Briggs & Forrester Electrical Ltd v Southfield School for Girls and Another
| Jurisdiction | England & Wales |
| Judgment Date | 20 July 2005 |
| Neutral Citation | [2005] EWHC 1734 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 20 July 2005 |
[2005] EWHC 1734 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY & CONSTRUCTION COURT
His Honour Judge Peter Coulson Q.C.
APPEARANCES:
For the Applicant: MISS KATE GRANGE
For the Respondents: MR SIMON HARGREAVES
th July 2005
HIS HONOUR JUDGE COULSON QC:
Introduction.
This is an application by Briggs & Forrester Electrical Limited, whom I shall call the Applicant, for pre-action disclosure pursuant to CPR 31.16. The original application sought 55 separate categories of documents but this has been reduced by the Applicant's solicitor's letter of 5 July 2005 to 32 categories.
The application arises in this way. In 2003 the buildings at Southfield School for Girls in Kettering were the subject of extensive electrical works. The Applicant was engaged to carry out that work. Because asbestos tiles had to be removed to allow the electrical works to be carried out, a specialist removal contractor, B&W Asbestos Removal Specialists Limited, who I shall call "B&W", were engaged to act as the Applicant's sub-contractors. The work was overseen by an architect, Peter Haddon & Partners.
There is no dispute on the documents that I have seen that this work of tile removal was badly carried out. As a result, the Respondents to this application (who are the prospective Claimants in any litigation, namely the governors of the school and the relevant education authority) allege that there was extensive asbestos contamination of the school buildings, which had to be evacuated in consequence. Thereafter extensive remedial works were carried out.
The Protocol Procedure
On 15 October 2004 the Respondents sent to the Architect, the Applicant and B&W a detailed letter of claim. This was sent in accordance with the Construction and Engineering pre-action protocol. The letter of claim, in a form similar to a pleading, set out a detailed claim for about £5 million damages arising from the asbestos contamination.
The Applicant responded in detail on 4 February 2005. The response included an admission of liability couched in these terms:
"6. Since the work done by B&W was not satisfactory, and caused some asbestos pollution and contamination to the school, it is inevitable that B&F will be held liable for breach of contract to the school. B&F had a contractual obligation to carry out their work in a good and workmanlike manner, and it is clear that they, through B&W, did not do so".
The letter also complained of the difficulties in making an offer to the school and the Council due to their alleged failure "… to quantify the losses claimed by reason of B&F's breaches of contract, as opposed to the losses brought about by the state of the building".
On the same day, the Applicant's solicitors wrote a separate letter enclosing a document entitled "Pre-action disclosure required by Second Defendant from Claimant". This list was essentially the same as the list that was attached to the Applicant's original application for pre-action disclosure dated 12 April 2005, and it also forms the basis of the reduced list upon which the application was made before me.
The Respondents replied to the letter of response on 15 June. They dealt, amongst other things, with the suggestion made by the Applicant that the school was already the subject of contamination before their work commenced; and they also addressed the Applicant's second main point, namely that the remedial work related to the state of the building rather than the breaches of contract. In particular, at Paragraph 13 of that response, the Respondents said:
"It is not accepted that the school was contaminated by asbestos prior to the breaches of contract on the part of your client. Your letter contains no evidence to that effect. If you do have such evidence, then it should be disclosed, please. Failing that, we shall be forced to conclude that your remarks are pure speculation. Indeed it is apparent that much of your pre-action disclosure request is calculated to provide fuel for this speculation".
The next stage in the Construction and Engineering protocol procedure would be a pre-action meeting. Indeed the Construction and Engineering protocol is the only one of all the CPR protocols which requires such a meeting. If the procedure outlined in the protocol and the subsequent meeting fail to bring about a resolution of the differences between the parties, then they are required by Paragraph 5.5 of the protocol to use their best endeavours to agree various matters. At sub-paragraph (ii) one of those matters is "the extent of disclosure of documents with a view to saving costs". That is, as far as I am aware, the only specific reference to disclosure in the Construction and Engineering protocol. In relation to this case I am told that, whilst of course, the letter of claim and the response letter stages have both been completed, there has as yet been no pre-action meeting.
Relevant principles
Before turning to the detail of the application, it is necessary to set out some of the relevant principles. I deal first with CPR 31.16. The relevant parts provide as follows:
"1. This rule applies when an application is made to the Court under any Act for disclosure before proceedings have started.
2. The application must be supported by evidence.
3. The Court may make an order under this rule only where
(a) the respondent is likely to be a party to subsequent proceedings,
(b) the applicant is also likely to be a party to those proceedings,
(c) if proceedings had started, the respondent's duty by way of standard disclosure—set out in Rule 31.6—would extend to the documents or classes of documents of which the applicant seeks disclosure, and
(d) disclosure before proceedings have started is desirable in order to: (i) dispose fairly of the anticipated proceedings, (ii) assist the dispute to be resolved without proceedings, or (iii) save costs".
The principal authority dealing with this Rule is the decision of the Court of Appeal in Black & Others v Sumitomo Corporation [2002] 1 WLR 1562. In his Judgment, Rix LJ went through the rule and explained that an applicant had broadly to do two things: first, to demonstrate that each of the four elements of 31.16 (3) were in place; secondly, to persuade the Court that it was appropriate in all the circumstances for the Court to exercise its discretion in favour of granting pre-action disclosure.
The four requirements of Rule 31.16(3) in this case, therefore are: (a) that the Applicant was likely to be a party to subsequent proceedings; (b) that the Respondents were likely to be a party to subsequent proceedings; (c) that the documents sought would be disclosable in proceedings by way of standard disclosure, and (d) that pre-action disclosure was desirable.
As to the standard disclosure point at (c), Rix LJ said:
"76: In general, however, it should in my judgment be remembered that the extent of standard disclosure cannot easily be discerned without clarity as to the issues which would arise once pleadings in the prospective litigation had been formulated. This Court touched on the question in Bermuda International Securities v KPMG [2001] Lloyd's Rep. PN 392 397, Paragraph 26, when Waller LJ there said that
'The circumstances spelt out by the rules show that it will only be ordered where the Court could say that the documents asked for will be documents that will have to be produced at the standard disclosure stage. It follows from that that the Court must be clear what the issues in the litigation are likely to be, i.e. what case the claimant is likely to be making, and what defence is likely to be being run, so as to make sure the documents being asked for are ones which will adversely affect the case of one side or the other, or support the case of one side or the other.'
77: It also seems to me to follow that if there would be considerable doubt as to whether the disclosure stage would ever be reached, that is a matter which the Court can and should take into account as a matter of its discretion."
As to the question of the desirability of ordering pre-action disclosure at (d), Rix LJ said:
"81: It is plain not only that the test of 'desirable' is one that easily merges into an exercise of discretion, but that the test of 'dispose fairly' does so too. In the circumstances it seems to me that it is necessary not to confuse the jurisdictional and the discretionary aspects of the paragraph as a whole. In Bermuda International Securities, Waller LJ contemplated that Paragraph 3(d) may involve a two-stage process. I think that is correct. In my judgment, for jurisdictional purposes the Court is only permitted to consider the granting of pre-action disclosure where there is a real prospect in principle of such an order being fair to the parties if litigation is commenced, or of assisting the parties to avoid litigation, or of saving costs in any event. If there is such a real prospect, then the Court should go on to consider the question of discretion, which has to be considered on all the facts and not merely in principle but in detail.
82 Of course, since the questions of principle and of detail can merge into one another, it is not easy to keep the two stages of the process separate. Nor is it perhaps vital to do so provided however, that the Court is aware of a need for both stages to be carried out. The danger, however, is that a Court may be misled by the ease with which the jurisdictional threshold can be passed, into thinking that it has thereby decided the question of...
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