Blackpool Borough Council v Volkerfitzpatrick Ltd
| Jurisdiction | England & Wales |
| Judge | Stephen Davies |
| Judgment Date | 03 August 2020 |
| Neutral Citation | [2020] EWHC 2128 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: E50MA036 |
| Date | 03 August 2020 |
[2020] EWHC 2128 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
TECHNOLOGY AND CONSTRUCTION COURT (QB)
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
HIS HONOUR JUDGE Stephen Davies
SITTING AS A JUDGE OF THE HIGH COURT
Case No: E50MA036
and
and
and
Martin Bowdery QC & Robert Clay (instructed by Squire Patton Boggs (UK) LLP, Birmingham B3) for the Claimant
Anneliese Day QC and Christopher Knowles (instructed by Fieldfisher LLP, London EC4) for the Defendant
Simon Hale (instructed by Clyde & Co LLP, London EC3) for the Fifth Party
Hearing date: 14 July 2020
APPROVED SUPPLEMENTARY JUDGMENT IN RELATION TO COSTS
I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
I handed down my principal judgment on 15 June 2020 (neutral citation [2020] EWHC 1523 (TCC)) and now deal with costs following a further hearing on 14 July 2020.
I summarised what the case was about and what the outcome of my judgment was in the introduction to my substantive judgment which, as relevant to costs, I reproduce below (with the table in paragraph 13 expanded to compare the recovery with the pleaded claim):
1. … In 2007 Blackpool Borough Council, the claimant, secured central government funding for … the construction of a new tram depot at Starr Gate. The tram depot was designed and constructed to be a landmark building at the principal southern approach for those visiting Blackpool by car. It has a striking modern design, with a curved aluminium roof with deep cantilevered soffits, an aluminium wall looking west out to sea, long bands of 3-dimensionally curved “wave-formed” decorative blue cladding features along the south and east elevations and fully glazed double bi-folding tram doors to the north. The tram depot was procured by a design and build main contract made between the claimant and Volkerfitzpatrick Limited, the defendant, in 2009, completed in 2011 and brought into operation in 2012.
2. In these proceedings the claimant, as the owner of the tram depot, complains that significant parts of the tram depot as designed and constructed do not meet their intended design life of 50 years and nor are they suitable for the exposed coastal marine environment where the tram depot is located and where it suffers from regular exposure to the elements.
3. The complaints are set out in more detail in the Scott schedule attached to the Particulars of Claim. The claimant contends that substantial remedial works are required at a total cost said to be in excess of £6M.
4. The claims fall into 7 principal categories, namely:
a. The galvanised steel cold formed components connecting the wall and roof sections to the portal frame, namely the purlins, the cladding rails and the connecting brackets (items 1–3 of the Scott schedule).
b. The galvanised steel internal components of the roof, namely rails, clips and spacers (item 4 of the Scott schedule).
c. The wall cladding panels to the north, east and south elevations (items 5 and 6 of the Scott schedule).
d. The soffit panels to the underside of the roof overhangs on the north, east and part south elevations (item 7 of the Scott schedule).
e. The decorative wave form cladding panels affixed to the wall cladding panels to the east and part north and south elevations (item 8 of the Scott schedule).
f. The tram access doors, glazed side panels and supports and operating mechanisms in the north elevation (“the tram doors”) (items 9 and 10 of the Scott schedule).
g. Other general defects in and associated with the depot building (items 11 – 80 of the Scott schedule).
5. Against each item in the Scott schedule an amount is stated for the “estimated quantum”, without particulars being given as to what works are said to be required or how the amount was calculated. At the end of the Scott schedule there is added to the sub-total of the individual items (£5,765,736.45) claims for five additional items, again without particulars being given: (a) design of remedial scheme (£333,000); (b) procurement of remedial works (£100,000); (c) legal advice in connection with remedial works programme (£25,000); (d) project management time estimate for remedial works (£287,500); and (e) project management time to date dealing with defects (£187,500).
6. By its defence the defendant disputes that the contract required the individual elements of the tram depot in respect of which complaint is made to have a design life of 50 years, contending that the contractual design life is either 25 years or 20 years depending upon the element in question.
7. Save for some limited admissions the defendant disputes that the elements do not meet their specified design life or are otherwise unsuitable. It contends that such corrosion as has been experienced has been caused by the claimant's failure to maintain the tram depot appropriately, in particular to clean the exterior of the tram depot with sufficient frequency. It complains that the claimant has unreasonably refused to accept its offers to undertake remedial works in relation to some elements which it admits require attention. It disputes the remedial works proposed and the costs claimed, contending that the claimant is unreasonably seeking to obtain a full-scale replacement of the relevant elements when that is wholly unnecessary and when the costs claimed are wholly excessive.
8. The defendant brought additional proceedings against the third party (“Range”) as the specialist roofing and cladding subcontractor engaged to carry out design and construction works in relation to the roof and external cladding. Those proceedings related to the design and construction of the roof and wall cladding. Shortly before trial they were compromised.
9. The defendant also brought additional proceedings against the fourth party (“RPS”), which was the lead multi-disciplinary design consultant engaged by the defendant in relation to the main contract works. The claims made against RPS related to the design and specification of the structural and secondary steelwork, the roof steel components, wall cladding panels, cantilever roof soffit panels, wave form cladding panels, tram doors and other general defects. Those claims were compromised on the first day of trial, so that Ms Cheng QC only appeared on that day before withdrawing.
10. Finally, the defendant also brought additional proceedings against the fifth party, Caunton Engineering Limited (“Caunton”), which was the specialist steelwork subcontractor engaged by the defendant to carry out steelwork design and construction works. The claims made against Caunton relate to the cold formed components and four specified items in the Scott schedule. Those claims have not been compromised and remain for determination, as do the contribution proceedings brought by Caunton against RPS in respect of which, as part of its settlement with RPS, the defendant took over conduct on its behalf.
11. The case was listed at the first case management conference in February 2019 for a 4-week trial commencing 24 February 2020. The trial took place as scheduled. ….
12. …
13. In summary, I award the claimant the total sum of £1,110,781.80 broken down in the table below. This, whilst a substantial sum, is significantly less than was claimed. The principal reasons why the claimant has failed to recover a more substantial award are because: (a) I am satisfied that the design life obligation period is either 20 or 25 years rather than 50 years; (b) I do not accept the claimant's case that the cold formed components are inadequate for their design life or otherwise unsuitable (nor in any event that they need replacement); (c) in a number of cases I am satisfied that limited replacement or repair rather than full replacement is required.
Section
Item
Amount pleaded (£)
Amount awarded (£)
H
The cold formed components
£2,765,000
Nil
K
The roof components
£1,010,000
£150,304.88
L
The wall cladding panels
£1,037,000
£67,342.23
M
The roof overhang soffit panels
£154,000
£107,525
N
The wave form cladding panels
£122,000
£122,000
O
The tram doors
£449,239.95
£311,729.91
P
The other Scott schedule items
£228,496.5
£246,330.68
Sub-total
£1,005,232.70
Q
The add-on claims at 10.5%
£933,000
£105,549.40
Total claim / award
£6,698,736.45
£1,110,782.10
It will be seen that the discrepancy between the claim and the recovery is a significant issue, as is the complete failure in relation to the most substantial value claim and the modest recoveries in relation to the second and third largest claims.
As is all too often the case at this stage in litigation of this kind, the parties are very far apart in their respective primary cases.
The claimant contends that it is the successful party and that it should recover all of its costs against the defendant. It accepts that Caunton was successful and that its costs should be borne by the claimant and by the defendant, but submits that the defendant should bear the larger share of such costs.
In contrast, the defendant contends that it is the successful party and that the claimant failed to do better than the defendant's Part 36 offer so that the claimant should: (a)...
To continue reading
Request your trial
-
Sheffield Teaching Hospital Foundation Trust v Hadfield Healthcare Partnerships Ltd
...Ribbins [1977] 1 WLR 1458 (CA); Arkin v Borchard Lines Ltd (Nos.2&3) [2005] 1 WLR 3055 (CA); Blackpool BC v Volkerfitzpatrick Ltd [2020] EWHC 2128 (TCC). It is not open to Veolia to seek security for costs against the Trust or Kajima; in any event, as set out in Ms Boxall's second witnes......
-
Geoquip Marine Operations AG v Tower Resources Cameroon SA
...rule too often and too readily, it would cease to be a general rule. Thus, in Blackpool Borough Council v Volkerfitzpatrick Ltd [2020] EWHC 2128 (TCC); [2020] Costs L.R. 1295, HHJ Stephen Davies said (at para. 13–14): “13. The second question is whether the court should indeed be cautious ......
-
Maroil Trading Inc. v Cally Shipholdings Inc.
...claimants. It might even be said to be more usual than not (see for example Blackpool Borough Council v. Volkerfitzpatrick Ltd [2020] EWHC 2128 (TCC), per HHJ Stephen Davies (sitting as a High Court Judge) at [18]; White Book (2020) (vol.1) at 44.2.13 (p.1387)), and a rigid likelihood test......
-
English Court Litigation: Can You Still Benefit From Costs Protection If You Withdraw Your Part 36 Offer To Settle?
...important guidance on how this question will be approached by the courts. In Blackpool Borough Council v Volkerfitzpatrick Limited [2020] EWHC 2128 (TCC), the High Court considered the costs consequences of an 'extremely well judged' Part 36 offer once it had been withdrawn by the defendant......