Castle Trustee Ltd v Bombay Palace Restaurant Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Jefford DBE |
| Judgment Date | 06 July 2018 |
| Neutral Citation | [2018] EWHC 1602 (TCC) |
| Date | 06 July 2018 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2014-000177 |
[2018] EWHC 1602 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Jefford DBE
Case No: HT-2014-000177
Miss Chantal-Aimee Doerries QC and Mr Marc Lixenberg (instructed by Morgan LaRoche) for the Claimants
Mr Adrian Williamson QC and Mr Thomas Lazur (instructed by Glovers Solicitors LLP) for the Defendant
Hearing dates: 16 th – 19 th October & 23 rd – 26 th October & 8 th November 2017
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 HONOURABLE Mrs Justice Jefford DBE
Insert Judge title and name here:
Introduction
This case arises out of a project to refurbish and update property located at the corner of 2 Hyde Park Square (“2HPS”) and Connaught Street.
The freehold owners of the property are the Church Commissioners. The leaseholders of 2 HPS are Liberty Property Limited Partnership. The Fourth Claimant, Liberty Property (GP) Limited acted as “a general partner” of the Liberty Property Limited Partnership. Whilst I set out below how there come to be four Claimants in this action, little or nothing has turned on this. In this judgment, I shall refer to the principal party to the agreement set out below as “Liberty” and I draw no particular distinction amongst the Claimants. The property was an 8 storey building. The ground floor of the property, with an entrance at 50 Connaught Street and identified by that address, was and is occupied, pursuant to a lease from the Church Commissioners, by the Bombay Palace Restaurant (which operates though a company, the Defendant, which I shall refer to as “BP”). The upper storeys are principally residential apartments.
From about 2006, Liberty wished to carry out works to 2HPS which involved extensive works both internally and externally to redevelop the residential flats. In order to do so, they needed the co-operation of BP as the restaurant would not be able to operate for some or all of the time such works were being carried out, not least because the entrance would be closed. In short, a deal was done: BP would vacate the restaurant for a period of time and, in return, Liberty would carry out works to the restaurant which would refurbish and update the premises. An Agreement was entered into dated 8 April 2010 between BP and Liberty Property (GP) Limited (a company registered in the Isle of Man and the Fourth Claimant), called “Liberty” in the Agreement, and Liberty Nominees Ltd. (also registered in the Isle of Man and the Third Claimant).
The works to the restaurant were ultimately carried out between January and May 2012 and form the subject matter of the dispute that ultimately reached this Court.
The Claimants
All the Claimants are companies registered in the Isle of Man. It is pleaded that:
(i) on or around 3 September 2014, Liberty Property (GP) assigned to the First and Second Claimants the claim or claims it had arising out of the subject matter of the Particulars of Claim. Notice of that assignment was given to BP on or about 20 October 2014, alternatively 5 November 2014.
(ii) On or around 5 July 2014, the First and Second Claimants re-assigned back to the Fourth Claimant the claim or claims that had been assigned to them. Notice of the second assignment was given to BP on or about 5 July 2016.
There has been no explanation for these assignments and BP formally put in issue the validity of the assignments. The end result is that the Third and Fourth Defendants are entitled to make the claims in this action.
The Agreement
Before I turn to the dispute itself it is helpful to set out the relevant terms of the Agreement.
Clause 1 set out Definitions:
(i) ““Approved Plans” means the plans drawings and specification (“the Specification”) relating to the Restaurant Works (including as there are from time to time made any permitted or agreed variations alterations or additions to or revisions of the same) annexed as Annexure 1.”
(ii) ““Architect” means Hawkins Brown Limited …”
(iii) ““BP's representative” means Mr John Woodcock of …”
(iv) ““Building Contract” means such building contract as Liberty shall enter into with the Building Contractor for the carrying out of the Restaurant Works.”
[Liberty did enter into such a contract with Pochin Ltd. as contractor. This contract included what was described as an “undefined Provisional Sum” for the internal fit out of the Bombay Palace Restaurant. The provisional sum was £150,000.]
(v) ““Building Contractor” means such building contractor appointed by Liberty to act and employed in that capacity to carry out the Restaurant Works in accordance with the provisions of this agreement.”
(vi) ““Building Period” means the period during which the Restaurant Works are to be carried out as specified in a Restaurant Works Building Programme.”
(vii) ““Building Programme” means the programme for the carrying out of the Restaurant Works which is to be annexed to a Commencement Notice.
[Notice was given on 25 October 2011 and a Building Programme showing a 4 week duration for the Restaurant Works was annexed.]
(viii) ““Development” means the redevelopment of the Second Property for residential purposes”.
(ix) ““Development Works” means the works of carrying out the Development (including, for the avoidance of doubt, the Restaurant Works)”
(x) ““First Property” means the Property known as Number 50 Connaught Street London being the property registered under Title Number LN242668 at HM Land Registry”
(xi) ““Liberty's Representative” means the person from time to time being appointed to act as Liberty's Employer's Agent in connection with the Development Works”
(xii) ““Restaurant Works” means any works of enhancement refurbishment or redevelopment to be carried out to or on the First Property by Liberty in accordance with the Approved Plans.”
(xiii) ““Restaurant Works Completion Date” means the date upon which the Architect issues a sectional completion certificate pursuant to the Building Contract (“Sectional Certificate”) certifying that the Restaurant Works have been practically completed in accordance with the Building Contract.”
(xiv) “Second Property” means the property known as Number 2 Hyde Park Square London W2 being the property comprised in and demised by the Second Lease and registered at the Land Registry under title number NGL9047470”
Clause 3: LICENCE TO ENTER THE FIRST PROPERTY AND THE CONSERVATORY
“3.1 BP grants licence to Liberty and the Building Contractor and their agents servants and workmen including sub-contractors at all times to enter the First Property for the purposes of fulfilling Liberty's obligations hereunder with effect from the date which is specified in the Commencement Notice as being the date upon which Liberty requires such licence for the purposes of commencing and executing the Restaurant Works.”
Clause 5: THE APPROVED PLANS
“5.1 Restrictions on Variations
Liberty shall not make any material variation alteration or addition to or omission of anything from the Approved Plans nor permit the use of any materials in substitution for those specified in the Approved Plans without the consent of BP (which shall not be unreasonably withheld or delayed).
5.2 Permitted variations
Liberty may make variations without BP's consent so long as:
5.2.1 the variations are insubstantial or immaterial and of routine nature and do not alter the design or external appearance or standard of finish of the Restaurant Works do not alter the headroom of the First Property nor reduce its gross internal area nor alter or reconfigure any of the escape routes and/or are required to comply with any Requisite Consents which Requisite Consents have been approved by BP (such approval not to be unreasonably withheld or delayed).
Clause 6 was concerned with Requisite Consents to be applied for and obtained by Liberty. The Requisite Consents were defined as “those permissions, consents, approvals, licences, certificates and permits in legally effectual form as may be necessary lawfully to commence, carry out, maintain and complete the Restaurant Works”. These were to include, without limitation, planning permission and Building Regulations consents.
Clause 7: THE DEVELOPMENT WORKS AND COMPENSATION FOR DISRUPTION
(i) “7.1 The Development Period and Extensions of Time
7.1.1 On or before 31 October 2010, Liberty shall issue the Commencement Notice to BP if it intends to commence the Development Works and if such notice states that it does so intend then Liberty shall attach to such notice a programme for the carrying out of the Restaurant Works and the Development Works. The Restaurant Works must be commenced in January 2012 if a Commencement Notice is served.
7.1.3 In the event that the Commencement Notice specifies that Liberty intends to commence the Development Works, Liberty shall use all reasonable endeavours to procure the commencement of the Restaurant Works in accordance with the relevant Building Programme and having commenced the Development Works shall use its best endeavours to complete the Development Works in accordance with the Building Programme
7.1.4 The Building Period specified in a Building Programme may be extended by such period as shall be certified by the Architect to be reasonable by reason of:-
7.1.4.1 any event which under a JCT form of Building Contract 2005 (with Contractors Design) would entitle the contractor under that contract to an extension of time
7.1.4.2 such other events or matters...
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