared on behalf of the Claimant
Mr Whitfield appeared on behalf of the Defendant
This is the adjourned case management conference and also the cost management hearing in this matter. As I shall explain in a little more detail below, it appears that the claimant was two days late in filing its cost budget before the initial hearing, so that instead of having been served seven clear days before that hearing, it was in fact served five clear days before that hearing.
The claimant is represented by Mr Warner of counsel, and the defendant is represented by Mr Whitfield of counsel, as on the previous occasion. On that occasion, 18 th March 2014, towards the end of that hearing when I turned to consider the issue of costs management, Mr Whitfield informed me that he had only noticed on his way to court that day that it appeared that the claimant might have been two days late in filing and serving its costs budget. However, and understandably, in those circumstances Mr Whitfield had not been able to take instructions from those instructing him in respect of this aspect of the case.
It was in those circumstances that I made the orders in paragraphs 9 and 10 as follows; namely, that by 25 th March the defendant's solicitors were to inform the claimant's solicitors whether they intended to take the point that the claimant's costs budget was apparently served two days late, and if the defendant's solicitors did inform the claimant's solicitors that the point was being taken, then any application for relief from sanction should be filed and served by 1 st April 2014.
In the interim there has been some debate between the parties whether it was appropriate for the defendant to state initially whether or not it was going to take that point, rather than for the claimant first, and in any event (as the party apparently in breach), to make an application for relief from sanctions. As it happens, the claimant has now its application for relief from sanctions, which is dated 2 nd May 2014. No point is taken by the defendant that such application was made later than the date specified in paragraph 10 of the order of 18 th March 2014. Were it necessary for me to have done so, I would have granted the claimant an extension of time within which to make such an application.
The background to the case is as follows; as stated in the preamble to the order of 18 th March 2014, the gist of the action relates to whether the defendant has failed to comply with or to implement the expert determination, in the manner alleged in paragraph 15 of the amended particulars of claim. The case summary sets out the position in rather more detail as follows:
"1. The parties entered into an agreement for lease on 5 th March 2010 which included provision for the construction of hotel premises at Pegasus Business Park at East Midlands Airport. The agreement for lease was subsequently amended … and there was a variation agreement dated 25 th October 2011.
2. A dispute arose between the parties in respect of the works under the agreement for lease. The issues in dispute, which remain relevant to these proceedings are
(a) the provision of a mobile phone signal in the main public areas of the building and in the guest rooms in accordance with paragraph 1.1 of the schedule to the agreement to vary the agreement for lease …; and
(b) the paint finish in the hotel."
Mr Warner has reminded me that there is in fact a third area of dispute conveniently referred to as the 'Wheatcroft Management Suite issue' which is the subject of continuing discussion between the parties.
To return to the case summary:
"3. In accordance with clause 22 of the agreement for lease, the parties referred the disputed matters, along with others, for determination by a member of the RICS, Mr Don Smith, FRICS FCArb.
4. Following submissions by the parties, Mr Smith delivered his determination dated 4 th June 2013. The determination provided …
(a) that the first defendant had failed to provide a mobile phone signal and should forthwith take all necessary measures to provide such a signal; and
(b) that the painting of the hotel was inadequate in that the vinyl matt finish used on the walls in the corridors and public areas was not fit for purpose, and that the first defendant was liable to pay the claimant the proven or reasonable costs incurred up to the date of the determination of repainting the corridors and public areas …
5. The claimant alleges that, notwithstanding the determination by Mr Smith, the defendant had failed or neglected to carry out the above matters.
6. In response the defendant asserts that it has taken all reasonable steps in connection with the provision of the mobile phone signal but that it has not been implemented due to delays by the contractors they have approached, and the redecoration quotes go beyond the scope of the determination.
7. There are further issues outstanding between the parties relating to the building management system controllers and the air handling unit serving the Wheatcroft Suite."
That is the matter to which I referred just a moment or two ago.
Since the first case management conference, the parties have now compromised the second of the issues identified in the case summary, namely the issue relating to the paint finish in the hotel, and that issue is the subject of a draft consent order dated 30 th April 2014.
The claimant's first point in the context of the cost budgets and cost management is that it was not in fact in breach of CPR rules 3.12 to 3.18 because it had filed its case management information sheet ("CMIS") in proper time before the first case management conference. At the bottom of page 3 of the CMIS the parties are required to give an estimate of their incurred and overall costs. Here both parties filed and served CMIS on 14 th March 2014, which was the date those CMIS were required to be filed and served before the first case management conference: see the notice of the case management conference at page 29 of the application bundle.
Mr Warner developed this point in the course of his oral submissions this morning, pointing to the distinction that can be drawn between the requirement to provide estimates of costs through the medium of filing a CMIS on the one hand, and the requirement to serve a costs budget on the other hand. The thrust of Mr Warner's point is that it was reasonable for those instructing him to construe the notice of case management conference to mean that the parties were required to file both their CMIS and their costs budget at the same time, namely the time stated in the notice, which in this case was by 4pm on 14 th March 2014. That would have been 3 clear days before the first management conference rather than the period of 7 clear days provided by CPR rule 3.13. However, in making those submissions Mr Warner accepted that this point is not made explicitly on the face of...
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