Balfour Beatty Regional v Construction Ltd (formerly Mansell Construction Services Ltd)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Jefford |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWHC 2022 (TCC) |
| Docket Number | Case No: HT-2022-000139 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2022] EWHC 2022 (TCC)
Mrs Justice Jefford DBE
Case No: HT-2022-000139
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice
Rolls Building, London, EC4A 1NL
Mr Tom Owen (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Claimant
Mr Hugh Saunders (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing date: 1 st July 2022
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 29 th July 2022
This is an application by the Claimant (“BB”) for early specific disclosure from the Defendant (“BM”). The Claim Form was issued on 20 April 2022. It has not yet been served and the parties are agreed that time for service should be extended. The Claim Form was issued before any steps had been taken to comply with the Pre-Action Protocol for Construction and Engineering Disputes.
Background
The dispute between the parties concerns a 6 storey complex including student accommodation and commercial units known as The Hive and located in Bethnal Green, London. The property is owned by Hive Bethnal Green Limited (“HBGL”). Practical Completion was certified on 21 August 2009.
The original developer of the Hive was JG Colts LLP. They entered into a JCT Design and Build Contract (2005 ed) with Mansell Construction Services Ltd. on or about 30 March 2008 and appointed BM as architect on or about 29 February 2008. BM's appointment included obligations to design, co-ordinate design of, and inspect the works. There were a number of sub-designers, sub-consultants and sub-contractors, including AWS Turner Fain Ltd. (external window and curtain walling sub-contractor), Baris Facades & Linings Ltd. (cladding and roofing sub-contractor), and HCD Building Control Ltd.
BM's appointment was then novated to Mansell. Mansell was acquired by BB in 2014 and its name was subsequently changed to Balfour Beatty Regional Construction Ltd.
On 25 June 2021 HBGL issued a claim form against BB (claim no. HT-2021-000242). These proceedings have been referred to as the Upstream Proceedings and are currently stayed until 30 September 2022 while the parties undertake the steps provided by the Pre-Action Protocol. Following the issue of the Claim Form, Addleshaw Goddard LLP acting on behalf of HBGL, sent to BB their PAP Letter of Claim dated 25 October 2021. In that letter, HBGL alleges defects in the design and construction of the Hive and specifically in the cladding, ventilation, windows and roofing, and the claim is for approximately £12 million.
Correspondence
By a letter dated 23 November 2021, which did not purport to be in accordance with the Pre-Action Protocol, Pinsent Masons, then acting on behalf of BB, passed on some or all of those allegations to BM. The letter was in brief terms but reflected what had been said by HBGL in the letter dated 15 October 2021, which was subsequently provided to BM.
Following a change of solicitors, BB's current solicitors (“CMS”) wrote to BM's solicitors (“RPC”) on 10 January 2022. Saying that they were keen to understand the background, they asked for the file BM held in respect of BB including “all work products such as drawings, designs, specifications, the original appointment of your client (signed version), site inspections records (relating to the façade and related works), the fire strategy report/ equivalent, and the letter issued to JG Colts/ the employer on final inspection of the works.” That was on any view a far reaching request for documents.
RPC responded on 7 February 2022. They said that, as the design and build contractor, BB should have the documentation CMS was asking for. They made the point that it was for BB to investigate the claims against them, that BM had very little detail of the alleged defects, and that they had no duty to disclose documents at this very early stage.
CMS replied on 10 February 2022. They said that BB had not undertaken the work itself and that BM would have much more extensive documentation than the design and build contractor. They asserted BB's right to the client file and made reference to “the RIBA's view”. Further, CMS said that BB would be entitled to the vast majority, if not all, of the documents sought by way of pre-action disclosure. RPC responded to each of these matters by letter dated 17 February 2022 and said that where no allegations had been set out against BM and no expert evidence provided to support a claim, they remained of the view that BM was not required to accede to this “extensive document request”.
The correspondence continued. In letters dated 17 February 2022 and 22 March 2022, CMS asserted BB's entitlement to the documentation (i) on the basis of a relationship of principal and agent, (ii) on the basis that the client file was BB's property, (iii) under “Paragraphs 5.2 and 5.3 of the RIBA Code of Conduct on the subject of record keeping”, (iv) on the basis of an entitlement to internal documents produced for BB's benefit (relying on Gibbon v Pease [1905] 1 KB 810); and (v) because they were entitled to pre-action disclosure. In the same letter dated 22 March, CMS set out again the documents that it sought. I cannot see that it was any different, other than in layout, from the original request but RPC considered it a more limited request and by letter dated 23 March 2022, RPC said that they were liaising with BM about the revised request and that if BM located relevant documentation it would be disclosed. The caveat to that was that what would be disclosed was what was relevant to the issues in dispute “as our client presently understands them based on the extremely limited information provided so far”.
I do not propose to set out the entirety of the correspondence that followed. It is sufficient to say that there was otherwise, during this period, a standstill agreement between the parties. CMS made it clear that it would make an application for disclosure – I assume the intention being to do so when the standstill agreement came to an end. CMS sought an extension to the standstill period. CMS, by letter dated 13 April 2022, proposed an extension during which period BM would give disclosure and Pre-Action Protocol correspondence would take place. In their reply dated 14 April, RPC complained that they had agreed to the previous extension on the basis that BB would provide its expert's findings, and any requests for documentation would be made by reference to that, but that nothing had been received. In particular, BM had not received BB's expert's findings, site inspection reports, details of remedial works and “clarity regarding your client's claim”. They asked for these by 19 April. CMS responded that BB would not provide this evidence and disclosure by return. There was more correspondence but no resolution and no extension to the standstill agreement.
The application
The present application was issued on 20 April 2022, that is at the same time as the Claim Form. The application sought directions for compliance with the Pre-Action Protocol; extensions of time for the service of the Claim Form and the Particulars of Claim; and early specific disclosure. The last of these was described in the application notice as “An order against the Respondent for early specific disclosure; alternatively delivery up and/or specific performance and/or an injunction to provide disclosure of documents”. I note that the application notice itself did not identify the procedural basis for the application for early specific disclosure, although the draft Order attached referred to Part 31. If anything, the emphasis in the application was on a contractual entitlement to the documents sought. Under the heading “Basis of Order”, the application said nothing about an application under the Civil Procedure Rules but said:
“The parties are in contract, and the Respondent is obliged contractually to give the disclosure sought. The Applicant has a contractual and/or proprietary right to the documents. The disclosure is necessary for completion of the Protocol. The Respondent controls and is in possession of the documents sought.”
The documents sought, as set out in the draft Order, fell into three categories:
(i) Category 1 (appointment documents): a signed/ executed copy of the Appointment, including its schedules and incorporated documents.
(ii) Category 2 (design documents): the design documents of the Respondent and subcontractors and/or sub-consultants, including but not limited to AWS Turner Fain and Baris Facades & Linings Limited and HCD Building Control Limited, approved for construction of the Hive; and the co-ordination documents of the design and correspondence with the above and with Building Control concerning the cladding, windows, roofing and ventilation at the Hive.
(iii) Category 3 (inspection documents): the Respondent's inspection and commissioning records, including minutes, reports, photographs and correspondence concerning the cladding, ventilation, windows and roofing at the Hive; and the letter under paragraph 50 of Part 2 of Schedule 2 of the Appointment.
Taking the terms of the application and the draft Order together, this was a wide application for documents both in BM's possession and control. BB confirmed at the hearing of the application that it only sought documents actually in BM's possession. By the time of the hearing of the application, a copy of the Appointment had been provided and only categories 2 and 3 remained in issue. Although BB's skeleton...
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