D R Jones Yeovil Ltd v Drayton Beaumont Services Ltd
| Jurisdiction | England & Wales |
| Judge | Russen |
| Judgment Date | 19 July 2021 |
| Neutral Citation | [2021] EWHC 1971 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: D40BS957 |
[2021] EWHC 1971 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS & PROPERTY COURTS IN BRISTOL
TECHNOLOGY & CONSTRUCTION COURT (QBD)
Bristol Civil & Family Justice Centre
2 Redcliff Street
Bristol BS1 6GR
HH JUDGE Russen QC
(Sitting as a Judge of the High Court)
Case No: D40BS957
James Frampton (instructed by Reeves James Solicitors Ltd) for the Claimant
Peter Land (instructed by Beswicks Legal) for the Defendant
Hearing date: 11 June 2021
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.
HH JUDGE Russen QC
HHJ Russen QC:
INTRODUCTION
This is my judgment on a hard-fought application to re-amend the Particulars of Claim which was heard on 11 June 2021. Although they were not anticipated at the conclusion of the hearing, the parties' submissions were later supplemented by further written submissions, from Mr Frampton on behalf of the Claimant on 28 June and from Mr Land on behalf of the Defendant on 9 July 2021. Those supplemental submissions concerned the Mastercard basis of amendment addressed below. Mr Frampton offered the court some further submissions in response to Mr Land's argument that the court had no power to proceed on that basis, in the absence of the parties' consent. However, having clarified that he did not wish to rely upon any further authorities than those already cited, I thought it best to proceed with my analysis of them without a further round of submissions.
In these proceedings the Claimant (“ DRJ”) sues the Defendant (“ DBS”) in respect of works undertaken by DBS from late 2010 into 2011 on a property known at the time as Adderley Green Care Village, Stoke on Trent. The development comprised a collection of apartments with a care home. DRJ was the main contractor and engaged DBS under the Sub-Contract between them for mechanical services installations in what were known as Blocks A and B.
In late 2011 DRJ's employer under the main contract became insolvent. There were issues over payment and DBS suspended its works in December 2011. In around 2014 or 2015 a new employer (referred to as “ Badby”) was identified and in 2015 DRJ was engaged by that new employer both to bring works already carried out up to their original specification and to carry out further works at the site to convert it to a neurological unit.
DRJ commenced these proceedings against DBS on 18 April 2017 and they were served on 16 August 2017. DRJ alleged that DBS's works were defective and incomplete and that, in consequence, this caused loss and damage to DRJ in the form of the costs of remedial work, completion work, attendance on-site and management and supervision costs. DRJ also alleged it has also overpaid DBS by £8,072.21. An initial amendment to the Particulars of Claim added a claim to recover losses incurred by DRJ in connection with a failed adjudication by DBS in December 2017. The claim was put at £181,935 plus £7,275 (and any recoverable VAT element) in respect of the adjudication.
DBS's Defence and Counterclaim said that it had been entitled to suspend works on grounds of non-payment and admitted that its works were incomplete only in a few, relatively minor respects. It said that any further works that DRJ were required to carry out were the consequence of the later decision to convert the property to a neurological unit. In broad terms, DBS denies the defects and responsibility and alleges that it has been underpaid by DRJ. DBS counterclaims the sum of £35,112 (including interest) based upon the difference between the £978,639 which DRJ paid it and what is said to be the proper valuation of DBS's final account.
Following a Case Management Conference on 12 March 2018 the claim and counterclaim were listed for trial over 7 days commencing 18 March 2019. However, that trial did not take place because in January 2019 DRJ discovered that DBS had attended the property in late 2018, without DRJ's knowledge, to carry out attempted remedial works to the fire dampers it had earlier installed (“ the 2018 Works”). DRJ's response to the 2018 Works was to apply on 11 February 2019 to vacate the trial.
That application was heard by me on 1 March 2019 along with an application by DBS to re-amend its Defence and Counterclaim. I decided to vacate the trial, not least because DRJ's expert evidence had taken no account of the 2018 Works.
The Order which resulted from the hearing on 1 March 2019 was dated 5 April 2019. I gave permission for the re-amendment of the Defence and Counterclaim. So far as DRJ's contemplated amendment in the light of the 2018 Works was concerned, the Order provided that DRJ should prepare Re-Amended Particulars of Claim by 21 May 2019 for DBS's consideration. It directed that, in the event of any objection by DBS, DRJ should apply for permission to amend by 14 June 2019. As things turned out there were six subsequent consent orders which pushed that date back. The last one dated 19 February 2021 provided that, in the event of objection by DBS, DRJ should apply for permission no later than 23 March 2021.
Reverting to the Order dated 5 April 2019, Mr Frampton drew my attention to paragraph 12 in connection with DBS's present position in relation to the costs of the amendments by DRJ which it does not oppose in principle. It said: “ The costs of and occasioned by any amendments by the Claimant in Re-Amended Particulars of Claim shall, absent agreement between the parties, be reserved to the next case management conference (above).” Under the latest Order dated 19 February 2021 a CMC was to be listed on the first available date after 15 May 2021. The listing of one has obviously been held in abeyance pending the outcome of the present application.
By an Application Notice dated 23 March 2021 DRJ now seeks permission to re-amend its Particulars of Claim.
I mention the timing of the present application in the context of the proceedings to date because DBS's grounds of opposition to the disputed amendments include its contentions that the claims sought to be introduced by those amendments are now statute-barred, so that they cannot be permitted, and, alternatively, they are made too late, so that they should not be permitted.
The amendments now proposed are summarised by what is said in paragraph 4 of the draft Re-Amended Particulars of Claim (“ the RAPOC”): “ The Re-Amended Particulars of Claim reflect the remedial works carried out by DBS without [DRJ's] knowledge, as well as further claims raised against [DRJ] by the employer and the operator of the Site following those remedial works.”
DBS does in not principle oppose some of the proposed amendments, subject to an entitlement to costs which it says the court should address now (and not at a further CMC) by making an appropriate order in its favour. These amendments relate to the deletion of the claim for water damage in Block B (paragraph 70(2) of the RAPOC) and what DRJ says is an admission of its existing claim of defective workmanship in the form of DBS's purported remedial works to 65 fire dampers as part of the 2018 Works (paragraph 71A of the RAPOC).
The proposed amendments which DBS opposes appear in paragraphs 71B to 71D of the RAPOC and are said by DRJ to arise out of an exposure to liability to Badby. DRJ has denied liability to Badby but says, if established, any such liability and resulting damage which is referable to damper and pipework defects was caused by DBS's breaches of duty. Paragraph 71C mentions a letter from Badby's solicitors to DRJ's solicitors which refers to the incurred costs of investigation and remedial work and estimated future costs or remedial work (which involves cabling and conduits as well as dampers and pipework) in the total sum of £867,561.
That said, Mr Land says it is important to note that the Badby allegations which DRJ seeks to pass down to DBS relate only to the alleged requirement for the dampers to be triggered by smoke (as well as heat) and that there is no allegation by Badby arising from the method of fixing (frame versus direct fit) or the identity of the manufacturer of the dampers.
I will return below to the detail of the proposed amendments but in essence the new claims which DRJ seeks to introduce are:
(a) to allege that DBS is responsible for any design defects in the fire dampers raised by Badby (paragraph 71D(1)) (“ the Damper Design Claim”) and
(b) to allege that DBS is responsible for any lack of fire-stopping to the pipework raised by Badby and/or Elysium (paragraph 71D(2)) (“ the Pipework Fire-Stopping Claim”).
Against DBS's protest about the lateness of this amendment application DRJ says a fair wind is set behind the application by what I said in my judgment of 1 March 2019 when vacating the trial (at the hearing that day DRJ and DBS were represented by different counsel, Mr Owen for DRJ and Ms Adams for DBS).
In that judgment I referred to the 6th witness statement of Mr Reeves which dealt with what DRJ's representative had seen when inspecting the property in the light of the works undertaken by DBS in recent months. The witness statement had referred to DRJ's discovery that previously concealed pipes had not been fitted with fire collars when DRJ's expert (Mr Doherty) was of the view that DBS was obliged to fit them under the sub-contract. In the light of that evidence I said:
“ 37. That is some evidence to indicate that there may (I emphasise may) be cause for thinking...
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