Devon and Cornwall Autistic Community Trust v The Cornwall Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis |
| Judgment Date | 24 February 2015 |
| Neutral Citation | [2015] EWHC 403 (QB) |
| Docket Number | Case No: HQ12X02958 |
| Court | Queen's Bench Division |
| Date | 24 February 2015 |
[2015] EWHC 403 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice William Davis
Case No: HQ12X02958
Mr E Pepperall QC and Mr H Spooner (instructed by 2 nd Opinion Now) for the Claimant
Mr J Ramsden (instructed by Cornwall Council) for the Defendant
Hearing dates: 18 & 19 February 2015
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.
This is a claim for damages for breach of contract; alternatively restitution of benefit received. I shall set out the detail of the claim and the history of the proceedings hereafter. The case is listed for a five-day trial. It was due to commence yesterday (18 th February 2015). It did not do so because the Defendant has made an application to strike out the Claimant's statement of case pursuant to Part 3.4 of the CPR and/or to give summary judgment against the Claimant pursuant to Part 24.2 of the CPR. This is my judgment on that application.
The Claimant provides care and residential accommodation to adults with autistic disorders ("service users") in Cornwall and other parts of the West Country. The Defendant (and its predecessor) has a statutory duty to provide care and accommodation for disabled people within the county of Cornwall. That duty extends to those with autistic disorders. The Claimant is one of many suppliers in Cornwall used by the Defendant to fulfil its duty. The Defendant pays a fee to any supplier of such care and accommodation by reference to the needs of and care provided to each individual service user.
This claim concerns the alleged underfunding by the Defendant of services provided by the Claimant to eight named service users. The underfunding is alleged to have occurred at least from 2006 onwards. The Claimant's case appears to be that there was underfunding prior to that date but, since proceedings were not commenced until 2012, that any earlier shortfall is statute barred. The underfunding is said to have occurred in this way. Each service user was the subject of a contractual arrangement between the Claimant and the Defendant whereby the Claimant agreed to provide the necessary care and accommodation. The agreement did not stipulate the amount of money to be paid in respect of such provision. Thus, the Claimant was entitled to be paid a reasonable price for the services provided. In fact, the Defendant did not pay a reasonable price but some lesser figure.
The proceedings were issued in July 2012. Particulars of Claim were served in November 2012. The claim at that point had three strands. First, there was a claim in respect of underfunding the eight named service users in respect of the period from 2006 to 2008 in the sum of £319,626.36. Second, there was a like claim for the period from 2008 onwards in the sum of £1,549,107.74. Third, there was a claim for underpayment in relation to a quite separate group of service users in the sum of £216,867.11. A Defence was served but the Defendant also applied to strike out the claim under Part 3.4(2) of the CPR. On the 17 th December 2013 this application came before Senior Master Leslie. The application was adjourned on the basis that the Claimant would serve Amended Particulars of Claim by the end of January 2014. The Defendant was given seven days from the date of service of the amended pleading to notify the Claimant whether it consented to the amendment. The order of Senior Master Leslie stipulated that the amended pleading had to identify each relevant service user, the dates and nature of the service provided by the Claimant in each case, the alleged need of the service user in each case, the amount claimed and the basis of the liability alleged.
The Amended Particulars of Claim were duly served. Although they were not wholly dissimilar to the original pleading, the amended pleading was drafted so as to replace the original pleading in its entirety. Whatever the similarity in terms of the alleged cause of action, the amended pleading was very different in terms of the amounts claimed. The claim in relation to the separate group of service users was not pursued at all. In relation to the eight named service users the sum claimed in relation to the period up to 2008 was reduced to £231,855.80 and in relation to the period from 2008 onwards the sum was very substantially reduced. Rather than a figure in excess of £1.5 million, the sum claimed was £549,850.10. The Defendant consented to the amendment and an Amended Defence was served. However, there were requests for further information followed by a further hearing on the 1 st August 2014 before Senior Master Leslie. The Defendant contended that the amended pleading did not meet the requirements of particularity previously specified by Senior Master Leslie. At that hearing an order (paragraph 4) was made requiring the Claimant to file and serve particulars of its case (in relation to one of the service users – PB1) in the categories then agreed by the parties. Those categories were set out in a schedule to the order. The particulars related to the weekly shortfall as alleged and five types of particulars were set out in tabular form. These were: the additional services provided by the Claimant to PB1 including references to evidence in support; the cost to the Claimant of providing those additional services with references to supporting evidence; the cost to the Claimant of providing existing services to PB1 with references to supporting evidence; what assessed needs of PB1 were met by the additional services with references to supporting evidence; the date on which those additional services were provided.
The need for those particulars arose in part from the way in which the case was pleaded, namely that the needs of the service users had been reassessed in 2008 which meant that the shortfall in funding became much more substantial from that point onwards. In any event the particulars requested would have provided the Defendant with a clear understanding of the Claimant's case of alleged underfunding prior to 2008. The particulars in relation to PB1 were ordered to be served by the 17 October 2014. In relation to the other service users the order (paragraph 6) was: "Any schedule of particulars relied on by the Claimant (other than for PB1) is to be filed and served by 19 December 2014". This part of the order did not refer specifically to the schedule to the order which set out the five types of particulars to be addressed.
The timetable was extended by consent on the 13 November 2014. When the particulars in relation to PB1 were served by the Claimant is not clear on the material I have. However, they were served and the Defendant (as had been required by the order of Senior Master Leslie) responded with a counter schedule. The material set out in the particulars as served by the Claimant did not, according the Defendant, deal fully with the matters required by the order of the court. That was set out in the counter-schedule. However, the material did appear to be consistent with the financial claim as put in the Amended Particulars of Claim.
On the 12 December 2014 the parties were due by reference to the order of Senior Master Leslie (as extended) to serve witness statements. The Claimant did not do so. As a result the Defendant made an application for an order that the Claimant should not be permitted to rely on any witness evidence. The Claimant in turn applied for relief from sanctions, for additional time to prepare and serve witness statements and for an adjournment of the trial. The applications were heard on the 16 January 2015 by Mr Justice Green. In due course he handed down a judgment with particular reference to the Claimant's applications: see [2015] EWHC 129 (QB). I do not propose to set out any part of that judgment herein. However, it forms an important part of the backdrop to the application under consideration now. In particular, I adopt the analysis of Mr Justice Green at paragraph 21 et seq of his judgment in relation to the relevance and impact of a change in legal representation in respect of relief from sanctions. As is clear from that judgment, those who now represent the Claimant have done so only since about the middle of December 2014.
Mr Justice Green refused the application to adjourn the trial; rather he fixed the trial for the 18 February 2015. He required service of the Claimant's witness statements by the close of business on the 2 February 2015 failing which the Claimant was to be debarred from relying on witness evidence at trial. He made an order in relation to particulars other than those already served in relation to PB1. It was in these terms: "The Claimant do provide the particulars it relies upon (other than for PB1) by filing and serving schedules containing such particulars by 4 p.m. on 2 February 2015".
Witness statements and schedules were served on the 2 February 2015. The witness statements did not descend to any particularity in the body of the statements as to the cost of additional services or existing services or as to how the need for any such services arose. The schedules as produced by Neil Harris, by now the Claimant's finance manager, were not in the same form as the schedule produced previously in relation to PB1. They did not set out the particulars as specified in the schedule to the order of Senior Master Leslie. They referred to sums far in excess of the pleaded case. Indeed, the sums set out in the schedules were close to those pleaded in the original Particulars of Claim. The Defendant considered the served...
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