Cunningham v Collett & Farmer
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Peter Coulson QC |
| Judgment Date | 13 July 2006 |
| Neutral Citation | [2006] EWHC 1771 (TCC),[2006] EWHC 148 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Claim No: HT-0468,Case No: HT-04-68 |
| Date | 13 July 2006 |
[2006] EWHC 148 (TCC)
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT
QUEEN'S BENCH DIVISION
St Dunstan's House
133137 Fetter Lane
London, EC4A 1HD
His Honour Judge Peter Coulson Qc
Claim No: HT-0468
A. INTRODUCTION
The Claimants are the owners of Bengeo Hall, in Hertfordshire. During 2002 and 2003 they engaged contractors to carry out refurbishment works at the property. The Defendant was appointed as their architect. The Claimants were unhappy with various aspects of the works and apparently terminated the relevant contracts, including that of the Defendant. They subsequently became embroiled in various pieces of litigation arising out of these events. In an adjudication, the Defendant was found to be entitled to £12,000 odd by way of unpaid fees, and that prompted this claim by the Claimants for professional negligence. The maximum pleaded value of the claim may be as much as £500,000 (not least amongst the difficulties in this case is the inadequacy of the Claimants' pleadings) but much of this appears to be for damages due to the delay that occurred after the Claimants had terminated the engagements of both the contractor and the Defendant. In my judgment of 16 June 2005, I commented that the causation of this vital part of the Claimants' case was unhappily pleaded. It has never been amended. Thus the true value of the claim against the Defendant may be considerably less then the sums currently claimed.
The history of this litigation has been unhappy in the extreme. As set out in Section B below, I take the view that the First Claimant is principally responsible for these problems. The trial was adjourned in 2004 and, again at the Claimants' request, in June 2005. A third application was made by the Claimants' then solicitors, McFaddens, on 16 September 2005, to adjourn the trial fixed for the following month. At the hearing of the application, on 23 September 2005, various unless orders were made against the Claimants. The Claimants failed to comply with those orders. Thereafter, having changed both his solicitors and counsel, the First Claimant sought to revoke the unless orders of 23 September 2005 on the grounds that the application to adjourn made on his behalf on 16 September 2005 should never have been made.
There was a hearing on 13 October, and eventually, on 29 November 2005, it was agreed that the unless orders of 23 September 2005 would be revoked. It was also agreed that the Claimant's former solicitors McFaddens, would pay:
a) the Claimants' costs of and occasioned by the application made by McFaddens on 16 September 2005, including the costs of the applications made to revoke the orders made in consequence of that application, in particular the application of 20 October 2005;
b) the Defendant's costs of and occasioned by the application dated 20 October 2005.
It was agreed that, following the exchange of written material between the parties, I was summarily to assess those costs.
The parties exchanged various documents in respect of the costs which are claimed. These included the Schedules of Costs from the Defendant (6.12.05) and the Claimants (7.12.05); McFaddens' written responses to those Schedules; the replies from the Claimants and the Defendant dated 19.12.05, including the Claimants' amended Schedules; and the letter from McFaddens' solicitors of 22.12.05. In that letter, the solicitors acting for McFaddens have complained, not without some justification, that the amount of material now provided to the court is much more appropriate to a detailed assessment of costs, rather than the sort of summary assessment usually carried out by the court.
When I came to address the summary assessment, it seemed to me that McFaddens were suggesting (at least implicitly) that the costs which they were being asked to pay were disproportionate. That was not something which the other parties had addressed. Accordingly, in order to save yet further costs, I produced a 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.
which contained some preliminary views on the issue of disproportionality, and I invited comments on them. This, unfortunately, led to a further tranche of written submissions from both the Claimants and the Defendant, dated 8 February 2006. I have, of course, had regard to all that additional material, even though it strayed beyond well beyond the specific points which I asked the parties to address. Where appropriate, I deal below with particular matters raised by the Claimants and the Defendant in these latest submissions.
This latest exchange has only served to confirm my conclusion that, in the light of all the detailed material with which I have been provided, and the views which I have formed as the assigned judge pursuant to CPR 44.4 and 44.5, it remains appropriate for the costs to be summarily assessed, as agreed on 29 November 200I have approached that task in this way:
a) I have set out the relevant facts in Section B below;
b) I have set out the relevant principles in Section C below;
c) I have set out my general conclusions as to proportionality in Section D below, expressly dealing with the important points raised by the parties in their documents of 8th February 2006;
d) I have undertaken the Summary Assessment at Section E below;
e) I have set out my conclusions at Section F below.
B. THE RELEVANT FACTS
The case management of this claim was originally undertaken by His Honour Judge Seymour QC. The trial was originally fixed for October 2004 but was adjourned because of the Claimants' failure to comply with the orders of the court. It was refixed for late June 2005. At a PTR on 27 May 2005, the Judge was minded to strike out the Claimants' claims as a result of their woeful non-compliance with various orders. However, Mr Mort, who has throughout appeared on behalf of the Defendant, sensibly persuaded the Judge that, in all the circumstances, it was appropriate to make various orders requiring the Claimants to take a variety of steps in the proceedings within a very short time, with the sanction of a default judgment if they did not comply.
The matter came before me on 7 June 2005. I made various orders so as to allow the trial of the action to take place later that month. By that stage, the Claimants had changed solicitors, and were now instructing McFaddens. The Claimant's counsel at that hearing, Mr Platford, had been involved throughout. On that occasion, there was no application by the Claimants to adjourn the trial.
However, just over a week later, on 16 June, there was an urgent application by the Claimants for an adjournment of the imminent trial. Because of the urgency, I rearranged my diary to hear the application that same day. The application was put solely on the grounds of the mental state of the First Claimant. I was provided with a report from a consultant psychiatrist, Dr Lewis Clein, which concluded that the First Claimant "is in no fit state to face a nine day trial". At the hearing, Mr Mort vigorously opposed the application to adjourn. In all the circumstances, I concluded that an adjournment was appropriate, given the First Claimant's mental state, but that this could only be for a short period. I made it clear that, whatever the state of the First Claimant's health, there would have to be a trial in the autumn in any event. The trial was therefore re-fixed for October 2005.
On 16 September 2005 the Claimant's solicitors, McFaddens, made a further application to adjourn the trial. Again, the grounds were related to the First Claimant's mental well-being. However, the basis of the application was somewhat unusual. Mr Platford, who appeared before me at the hearing of the application on 23 September 2005, argued that he and his instructing solicitor had reasonable grounds for thinking that the First Claimant might be a patient under the Mental Health Act. Accordingly, they wanted the trial to be adjourned so that that matter could be investigated and determined. Again, Mr Mort, on behalf of the Defendant, opposed the application to adjourn.
I had expressly ordered the First Claimant to appear in person at the hearing on 23 September 2005, in person. For reasons which, even now, are not at all clear, the First Claimant did not appear. I was told that he knew about the hearing, but had deliberately chosen to go the USA. Later, he disputed that, saying – despite the existence of an e.mail to the opposite effect – that he was unaware of the order requiring his attendance. On 23 September, I made a series of unless orders, centred round the need for the First Claimant to submit to an examination by an independent psychiatrist, so that the court could determine this new, and potentially serious, issue at a hearing which was fixed for 13 October 2005.
In the event, the First Claimant did not submit to that examination and did not comply with the unless orders. At some stage in late September/ early October, on the First Claimant's case, he discovered the basis on which the application to adjourn of 16 September 2005 had been made. He utterly refuted the suggestion that he was, and was even capable of being, a patient under the Mental Health Act. Indeed, he was able to point to a report of a Dr Boast of September 2005 – which, for reasons which were never explained, had not been shown to me at the hearing on 23 September – which made it plain that the First Claimant was not a patient under the Mental Health Act and, indeed, "is not suffering from a mental illness".
In these unusual circumstances, the Claimants...
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