Hall v Heiden
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Coulson |
| Judgment Date | 15 March 2010 |
| Neutral Citation | [2010] EWHC 537 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 15 March 2010 |
| Docket Number | Case No: HT-09–302 |
[2010] EWHC 537 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Before: The Honourable Mr Justice Coulson
Case No: HT-09–302
Mr George Woods (instructed by Streathers Solicitors LLP) for the Claimants
The Defendant was neither represented nor in attendance
Hearing date: 15 th March 2010
The Honourable Mr Justice Coulson:
This is a building claim brought by the employers for damages for breach of contract which, as we shall see, has been complicated by the conduct of the defendant contractor. The claim is modest by the standards of the TCC, being for just over £100,000, although there is a counterclaim of just over £50,000. This is the first day of the trial.
The case has thus far been managed by HHJ Toulmin CMG QC. That process has been made more onerous, and doubtless more expensive, by the defendant's failure to provide a cogent defence to the claim, or to comply with the orders of the judge. His most recent order was dated 26 th February 2010. That required various steps to be taken by way of final preparation for the trial. The defendant has played no part in those final preparations, despite the fact that this trial date was fixed as long ago as 2 nd October 2009.
On Friday 5 th March, the defendant apparently sacked his legal team. No explanation for that has been given and, as far as I am aware, no application has been made by his solicitors to come off the record.
On the afternoon of Wednesday 10 th March, the claimants' solicitors received a one-line e-mail from the defendant to say that he had authorised Rod Jones of Glaister Jones to act on his behalf. The claimants' solicitors then made repeated efforts to contact Mr Jones both that afternoon and all day Thursday 11 th March. Although those efforts were made both by telephone and by e-mail, they met with no success. The claimants' solicitors' researches showed that Mr Jones is an insolvency practitioner.
At 9.30 on the morning of Friday, 12 th March, the last working day before the trial, Mr Jones sent the claimants solicitors a fax in the following terms:
“Mr van Der Heiden has applied for an Interim Order under section 252 of the Insolvency Act 1986 to give him protection from his creditors and to assist him into promoting an Individual Voluntary Arrangement as an alternative to Bankruptcy.
The effect of an interim order is set out in section 252 of the Insolvency Act 1986 as follows:
a) no bankruptcy petition relating to the debtor may be presented or proceeded with…
b) no other proceedings, and no execution or other legal process, may be commenced or continued and no distress may be levied against the debtor or his property except with the leave of the court.
The Claimants have been notified of Mr Van Der Heiden's application for an Interim Order.
I expect the Interim Order to be made this morning and shall advise you as soon as that is the case”.
I note that this fax:
a) Did not say to which court the application had been made
b) Did not enclose the application itself, or the supporting affidavit, or any of the other documents required by such an application
c) Was the very first indication that the claimants solicitors had received that the defendant was or might be insolvent;
d) Was erroneous in suggesting that the claimants had been notified of the application.
Accordingly the claimants solicitors responded by return in these terms:
“Please would you explain as a matter of urgency:
1. Who Mr Van Der Heiden's creditors are?
2. What are the amounts of each debt to each creditor?
3. To which court has the section 252 application been made and on what date?
4. Why has the section 252 application not been served on us
Please supply us with a copy of the application without delay
It is obviously unsatisfactory for Mr Van Der Heiden to make such an application on the eve of trial. If he was in genuine financial difficulties then properly supported information should have been supplied promptly as soon as it was known.
For the moment the High Court trial should proceed. Mr Van Der Heiden should attend. We will be bringing this to the attention of the trial judge in the meantime”.
Mr Jones did not answer those valid questions. Instead on Friday afternoon he sent another fax saying that the Interim Order had been granted in Swindon County Court. He went on to say: “it follows from this that if the claimants wish to continue with their application against Mr Van Der Heiden despite the Interim Order being in force they must apply to the Swindon County Court which is the court that made the Interim Order. The claimants have been notified of the Interim Order and advised that this Court has been notified”.
The last sentence makes little sense and was in any event untrue. No copy of the alleged order has been provided to the claimants or their solicitors, and neither Mr Jones nor the defendant are present at court today to assist on any of these matters.
Accordingly this morning Mr Woods, on behalf of the claimants, seeks my permission pursuant to section 252 of the Insolvency Act 1986 to continue with the trial. It seems to me that the claimants have an overwhelmingly strong case on the merits of that application. The trial has been fixed for 5 months. The claimants have incurred considerable costs in order to comply with the judge's earlier orders and to be ready for this trial. The defendant and Mr Jones have been notified not only of the trial but also of the claimants' determination to continue therewith. I am told that the costs do or may outweigh the sums at stake, and that an adjournment at this late stage would be financially disastrous for the claimants.
Moreover, it must be said that the conduct of both the defendant and Mr Jones has been at best cynical, and at worst, wholly unacceptable. I refer in particular to the last minute raising (for the first time) of the defendant's potential insolvency; the lack of any information about the defendant's financial position; the failure to provide any of the documents that were apparently provided to Swindon County Court; and the difficulties of ensuring any proper contact with Mr Jones. These all point inexorably towards this being a manipulative, last-minute,...
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