Cameron Taylor Consulting Ltd v BDW Trading Ltd

Hearing Dates: 8 & 9 December 2021

Approved Judgment

INTRODUCTION

This appeal raises issues as to the application of CPR 17.4 and CPR 19.5 concerned, respectively, with amendments and the substitution of parties following the possible expiry of a relevant limitation period. The first part of the appeal concerns the approach which the court should take in circumstances where a claimant contends that the constraints to its pleaded claim which it proposes will allow for all the defendant's limitation arguments. The second part of the appeal concerns the nature and extent of the analysis that the court should undertake on an application to substitute one defendant company in the same group for another, where it is said that the original company was named by mistake.

I set out the factual background in Section 2. In Section 3, I summarise the judge's judgment. In Section 4, I identify the issues on appeal. In Section 5, I summarise the relevant law on amendments where a limitation point is raised, and in Section 6 I address the first part of the appeal. Then, in Section 7, I summarise the law on the substitution of parties and, in Section 8, I address the second part of the appeal. There is a short summary of my conclusions in Section 9. I am grateful to both leading counsel for their crisp written and oral submissions.

THE FACTUAL BACKGROUND

The claimant in the proceedings is BDW Trading Limited (“BDW”), part of the Barratt Group. They are the respondent to this appeal. The defendants are four different engineering companies, who are now all part of the AECOM group, but were not at the time of the relevant events. I note that the claim against AECOM Infrastructure & Environment UK Ltd (“AECOM”), the original defendant, has been abandoned. URS Corporation Ltd (“URS”) was joined subsequently to these proceedings as the second defendant, and no objection is now taken to its joinder. Thus, the only defendants who are appellants for the purposes of this appeal are Cameron Taylor Consulting Limited (“CTC”) and their sister company Cameron Taylor One Limited (“CT1”).

In August 2019, Barratt contacted AECOM as a result of a structural problem that they had discovered on a residential tower block in Croydon, on which AECOM had been engineers. Thereafter, there were various meetings and exchanges which led Barratt and their consultants to undertake further investigations into other developments where the original engineering design had been carried out by companies now in the AECOM Group, such as URS, CTC and CT1. It appears that, during the last part of 2019 and into 2020, there was a good deal of communication between Barratt and AECOM and their respective lawyers. However, since privilege is now claimed for the written exchanges that these events engendered, it is inappropriate to refer to them further. It appears that the principal project that was the subject of the further investigation was the Capital East Development in East London.

On 6 March 2020, BDW issued a claim form against AECOM (as sole defendant) in respect of the Capital East development.

On 17 March 2020 the claim form was amended to:

a) Add URS and CTC as additional defendants;

b) Add a claim against CTC in respect of two blocks at a development in Feltham, in West London;

c) Add a claim against URS in respect of a third development, Freemens Meadow.

The following day, 18 March 2020, the claim form was re-amended to add claims against CTC in respect of all the blocks in the Feltham development. So working back 15 years from that date (the period identified as the ‘longstop’ for limitation purposes in s.14B of the Limitation Act 1980, considered below), the relevant cut-off date for the purposes of the limitation arguments is 18 March 2005.

On 9 April 2020, the re-amended claim form was served on the three defendants.

On 23 April 2020, the defendants issued an application to disallow the amendments and re-amendments to the claim form pursuant to CPR 17.4 and/or CPR 19.5. As I have indicated, during the course of these applications, URS' objections have fallen away. That means that there is no objection to the additional claim in respect of Freemens Meadow, because that only concerns URS, and not CTC. So the live objecting appellants are CTC/CT1, and the only project in issue is the development at Feltham.

On 18 May 2020, CTC provided BDW with a copy of their contract in respect of the original works at Feltham, because BDW had made it plain that they did not have it. That contract named CT1 as engineers, not CTC.

A further complication was that this contract contained an arbitration clause. On 19 May 2020, BDW served a notice of arbitration on CT1. There was a good deal of correspondence between the solicitors about the arbitration clause which was relevant to one aspect of BDW's substitution application, going to discretion. However, that aspect of the debate, which the judge decided against CTC/CT1, is not resurrected as part of this appeal.

On 29 May 2020, BDW produced their Particulars of Claim (“PoC”). The PoC named only URS and CT1 as defendants, despite the fact that the substitution application had yet to be heard. Since what matters for the purposes of this appeal is the position of CTC/CT1 and the claims in respect of Feltham, I note the following relevant elements of the PoC:

a) The pleaded claim in respect of Feltham runs from paragraphs 42 to 45.

b) The claims are in respect of inadequacies in the structural design. General allegations are made, in relation to Blocks G1, G2, I, Q and L, about the various elements of the slabs and/or supporting elements and/or walls which, so it is said, were not designed in compliance with the relevant British Standard and/or the Building Regulations.

c) Some of the allegations of negligence are made by reference to CT1 drawings, but no dates for those drawings are given. Other allegations are not made by reference to any drawings at all.

d) The allegations of breach of duty at paragraph 47 are general. On their face they cover the entirety of structural designs carried out by CT1.

e) Similarly, the loss and damage in respect of Feltham, from paragraph 48.14 onwards, is also couched in generic terms. The loss claimed is the cost of investigation and remedial works at the Feltham site. It is not a claim made on a block-by-block basis.

Subsequently, BDW have indicated, in their reply to URS, and in the witness statement of their solicitor, Mr Adjetey, that they are prepared to limit their claim in respect of Feltham to CT1's structural drawings issued after 18 March 2005. That was referred to by Mr Hargreaves QC, on behalf of BDW, as “the constrained case”. Mr Hargreaves properly accepted that, as things currently stand, BDW's PoC does not reflect the constrained case.

On 9 June 2020, BDW issued an application to substitute CT1 for CTC pursuant to CPR 19.5(2). As Ms Parkin pointed out, the making of the application under that rule presupposed that the relevant limitation period had expired.

On 29 June 2020, BDW issued what is referred to in the papers as a “back up” claim form against CT1 in respect of Feltham, and URS in respect of Capital East and Freemens Meadow. There is no explanation as to why that had not happened earlier.

THE JUDGE'S JUDGMENT

On 25 September 2020, His Honour Judge Kramer (“the judge”) heard the first day of argument on the two applications, namely CTC's application to disallow the amendments of 17/18 March 2020, and BDW's application to substitute CT1 for CTC. The argument was not concluded on that day. The second day of argument took place on 16 October 2020.

At the end of that second day, the judge gave a lengthy ex tempore judgment. I am only too aware of the pressures on B&PC judges, and understand their laudable desire to deal summarily with as many cases as they can. But these were not straightforward applications (as evidenced by the fact that they had lasted two days, with both sides represented by leading counsel), and much might turn on the outcome. It may have been better if the judge had taken a little more time to consider his judgment.

The judge set out the facts and the relevant parts of the Limitation Act and the CPR. He made it plain at [35] that BDW's answer to CTC's limitation objection did not seek to raise the argument that the new claims were based on the same or substantially the same facts as the original claim. The judge said they clearly were not based on the same or substantially the same facts, and he was right to do so.

The first issue for the judge to decide, which was common to both applications, was whether it was arguable that the relevant limitation period had expired when the amendments and re-amendments were made on 17/18 March 2020: see [41]. The judge identified CTC's argument at [42] in the following terms:

“42 The defendants say it is. Their argument is that the drawings straggle [sic] the commencement of the 15-year longstop period and the claimant has yet to prove that the damage, which it claims it suffered and which is necessary to perfect the cause of action in negligence, was due to something which happened after or...