J & B Hopkins Ltd v A&v Building Solution Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Roger Ter Haar |
| Judgment Date | 15 February 2023 |
| Neutral Citation | [2023] EWHC 301 (TCC) |
| Docket Number | Case No: HT-2022-000444 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2023] EWHC 301 (TCC)
Mr Roger Ter Haar KC
Sitting as a Deputy High Court Judge
Case No: HT-2022-000444
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Royal Courts of Justice
Rolls Building
London, EC4A 1NL
James Frampton (instructed by Hawkswell Kilvington) for the Claimant
Alex Paduraru (a director of the Defendant Company) for the Defendant
Hearing date: 19 January 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Wednesday 15 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
Mr Roger Ter Haar KC:
This is a claim for enforcement of an Adjudication Decision issued by Mr. Don Smith, FRICS, DipArb, FCIArb.
Representation
The hearing before me was a virtual hearing conducted over Microsoft Teams.
The Claimant (“J&BH”) was represented by Mr James Frampton, a member of the English Bar.
The Defendant (“A&V”) was not represented by counsel or a solicitor. Before the hearing I received a skeleton argument signed by Mr. Alex Paduraru who described himself in that document as “Litigant in Person”.
As I understand the position, Mr. Paduraru is a director and shareholder in A&V. At the hearing before me he was accompanied by Mr. Judd, who is a surveyor, but not an officer of, or shareholder in, A&V.
I was told that the skeleton argument to which I have referred was drafted by Paduraru and Mr. Judd together.
It rapidly became apparent that Mr. Paduraru would find it difficult to make the somewhat complex arguments which A&V wished to put before me in resisting this enforcement claim.
Mr. Frampton, for J&BH, drew my attention to the helpful guidance in the judgment of Hildyard J. in Bank St Petersburg v Arkhangelsky (No. 2) 1 at paragraphs [73] to [76]:
“73. After I had completed most of this judgment in draft, I received from the Claimants' Counsel a Note I had requested on a further issue which arose in the course of the hearing as to the Court's power to grant a right of audience on an ad hoc basis to a party's McKenzie friend when that party is a body corporate rather than an individual acting in person.
“74. Though no authority has been found, that Note (for which I am very grateful) helpfully sets out the applicable framework as regards McKenzie friends. It suggests the conclusion that, given that CPR 39.6 does now allow an employee of a body corporate duly authorised to do so by it to appear at trial on its behalf with the permission of the Court, the Court does have jurisdiction to allow a body corporate the assistance of a McKenzie friend, and in appropriate (and exceptional) circumstances to allow that McKenzie friend a right of audience on an ad hoc basis. The Note also identifies a case where it appears that the Court assumed that to be so:
namely, Tracto Teknik GmbH v LKL International [2003] EWHC 1563 (Ch);“75. I agree that the Court has such jurisdiction, as part of its power (in the absence of specific restriction) to regulate its own proceedings and, in circumstances where otherwise the body corporate would have no-one capable of speaking for it, to prevent a failure in the administration of justice (and see also A.L.I. Finance Ltd v Havelet Ltd [1992] 1 WLR 455 at 460–461). I agree further that the Legal Services Act 2007 at Schedule 3 assumes and recognises such jurisdiction (as did its predecessor, the Courts and Legal Services Act 1990) even if it does not expressly confer it. Thirdly, I consider that since the jurisdiction is inherent, neither Rule 39.6 nor Practice Direction 39A is an exclusive and complete code, so that the Court may give permission in exceptional cases even where neither that rule nor the Practice Direction (which prescribes the form of the evidence of authority which must be provided where a company or corporation is to be represented by an employee) has been complied with.
“76. In that latter context the Note provided to me very properly referred me to two cases in the Court of Appeal which might be read as having assumed the contrary (that is, that CPR 39.6 and PD 39A provide a complete code): see Watson v Bluemoor Properties Ltd [2003] BCC 382 (particularly paragraphs 7 and 11–15) and Avinue Ltd v Sunrule Ltd [2004] 1 WLR 634 (particularly at paragraph 25). However, it does not seem to me that in either case the issue whether the Court retains jurisdiction in exceptional circumstances to permit someone other than a director or employee to represent a body corporate was directly addressed. I note that it does not appear that the A.L.I. Finance case was cited in either of the two cases. In my view, there is nothing in either of those cases which binds me to hold that the jurisdiction of the Court, as propounded in the A.L.I. Finance case at a time before the CPR, has been restricted by rules intended to introduce, not less but greater, flexibility. I also consider that it is unlikely that the jurisdiction should be so limited in the case of a body corporate, but unconfined in the case of a litigant who is an individual.”
In the event, I permitted Mr. Judd to make A&V's submissions, as I considered this to be in the interests of justice. This he did in a careful, measured and helpful way.
The Adjudication
On 11 June 2022 A&V started the adjudication out of which the Decision which J&BH seeks to enforce arises.
The Adjudication arose out of a Sub-Contract under which A&V, as Subcontractor, undertook to carry out plumbing installation works at Mouslecoomb University campus.
In the Referral A&V alleged that J&BH was in breach of the Sub-Contract in a number of respects. The principal contractual provisions relied upon by A&V were as follows:
Clause 7.4: If in the opinion of the Contractor, the Sub-Contract works are failing to progress in line with the Contract Programme requirements, then after due notice of 7 days being given, and if resultant actions are not undertaken, it shall be J & B Hopkins's prerogative to supplement the onsite labour requirements for the Sub-Contractor recovering all resultant costs as a deduction from the Sub-Contractor account.
Clause 8.1: J & B Hopkins may instruct a variation to the Sub-Contractor's access date to the Site as may be set out in the Agreement by giving notice in writing to the Sub-Contractor at any time up to 5 business days prior to such date. The Sub-Contractor shall not be entitled to an increase in the Sub-Contract Sum and/or loss and expense as a result of or in connection with such variation.
Clause 8.2: J & B Hopkins may, at any time prior to Principal Practical Completion, by notice in writing require the Sub-Contractor to carry out a variation to the Sub-Contract Works. Notwithstanding anything to the contrary elsewhere in this Sub-Contract, no variation to the Sub-Contract Works shall be made necessary by reason of negligence, omission or default of the Sub-Contractor, its servants, agents and suppliers and in such event the Sub-Contractor shall not be entitled to any increase in the Sub-Contract Sum or any extension of time to the Completion Date.
Clause 8.3: The Sub-Contractor shall implement a variation immediately upon receiving notice of the same and the Sub-Contractor shall provide a quotation for the variation to J & B Hopkins within five days from receipt of the notice. A failure by the Sub-Contractor to provide a quotation pursuant to this clause and/or if such quotation is not agreed the Sub-Contractor shall not be excused from implementing the variation and in such event the Sub-Contractor shall be paid a fair and reasonable price for the variation.
Clause 8.4: The Sub-Contractor's quotation shall comprise the following:
(1) The value of the adjustment to the Sub-Contract Sum for performing the additional work supported by all necessary calculations for reference, where relevant, to the quantified schedule of rates in support of the Sub-Contractor's tender and including, where appropriate, allowance for any adjustment of preliminary items;
(2) Any adjustment to the period specified in the Sub-Contract Order and/or the Agreement and/or an agreed programme for the completion of the Sub-Contract Works to the extent that such adjustment is not included in any other extension of time which has been granted to the Sub-Contractor, or included in any other quotation accepted by J & B Hopkins in accordance with this Clause 8.0;
(3) The value of the adjustment to the Sub-Contract Sum for any delay and/or disruption likely to be caused to the regular progress and/or completion of the Sub-Contract Works by reason of the instruction to carry out the additional work;
(4) The method of carrying out the additional work; and
(5) Any other information required by J & B Hopkins.
Clause 8.5: Within 7 days of J & B Hopkins receipt of the Sub-Contractor's quotation, J & B Hopkins shall by written notice to the Sub-Contractor state whether it accepts the Sub-Contractor's quotation. The acceptance by J & B Hopkins of any quotation provided by the Sub-Contractor in accordance with Clause 8.0 shall be in full and final settlement of the matters and process contained in the Sub-Contractor's quotation and the Sub-Contractor shall not be entitled to any further change to the Sub-Contract Sum and/or any further extension of time to the Completion Date other than as set out in the quotation accepted by J & B Hopkins.
Clause 8.6: If J & B Hopkins does not accept the Sub-Contractor's quotation, J & B Hopkins shall by written notice to the Sub-Contractor either direct that the additional work shall be performed (which, after completion of the same by the Sub-Contractor, shall be measured and...
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