Dunn v Glass Systems (UK) Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 11 July 2007 |
| Neutral Citation | [2007] EWHC B2 QB,[2007] EWHC 1881 (QB) |
| Date | 11 July 2007 |
| Court | Queen's Bench Division |
| Docket Number | CASE NO: 6NE13921 |
[2007] EWHC 1881 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
NEWCASTLE-UPON-TYNE DISTRICT REGISTRY
MERCANTILE COURT
His Honour Judge Behrens
CASE NO: 6NE13921
This is an application by Glass Systems (UK) Limited (“Glass Systems”) to strike out a Particulars of Claim filed by Stewart Dunn (“Mr Dunn”). It is brought on 4 grounds:
1. The Particulars of Claim are so prolix and unintelligible and oppressive as to constitute an abuse of the Court's process or are otherwise likely to obstruct the just disposal of the proceedings (“Basis 1”).
2. The Particulars of Claim disclose no reasonable grounds for bringing the claim and/or Mr Dunn has no real prospect of succeeding on the claim (“Basis 2”).
3. The Particulars of Claim fail to comply with the requirements of CPR r.16.4 and paragraph 7 to the Practice Direction to CPR Part 16 (“Basis 3”).
4. The Particulars of Claim contain material which is by its very nature privileged (“Basis 4”)
Mr Dunn does not accept that any of these grounds are valid. Indeed he contends that Glass Systems' conduct in this litigation is itself abusive. Thus shortly after the application was brought he brought his own application to strike out the application.
Representation
Mr Dunn has throughout the litigation represented himself. Glass Systems have been represented by Mr Thomas Grant and Mr Alec M c Cluskey instructed by Halliwells LLP of City Plaza, Pinfold Street, Sheffield. I hope that Mr M c Cluskey will forgive me if I refer only to Mr Grant in the course of this judgment. I am conscious that he has had significant input both into the skeleton argument and into the submissions that have been made on behalf of Glass Systems.
I have in fact been provided with a very detailed 53 page skeleton argument on behalf of Glass Systems and a further 128 page document from Mr Dunn. I am very grateful to all involved for the care and research which has gone into them.
Evidence
The application is supported by a witness statement dated 14 th March 2007 from Mr Inglis, the solicitor with day to day conduct of the claim on behalf of Glass Systems. On 29 th March 2007 Mr Dunn filed an application to strike out the application. That application together with the Particulars of Claim contain a statement of truth signed by Mr Dunn. On 25 th June 2007 Mr Dunn filed a further 128 page witness statement or skeleton argument in support of his submissions. He had previously lodged with the Court 6 bundles of documents (which were annotated)
The Facts
Background
Mr Dunn
Mr Dunn is a barrister. According to the entry on his web page current at the date of the contract
I have a diverse construction industry background which began in 1980 with training as a construction cost/quantity surveyor with a multi-national contractor based in Glasgow, Scotland. In the first few years I attended Glasgow College of Building and Printing, taking a Certificate in Building on a part-time/day release basis. Thereafter I studied Quantity Surveying at Napier College (now Napier University), Edinburgh (also on a day release basis). I graduated with commendation in 1988. In September 1988 I moved to Newcastle Upon Tyne, England to study law (again on a part-time basis) at Newcastle upon Tyne Polytechnic (now University of Northumbria at Newcastle). Whilst studying law I also practised as a construction claims consultant. I was called to the Bar in 1992 and from 1994 to 1998 I practised from home, in Newcastle Upon Tyne, England, specialising in construction law. Legal research in connection with The Law of Damages began during practice at the Bar in 1994. From 1999 to 2003 I was engaged in research and writing only. In 2003 I returned to practice at the Bar.
After the draft judgment was promulgated but before it was handed down Mr Dunn has amended his web page and it is now somewhat more concise.
He practices from Chambers in Regency Court, Jesmond Road, Newcastle upon Tyne. He has a clerk – Mrs Gillian Nemri. There are no other members of his Chambers.
Glass Systems
Glass Systems is a small family-run company employing 12 staff, which supplies Glass panelling to construction projects. Until December 2006 its 2 directors were Alan and Jackie Wallis, who are husband and wife. Mr and Mrs Wallis are the only shareholders in the company.
The dispute with Clestra
Mr Dunn was initially instructed by Glass in relation to a construction dispute which arose between Glass Systems and Clestra in relation to an office development in London. Clestra, a contractor on the development, sub-contracted to Glass Systems the installation of glass partitions in the development (“the Installation”). The agreed price for the partition works was initially £127,796.55 plus VAT. The project was delayed, and Clestra negotiated with Glass an additional fee of £14,400 plus VAT in return for the installation being completed more quickly than originally agreed.
Clestra complained that the finish of the partitions was sub-standard. Glass Systems stated that any defects in the finish of the partitions were caused by the working conditions imposed on it by Clestra, which rendered it impossible to obtain a clean and smear-free finish on the glass partitions.
The adjudication proceedings
In about April 2005, Clestra brought adjudication proceedings against Glass Systems in relation to the Installation (“the Adjudication”). Clestra sought payment of some £70,000 from Glass Systems in the Adjudication.
Mr Dunn was instructed on a public access basis to represent Glass Systems at the Adjudication under a written retainer dated 15 April 2005. This retainer was specific to the Adjudication and involved Mr Dunn charging £95 per hour.
At the Adjudication, Glass Systems was found to be liable for 40% of the overall defects. Glass was ordered to pay Clestra £9,748.80 plus costs, interest and VAT, amounting to £19,844.50 in total.
The enforcement proceedings
In July 1995 Clestra brought proceedings against Glass Systems to enforce the adjudicator's award, and sought summary judgment on its claim under CPR Part 24, relying on the adjudicator's decision.
Mr Dunn was again instructed by Glass Systems on a Public Access basis under a further written retainer to represent it at the summary judgment proceedings. This retainer, which is dated 21 July 2005, was specific to the Part 24 application and Mr Dunn again charged £95 per hour, though there was now introduced a contingency element: Glass Systems was again unsuccessful at those proceedings, at which Clestra succeeded in obtaining summary judgment against it, together with an order that Glass Systems pay its costs. The hearing took place on 26 July 2005.
Glass Systems has paid Mr Dunn's fees in relation to the Adjudication and summary judgment hearing in full, and these fees are not in issue in this Application.
The contemplated proceedings
Adjudication proceedings are employed in the construction industry to resolve cash flow issues, and do not constitute final determinations of legal liability in relation to disputes. Thus following the Adjudication, Glass Systems discussed with Mr Dunn the possibility of issuing proceedings against Clestra in relation to the underlying dispute (“the Proposed Proceedings”).
Mr Dunn was subsequently instructed on a Public Access basis to draft the Particulars of Claim in the Proposed Proceedings. There are disputes as to the terms of Mr Dunn's retainer. I shall return to these disputes when considering Basis 2 of the application.
Mr Dunn states that he started working on the Particulars of Claim on 2 August 2005 and, indeed, it is his case that from that day onwards he worked on this one case and no others. There are extensive e-mails between the parties in some of which Mr and Mrs Wallis expressed dissatisfaction with the delays that were occurring and the costs being incurred. In his submissions Mr Dunn distinguished between the body of the claim and the quantum of the claim. Work on the quantum commenced in October 2005.
Mr Dunn produced an ostensibly finalised draft Particulars of Claim, for comment, on 24 April 2006. This was more than 100 pages in length (not including Appendices), and purported to claim sums in excess of £3 Million from Clestra.
Mr Dunn has so far been paid some £35,000 for his work on drafting the Particulars of Claim. According to a revised schedule submitted for this hearing he contends that he has spent a total of 836.90 chargeable hours in drafting the Particulars of Claim in the Proposed Proceedings.
If this case proceeds to trial it may well be said that the time spent by Mr Dunn was excessive and that the work carried out by Mr Dunn was not carried out with proper professional skill and care. However Mr Grant very properly accepted that these were not allegations that could be made for the purpose of a strike out application.
With the possible exception of the small amount of work carried in June and July 2006, inter alia in regard to finalising the draft Particulars of Claim, Mr Dunn has received no further express instructions from Mr and Mrs Wallis to carry out any further work for them. He has, however spent significant further time in preparing documents that seek to justify the time taken to prepare the Particulars of Claim, criticise the conduct of Mr and Mrs Wallis, and in drafting the Particulars of Claim in these proceedings.
The claim
The claim was issued by Mr Dunn on 13 th December 2006. The claim form is commendably brief. The nature of the claim is said to be:
the failure to honour a fee agreement and cash flow agreement in respect of legal services. The Claimant is engaged to represent the Defendant in an...
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