Brickfield Properties Ltd v Newton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE CROSS |
| Judgment Date | 11 March 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0311-1 |
| Date | 11 March 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J0311-1
Lord Justice Sachs
Lord Justice Edmund Davies and
Lord Justice Cross
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Milmo - in Chambers)
Mr. RONALD BERNSTEIN, Q.C. and Mr. DEREK WOOD (instructed by Messrs. Grangewood, Allan & Co.) appeared on behalf of the Appellants (Plaintiffs).
Mr. ROBERT GATEHOUSE, Q.C. and Mr. HUMPHREY LLOYD (instructed by Messrs. Ince & Co.) appeared on behalf of the Respondent (Defendant).
These two appeals are from orders made on the 21st December, 1970, by Mr. Justice Milmo striking out certain allegations in the respective Statements of Claim in two parallel actions. Both orders were made under the provisions of Order 18 Rule 19, on the grounds that the allegations in the Statements of Claim, dated the 11th November, 1969, extended the claims made in the writs, both issued on the 11th July, 1969, in a way that rendered the defendant unable, as regards the allegations struck out, to take such advantages of the Statute of Limitations as may have accrued to him in the four months which elapsed between the issue of the writs and the delivery of the Statements of Claim.
The relevant facts relating to the two actions are so similar that it is sufficient to state those touching the claim of Brickfield Properties Limited - a member of the Freshwater Group of Companies. That plaintiff company was the owner of certain land situate in Ruislip Road, Ealing. It decided to erect on that land six buildings comprising 165 flats in all. In 1962, it asked the defendant, a chartered architect, to prepare the requisite plans, specifications and forms of tender, and generally to be the Architect named in the R.I.B.A. contract for the work. It is, of course, common ground that he was bound to exercise reasonable skill and care in designing the buildings and superintending the execution of the work.
Erection of the buildings commenced in February, 1964, and we have been informed that there was completion of the work in early 1966. No final certificate, however, was issued, and on the 9th March, 1966, the defendant ceased to act as Architect to the plaintiffs.
(So far as the second action is concerned the plaintiffs were Rosebell Holdings Limited - another member of the FreshwaterGroup. Their property was in Southall and the only material distinction between the two cases is that the work in that case commenced in January, 1963, and was in practice completed in October, 1964).
By, at any rate, April, 1966, hot disputes had arisen as to the buildings and we have been asked to assume that those disputes were the same in relation to each of the sites. The correspondence before us relates to the second action and accordingly the following facts are taken from its contents. By the 1st April, 1966, the plaintiffs had ordered an independent firm of architects to report on the alleged defects in the buildings. That report was sent to the defendant's solicitors on the 13th June, 1966. It is not before us, but from the letters of June and July, 1966, passing between the respective solicitors to the parties, it is perfectly plain that allegations were being made by the plaintiffs of defective design as well as faulty execution of work under the supervision of the defendant.
By mid-July, and probably earlier, the building contractors had joined the fray in a big way. As regards the Southall buildings, they were claiming £54,794 against the plaintiffs - who were claiming over against the defendant.
The contractors had put in an itemised claim of which it is only necessary to quote two items:
"17. Lack of drawings, bill of quantities, variations order, etc….£2,835. 15s.1d.
"18. Unusual and untried forms of construction….£8,926. 3s.4d".
In support of their claims they had put in a memorandum from which it is sufficient to quote short extracts:
"17. Lack of drawings, bill of quantities, variations order, etc., due to the fact that the architect did not issue"various orders and fully revised drawings throughout the duration of the contract and by virtue of the consequent confusion that arose….
"18. New and untried methods of construction were involved. These methods which were known by the architect included floating floors, experimental heating systems, etc…."
The memorandum went on as regards both items to recite the adverse results of the facts which they had set out and to make what were regarded as appropriate claims.
The correspondence between the respective solicitors for the plaintiffs and the defendant in the actions now under consideration dragged on through two or three years - negligence being alleged on one side and denied on the other. Nothing could be more obvious than that the architect, the defendant, was being blamed both for the design of the buildings and for the way in which he had superintended their erection.
Litigation, however, did not start until the 11th July, 1969, when the writs were issued and were followed by the Statements of Claim of the 11th November. Both the writs and the Statements of Claim were copied verbatim from precedents in Atkin's Court Forms (2nd Edition) Vol. 8. The relevant forms were No. 62 and No. 63, which were clearly intended to be used in conjunction. The former is headed "General endorsement of claim by employer against architect for damages for negligence and breach of duty", and the latter, "Statement of Claim by employer against architect for negligence and breach of duty". The writ accordingly reads:
"The Plaintiffs' claim is for damages for negligence and breach of duty by the Defendant as an architect employed by the Plaintiffs in supervising the building of six blocks of flats containing 165 flats situate in Ruislip Road, Ealing, in the county of Greater London".
The Statement of Claim was similarly faithfully copied from Form No. 63 by a member of the Bar who has not been appearing before us in this appeal. It is unnecessary to read out the standard paragraphs reciting the retainer of the defendant by the plaintiffs, the acceptance by the defendant of the retainer, and the work which he was employed to do and which he purported to do. When one comes to paragraph 5 (in words taken straight from Atkin's Forms) one finds it reads as follows:
"5. It was an implied term of the Defendant's employment to render professional services that the Defendant would so design and superintend the erection of the buildings that they would be suitable for their purpose…."
One next turns to paragraph 8, which (still following the words of the Form) as far as relevant reads:
"8. The Defendant was guilty of negligence and breach of duty to and contract with the Plaintiffs. Particulars of Negligence and/or Breach of Duty: ….(2) The Defendant so negligently designed the buildings and superintended the setting out and/or erection that the same were defective in that…": and then there follow particulars of the defects relied upon.
The dispute that has raged in these proceedings relates to the inclusion of the words underlined above concerning the "design" of the building. The point taken for the defendant is that negligence in design is a different and an anterior cause of action to negligence in superintending. It was the words relating to what can conveniently be called the design claim that were struck out. In essence it was the case for the defendant that the insertion of the design claim was an extension of the claim made in the writ which contravened the provisions of the Rules of the Supreme Court in that it included a new cause of action anterior to that raised in the writ.
After the Statements of Claim had been delivered, no further steps in the actions have been brought to our notice as having occurred before the 11th February, 1970. On that date the Defences were delivered and requests were made for further and better particulars.
Paragraph 7 of the Defence read: "Further or alternatively the Defendant relies on the provisions of the Limitation Act, 1939, in respect of any cause of action alleged in the Statement of Claim that arose more than six years before the issue of the writ herein, in particular the allegations of negligent design (but the Defendant by so contending does not admit that the Plaintiffs are entitled to make such claims or allegations by the Rules of the Supreme Court)".
At the same time counsel for the defendant wrote to counsel who had signed the Statement of Claim a letter intimating the intention of the defendant to apply to strike out those allegations in paragraph 8 (2) with which we are concerned to-day. Sometime elapsed (on which nothing turns) and in due course a summons was issued on behalf of the defendant under Order 18 Rule 19, to strike out parts of the Statement of Claim.
It is not necessary to trace the sequence of hearings that led up to the order of the 21st December, 1970: mention should, however, be made of the fact that the plaintiffs issued applications to amend the writs in a way which would include the design claim and that these applications failed.
Those being the essential facts, I now turn to the salient questions that arise as to the interpretation of Order 18 Rule 15 (2), Order 2 Rules 1 and 2, Order 18 Rule 19, and Order 20 Rules 5 (1) and (5), and as to the exercise of such discretion as exists under the Rules named. In each case I approach the question on the footing, which appears correct, that despiteprecedents No. 62 and No. 63 in Atkin's Forms, a claim against an architect for negligence in the design of a building raises a different cause of action to that of negligence in supervising its erection in purported compliance with that design. That was an assumption that Mr. Bernstein...
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