Charles Church Developments Ltd v Stent Foundations Ltd and Peter Dann Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 05 December 2006 |
| Neutral Citation | [2006] EWHC 3158 (TCC) |
| Docket Number | Claim No: HT-06–044 |
| Date | 2007 |
| Year | 2006 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2006] EWHC 3158 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
St. Dunstan's House
131–137 Fetter Lane
London EC4A 1HD
The Honourable Mr Justice Jackson
Claim No: HT-06–044
Mr David Friedman QC and Mr Benjamin Pilling (instructed by Nabarro Nathanson) appeared for the Claimant.
Mr David Sears QC (instructed by Berwin Leighton Paisner LLP) appeared for the first defendant.
Mr Richard Wilmot-Smith QC (instructed by Fishburns) appeared for the second defendant.
This judgment is in five parts, namely Part 1 – Introduction; Part 2 – The Facts; Part 3 – The Present Proceedings; Part 4 – The Law; Part 5 – Decision.
Part 1: Introduction
This is an application for permission to amend particulars of claim after expiry of the limitation period. The application raises an important point of law. It is common ground that whichever party loses should have permission to appeal to the Court of Appeal.
The claimant in these proceedings, and the applicant for permission to amend is Charles Church Developments Limited. I shall refer to this party as “Charles Church”. The first defendant in the action is Stent Foundations Limited, to whom I shall refer as “Stent”. The second defendant in the action is Peter Dann Limited, to whom I shall refer as “Dann”.
In relation to Charles Church's application to amend, Stent consents to some of the proposed amendments but opposes others. Dann consents to all of the amendments which are sought. In so far as the defendants consent to amendments, they do so on the usual terms as to costs. Thus, it can be seen that the contest on the present application lies between Charles Church and Stent.
Two other companies feature briefly in the narrative of events. Keltbray Limited, which is a demolition contractor, is referred to as “Keltbray”. Wates Construction Limited, which is a main contractor, is referred to as “Wates”. In the course of this judgment I shall refer to the Limitation Act 1980 as “the 1980 Act”. I shall refer to the Civil Procedure Rules 1998 (as amended) as “CPR”.
After these introductory remarks I must now turn to the facts.
Part 2: The Facts
Charles Church is the freehold owner of the property at 60 Vauxhall Bridge Road in London, which I shall refer to as “the property”. The property lies between 50 Vauxhall Bridge Road on one side and 70 Vauxhall Bridge Road on the other side.
Charles Church decided to demolish the existing building on the property and to construct a new building in its place. The new building was intended to comprise residential flats with underground car parking. The method of construction which was originally intended is described as follows in Charles Church's Particulars of claim:
“6. As originally designed the building was to be constructed so as to be structurally independent of Nos. 50 and 70; the main foundations were to incorporate large diameter bored piles below basement level; and a secant pile wall was to be installed around the perimeter of the underground car park structure.
7. The proposed method of constructions was a “bottom up” form of construction. This involved the installation of the perimeter secant pile wall to enclose the basement area; temporary propping of the tops of the secant pile wall; and excavation to the full depth of the basement. The lowest level concrete slab would then be cast, followed by the intermediate slab and supporting columns. The temporary props would then be replaced by the permanent concrete ground floor transition slab, which would support the superstructure above. This form of construction requires the excavated basement to be kept dry during construction, and requires the concrete basement slab and walls to be able to resist water penetration.”
Charles Church originally proceeded on the basis that it would engage Wates as main contractor. However, in or about May 2000 Charles Church assumed the role of main contractor. Charles Church engaged Stent as piling sub-contractor for the project on terms which were agreed on or about 18 th July 2000. Stent commenced work on site on or about 19 th July 2000.
Dann provided structural engineering services for Charles Church in relation o the project. The precise date when Dann was first engaged by Charles Church is a matter of controversy, but I do not need to venture into that controversy for present purposes.
Let me now turn to the history of events on site. The first activity was, of course, the demolition of the existing building. This task was carried out by Keltbray. After demolition works had been carried out, Stent commenced its piling operations for the main foundations. It is alleged that vibration from those piling works caused severe damage to the adjoining building at 50 Vauxhall Bridge Road and also to the party wall between the property and 50 Vauxhall Bridge Road. This incident is referred to as “the first incident”. Charles Church contends that the first incident generated the need for remedial works to 50 Vauxhall Bridge Road, and also caused delay to the project. Charles Church's claim in respect of the first incident is quantified at £777,458.00.
Let me now move on to the construction of the secant pile wall. Stent carried out the design and construction of the secant pile wall, making use of two drawings prepared by Dann, namely drawing no. 5159/PW/02, and drawing no. D5159/50. It is alleged that the construction works for the secant pile wall caused serious damage to the adjoining building at 50 Vauxhall Bridge Road and also to the party wall between the property and number 50. This incident is referred to as “the second incident”. Charles Church regards Dann as responsible for the second incident because of alleged deficiencies in the two drawings previously mentioned. For example, Charles Church asserts that Dann determined a position for the secant pile wall which was too close to the party wall.
Charles Church contends that the second incident caused more serious damage than the first incident. Temporary support was required for part of the building at 50 Vauxhall Bridge Road. Thereafter, substantial remedial works had to be carried out to number 50. In addition, the secant pile wall had to be re-designed. Also, the method of construction for the new basement of the property had to be changed from “bottom up” to “top down”. Charles Church contends that all these matters caused it to suffer a loss totalling £2,949,005.00.
It is common ground that following the second incident the secant wall had to be re-designed. The revised design comprised two sections of piled retaining wall, which used two types of low vibration piling methods.
In Autumn 2002 Wates returned to site and took over as main contractor. Wates began the operation of excavating the basement. As excavation proceeded, a number of water leaks occurred through the re-designed secant wall. This episode is referred to by the parties at “the third incident”.
Charles Church maintains that the third incident was caused by Stent's errors n designing and/or installing the re-designed secant wall. Charles Church maintains that it carried out remedial works to deal with the third incident. Charles Church contends that its total loss attributable to the third incident amounts to £4,292,007.00.
Charles Church was minded to recover its various losses against Stent and Dann. Unfortunately, Charles Church left matters until near the end of the limitation period. As a result, Charles Church did not have time to comply with the Pre-action Protocol. In the result, therefore, and without further ado, Charles Church commenced the present proceedings.
Part 3: The Present Proceedings
By a claim form issued in the Technology and Construction Court on 14 th February 2006 Charles Church claimed against Stent and Dann damages for negligence and breach of contract in relation to the three incidents. In its Particulars of claim filed on 2 nd June 2006 Charles Church alleged that the first and third incidents were caused by negligence and/or breaches of contract on the part of Stent, and that the second incident was caused by negligence and/or breaches of contract on the part of Dann.
On 5 th October 2006 both defendants served their defences. Dann in its defence maintained that the second incident was caused by matters for which Stent was responsible. The relevant paragraphs of Dann's defence read as follows:
“36. Paragraph 55 of the Particulars of Claim refers to Dann's drawing no. D5159/50 and was produced by Dann on 3 rd May 2000 for [Stent's] tender purposes. It is clearly marked as a “CONSTRUCTION” drawing. It is admitted that this drawing is different from Dann's earlier drawing but it is denied that such inconsistency is evidence of any want of care on the part of Dann. Further, Dann contends that the Claimant and/or Stent designed and installed the secant pile wall and that the Claimant employed its own surveyor (Jules Baroudi) and set out the secant wall in the position it chose. By its letter to Dann of 28 th July 2000, the Claimant issued Dann with revised co-ordinates for the secant wall. Had there been any ambiguity which required resolution or concern on the part of the Claimant or/or Stent as to the precise or proper position of the secant wall, then they or either of them as reasonably careful and competent Developers and Contractors could and should have asked Dann for clarification of its drawings. Neither did so. Paragraph 1.06 of the Piling Specification which...
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