Howden Joinery Ltd v Martin Brain
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilkie |
| Judgment Date | 20 October 2015 |
| Neutral Citation | [2015] EWHC 3999 (QB) |
| Docket Number | Case No: QB/2005/0096 |
| Date | 20 October 2015 |
| Court | Queen's Bench Division |
[2015] EWHC 3999 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr Justice Wilkie
Case No: QB/2005/0096
COUNSEL UNKNOWN
(As Approved)
Digital Transcript of WordWave International Ltd trading as DTI th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 704 1424 Web: Email: (Official Shorthand Writers to the Court)
This is an appeal brought by Howden Joinery Ltd against a preliminary decision made by Recorder Arbach sitting at the County Court at Oxford on 12 February 2015. They bring it with leave of the Recorder.
The order which the Recorder made was that, upon the defendant, Martin Brain, by his counsel undertaking to pay the appropriate part 20 claim fee, Howden Joinery Ltd be joined as a part 20 defendant in the action by the defendant, Martin Brain, the action having been brought by a Mr Boss, the claimant.
The Recorder made the order on two alternative bases, as he described it in paragraph 24 of his judgment, by exercising his power under either CPR rule 3.10 or CPR rule 19.2. The Recorder described the circumstances of the case as highly unusual and one hopes that they are, because, as Mr Langton very fairly and properly conceded, the history of the litigation does not do great credit to any of the parties or indeed the court officers involved, except I suppose for Mr Boss, the claimant.
Mr Boss issued his particulars of claim against Martin Brain trading as Building Services on 28 November 2012. It was a claim for breach of contract. Mr Brain had, it was alleged, by oral agreement supplemented by a written schedule of works dated September 2009 agreed to provide Building Services at Mr Boss' home in Banbury. The total price of those works were £106,000 odd plus VAT. Paragraph 4 of the particulars of claim identified within the schedule of works item 22, which was for the supply and fitting of wooden flooring to the ground floor of the property at a cost of £6,900 odd plus VAT. Mr Brain purported to have completed installation of the flooring in around April 2010 immediately after which it was said the floors became noisy and made loud crackling sounds when walked upon which has persisted. It was said that Mr Brain was in breach of the implied term that he would carry out the service will reasonable care and skill. Under the particulars of reasonable care and skill, a number of complaints were made about the way in which the flooring work had been undertaken, but it included, at paragraph 10.2:
"The defendant failed to take proper moisture readings from the sub floor before installation of the floor covering and/or installed the covering while moisture levels were too high."
And at 10.9:
"In so far as the floor covering itself was defective, as to which see paragraph 11 below, the defendant failed to exercise proper skill and judgment in selecting and installing flooring which was unsuitable for the purpose."
Paragraph 11 contends that the floor supplied by the defendant was not of satisfactory quality and was not fit for purpose.
Included amongst the particulars of defects were clause 11.1:
"The defendant supplied and fitted boards which were damp or whose moisture content was too high at point of installation to ensure a good fit."
The claimant claimed to have suffered loss and damage which totalled £8,150.63 and which included separate itemised amounts for the cost of replacing flooring materials, the cost of labour, the cost of skirting repair and decoration and skip hire and waste costs.
Mr Brain put in a short defence on 27 February 2013. It denied that he was liable to the claimant for the sum claimed or any part of it and he stated in paragraph 2 that he would, within seven days of the date of the defence, be making a request for further information under part 18 of the CPR and would file an amended fully pleaded defence if so advised within 14 days of replies to that request being received. In paragraph 3 of the defence he said:
"At the same time the amended defence is filed and served, the defendant will be making an application to join in Howden Joinery Ltd to this action as part 20 defendants."
In fact there was some delay in the prospective timetable foreshadowed in the defence of the defendant. I need not go into the detail of that. Suffice it to say that on 30 July 2013 District Judge Matthews considered the case file, in particular the statements of case and questionnaires filed and he allocated the case to the fast track, ordered that it be transferred to the Oxford County Court and gave the following directions:
"The defendant has permission to amend his defence and join Howden Joinery Ltd into proceedings as part 20 defendant. The defendant shall file and serve an amended defence by 6 August 2013."
Subsequent provision for directions hearings were also made.
Pursuant to the permission to amend, the defendant produced an amended defence dated 6 August 2013. Paragraph 1 said that the amended defence replaced the first defence of the defendant previously filed. Paragraph 2 is a general joinder of issue with each and every paragraph of the particulars of claim. There is then a series of paragraphs in which various paragraphs of the particulars of claim were admitted.
At paragraph 8, the amended defence reads as follows, with regard to paragraph 9 of the particulars of claim, which was the averment that immediately after installation the floors became noisy and made loud crackling sounds, when worked on, which persisted:
"It is denied that, if it is found to be the case that the floors became noisy and made loud crackling sounds when walked upon, this is attributed to any materials supplied directly by the defendant or any work carried out by him but is instead the responsibility of Howden Joinery Ltd, who provided all of the flooring that was installed by the defendant and which flooring the defendant avers was defective. The defendant avers that the said flooring was supplied by Howden Joinery Ltd to the defendant in the course of their business and was accordingly subject to implied terms that it would be of satisfactory quality and reasonably fit for the purpose for which it was supplied."
At paragraph 10.1, reference is made to a report of a Mr Bourne upon which the claimant places reliance. At paragraph 10.6 of the amended defence it reads as follows:
"The defendant repeats the averment at 10.1 above but further avers that the boards supplied by Messrs Howden Joinery Ltd to the defendant were damp and not in a satisfactory condition on delivery."
And the defendant relies on the report of Mr Philip J Cooper signed by the defendant, dated 21 June 2011 and in particular paragraphs 5 to 7 inclusive.
Then at paragraph 10.9:
"The defendant avers that if, which is denied, as aforesaid the flooring is defective, it is due entirely to defects present within the flooring when it was provided to the defendant by Messrs Howden Joinery Ltd and as such he is entitled to a full indemnity from Messrs Howdens Joinery Ltd in the event that he is found to have any liability to the claimant."
There is at paragraph 11 a further averment that the blame for the unsatisfactory nature of the floor covering was entirely the breach of contract of Howdens. There is further reference at paragraph 11.6 to Howdens being wholly to blame and reliance on the report of Mr Cooper. The pleading concludes in the following terms:
"And the defendant claims:
(1) full indemnity from Messrs Howden Joinery Ltd as a joint defendant to these proceedings for all or any of the loss pleaded at paragraphs 12.1 to 12.4 of the particulars of claim for which the court may find the defendant is liable."
The pleading then concludes with the usual statement, but it is of some importance in this case. It reads:
"The defendant believes the facts stated in this amended defence and part 20 counterclaim are true."
It is right to say that the pleading is not entitled "amended defence and part 20 counterclaim" but is simply entitled "amended defence", and Howdens Joinery Ltd are described as "second defendant".
On 7 August 2013, solicitors for the defendant wrote to Howdens Joinery Ltd referring to Mr Boss' claim against Mr Brain, complaining of flooring which was supplied to Mr Brain by Howdens, referring to the fact that the court has now given permission for Mr Brain to join Howden into the claim and to seek a full indemnity for any award of damages that might be made against him and they enclose a number of documents by way of service. They were: the copy claim form; the copy amended defence; the copy reply by Mr Boss to the request for further information; the copy order of Banbury County Court giving permission to join Howden into the proceedings; a copy report of Mr Cooper obtained by Mr Brain; and a copy of the report of Mr Bourne being relied on by the claimant, Mr Boss. They invited Howden to pass the documentation on to their solicitors.
It is to be observed that the one document which does not appear to be enclosed with that letter is any part 20 claim form and it is common ground that at no time up to and including 12 February did the defendant issue a part 20 claim form against Howden as defendant to that part 20 claim.
Notwithstanding that, on 6 September 2013, Howden submitted a document entitled "defence". It described Mr Brain as "defendant/part 20 claimant" and it described itself as "part 20 defendant". Thus it appears that the omission on the part of Mr Brain's solicitors to issue a part 20 claim and to serve it was also overlooked by solicitors for Howden.
The defence begins with a general averment in the following terms:
"The part 20 defendant responds by way of general defence to the claim...
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