Boxwood Leisure Ltd v Gleeson Construction Services Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell DBE,Mrs Justice O'Farrell |
| Judgment Date | 19 April 2021 |
| Neutral Citation | [2021] EWHC 947 (TCC) |
| Date | 19 April 2021 |
| Docket Number | Case No: HT-2020-000111 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2021] EWHC 947 (TCC)
Mrs Justice O'Farrell DBE
Case No: HT-2020-000111
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, EC4Y 1NL
Martin Bowdery QC (instructed by Ashfords LLP) for the Claimant
Tom Owen (instructed by Systech Law) for the Defendants
Hearing date: 27 th November 2020
Further notes by email: 18 th December 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 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.
The matter before the court is an application by the claimant (“Boxwood”) for relief that would render valid the late service of its claim form. The application is opposed by the defendants (“Gleeson”).
The issues raised are:
i) whether the court's power to grant relief is limited to an extension of time for service of the claim form pursuant to CPR 7.6;
ii) whether the court has power to grant relief from sanctions pursuant to CPR 3.9;
iii) whether the court has power to rectify the failure to serve the claim form pursuant to CPR 3.10 or its general case management powers in CPR 3.1(2)(m);
iv) whether the court has power to vary the Order dated 7 April 2020 so as to extend time for service of the claim form; and
v) whether the court should exercise any such discretion in favour of Boxwood.
Background facts
On 8 July 2003 Boxwood and the first defendant (“GCSL”) entered into a contract executed as a deed whereby GCSL agreed to carry out the design and construction of three indoor leisure centres on sites at Erith, Crook Log and Sidcup.
The second defendant (“MJG”) undertook to guarantee GCSL's performance under the contract by a deed dated 8 July 2003.
On 23 March 2006 Boxwood, GCSL and MJG entered into a deed of variation to the contract.
The works were completed by about March 2008.
On 24 March 2020, Boxwood commenced these proceedings, seeking damages against both defendants for breach of contract and/or negligence and/or against MJG in respect of the guarantee.
Boxwood's case is that the design and/or construction of the leisure centre at Sidcup was defective, resulting in water ingress, deterioration of the external fabric of the building and inadequate fire protection measures. It claims damages in the sum of £683,212.66 in respect of the estimated cost of remedial works.
On 24 March 2020 Boxwood issued an application for directions pursuant to paragraph 12 of the TCC pre-action protocol and/or for an order under CPR 7.6, including an extension of the period for service of the claim form and particulars of claim until 2 April 2021.
The application was opposed by Gleeson, who sought an order that the claim form be served by 16 April 2020, the particulars of claim by 4 June 2020 and a stay thereafter to allow the parties to comply with the pre-action protocol.
The parties submitted witness statements, setting out the history of the dispute and their respective arguments.
Order dated 7 April 2020
On 7 April 2020 the court made the following order:
“UPON READING the application of the Claimant dated 24 March 2020
AND UPON reading the witness statements of Mathilda Traill dated 24 March 2020 and 6 April 2020 respectively
AND UPON reading the witness statements of Neil Hunter dated 2 April 2020 and 6 April 2020 respectively
IT IS ORDERED THAT:
1. The period for service of the Claim Form and Particulars of Claim is extended until 10 September 2020.
2. The proceedings shall be stayed from 13 September 2020 to 10 December 2020 to allow time for the parties to comply with the Pre-Action Protocol for Construction and Engineering Disputes.
3. The Defence shall be served by 17 December 2020.
4. Costs of the application are costs in the case.
5. Liberty to apply.
REASONS
(1) The Court has the benefit of witness statements from both parties and this matter can be dealt with on paper to avoid the time and costs of a remote hearing.
(2) The Claimant is entitled to an extension of time for service of the Claim Form and Particulars of Claim, having regard to the difficulties caused by the COVID-19 crisis. The Defendants' suggestion that the Claimant's expert should flout the Government directions to “stay at home unless necessary” is unrealistic.
(3) However, the claims are very old and the Defendants are entitled to expect the Claimant to identify, as quickly as reasonably practicable, the allegations made so that the Defendants understand the case against them and can seek to pass on any claims if so advised. The extended date for service will enable the Claimant to carry out any further investigations by its expert and provide a properly pleaded case.
(4) It is noted that the Defendants have issued protective proceedings against sub-contractors and other potential parties. It is a matter for the Defendant to seek any extensions of time if necessary for it to advance those claims.”
There was no appeal against the order and no application to vary the terms was made under the liberty to apply provision.
On 8 September 2020 a trainee solicitor at Ashfords, solicitors acting for Boxwood, sent a letter by email to Systech, solicitors acting for Gleeson, stating:
“We hereby enclose, by way of service upon you, the Claimant's Particulars of Claim and Response Pack in respect of the above matter.
We also enclose our client's Initial Disclosure List in accordance with paragraph 5 of Practice Direction 51U. An electronic copy of the Initial Disclosure is provided with the emailed version of this letter …”
Attached to the email were the particulars of claim, acknowledgement of service forms and initial disclosure. The documents sent to Systech did not include the claim form.
On 14 September 2020 Ashfords appreciated that the claim form had not been served and sent a further letter by email to Systech, stating:
“Without prejudice to our prior service of the Particulars of Claim in respect of this matter on 8 September 2020, we hereby enclose, by way of service upon you, the Claimant's Claim Form along with the Particulars of Claim, Response Pack and our client's Initial Disclosure List …”
The attachments to the email included the claim form.
On 17 September 2020 Systech sent a reply by email to Ashfords, stating:
“We refer to your emails of 8 and 14 September 2020. The Claim Form was not served by 10 September 2020, as ordered by O'Farrell J. No application to extend the time for compliance under CPR r.7.6(3) has been made. The purported proceedings are therefore a nullity.”
The application
On 23 September 2020 Boxwood issued this application, seeking an order that:
i) pursuant to CPR 3.9, 1.2 and 3.1(2)(m), Boxwood be granted relief from its failure to comply with the order dated 7 April 2020 and its failure to serve its claim form by 10 September 2020;
ii) pursuant to CPR 3.10, 1.2 and 3.1(2)(m) the Court should exercise its general power to rectify an error of procedure being Boxwood's failure to comply with the order dated 7 April 2020; and
iii) the order dated 7 April 2020 at paragraph 1 be varied such that the claim form served on 14 September 2020 can be regarded as having been properly served.
The court has had the benefit of the following witness statements:
i) four witness statements made by Mathilda Traill of Ashfords LLP, dated 24 March 2020, 6 April 2020, 23 September 2020 and 22 November 2020 respectively;
ii) three witness statements made by Neil Hunter, a consultant solicitor at Systech Solicitors, dated 2 April 2020, 6 April 2020 and 23 September 2020 respectively.
The circumstances in which Boxwood failed to serve the claim form by 10 September 2020 were explained in the third witness statement of Ms Traill:
“13. On 8 September 2020, a trainee solicitor in our department served the Particulars of Claim by email (timed at 15.38) and by first class post at the [Systech Solicitors' address]. …
14. Regrettably, however, we omitted to serve the Claim Form. The Particulars of Claim were returned to us on 14 September 2020 with the following label on the envelope indicating “addressee gone away”…
15. I then looked to see which address we had used to serve the Claim Form and realised that we had not served it.
16. Typically, during ‘normal’ working times (by which I mean pre Covid-19 lockdown restrictions), we receive Orders in hard copy from the Court even if the case is being conducted via CE-File (although this is not always consistent). These hard copies are given to the matter partner who will then ensure that the relevant dates and actions are entered, with appropriate timed reminders, into a key dates diary that is accessible to the whole team. Extracts from this collective diary are circulated to the whole team on a weekly basis and in advance of deadlines. The same diary entries are usually replicated in the individual diaries of the fee earners involved in the specific matter so that nothing is missed. In this case, given that everyone was in lockdown, we only received the Order electronically (albeit some district registries were still issuing hard copy orders). Unfortunately, it was not added to everyone's diaries in the way that it normally would have been. The relevant dates were only added to my diary, and during the week of service, I was away on annual leave. Normally this...
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