Jenni Glover & Littleton Glover v Fluid Structural Engineers & Technical Designers Ltd
| Jurisdiction | England & Wales |
| Judge | Stephen Davies |
| Judgment Date | 15 December 2023 |
| Neutral Citation | [2023] EWHC 3219 (TCC) |
| Year | 2023 |
| Court | King's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2023-000113 |
[2023] EWHC 3219 (TCC)
HIS HONOUR JUDGE Stephen Davies sitting as a High Court Judge
Case No: HT-2023-000113
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Rolls Building, London
Mek Mesfin (instructed by Penningtons Manches Cooper LLP) for the Claimants
Helena White (instructed by Beale & Company Solicitors LLP) for the Defendant
Hearing date: 1 December 2023
Supplemental submissions 7 and 8 December 2023
APPROVED JUDGMENT
Remote hand-down: This judgment was handed down remotely at 10am on 15 December 2023 by circulation to the parties or their representatives by email and by release to The National Archives.
I direct that pursuant to CPR PD 39A paragraph 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.
His Honour Judge Stephen Davies
Contents
| The application | paragraphs 1 – 10 |
| The parties | paragraphs 11 – 13 |
| Chronology | paragraphs 14 – 24 |
| The respective arguments summarised | paragraphs 25 – 28 |
| Liability for the costs claim | paragraphs 29 – 58 |
| Liability for the repayment claim | paragraphs 59 – 88 |
| Conclusion | paragraph 89 |
The application
This is my judgment on the defendant's application for strike-out or summary judgment on the claimants' claim, which has been extremely well argued before me on 1 December 2023 by counsel for the applicant defendant, Ms Helena White, and by counsel for the respondent claimants, Mr Mek Mesfin.
In short, it is said by the defendant that neither of the claims advanced by the claimants can succeed as a matter of law and, hence, should be struck out or dismissed summarily rather than be allowed to go to trial.
I have been referred to well-known authorities as to the proper ambit of and approach to such applications. The following principles are common ground.
A court may strike out a claim where, amongst other things, the statement of case discloses no reasonable grounds for bringing or defending the claim (CPR r3.4(2)(a)).
A court may give summary judgment where: (a) the claimant has no real prospect of succeeding on the claim or issue (CPR r24.2(a)(i)); and (b) there is no other compelling reason why the case or issue should be disposed of at a trial (CPR r24.2(b)).
Where applications are made to strike out under CPR r.3.4(2)(a) as disclosing “no reasonable grounds” for bringing the claim and, in the alternative, for summary judgment, there is no difference between the tests to be applied: see Hamida Begum v Maran (UK) Limited [2021] EWCA Civ 326, per Coulson LJ at paragraphs 20–21.
Proper grounds for strike out under CPR r 3.4(2)(a) and for summary judgment exist where the facts of the case, do not, even if true, amount in law to a defence to the claim.
“If the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better”: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725
However, it is generally not appropriate to strike out a claim on assumed facts in an area of developing jurisprudence: see Begum (above), per Coulson LJ at paragraphs 23–24, citing the House of Lords in Barrett v Enfield DC [2001] 2 AC 550, per Lord Browne-Wilkinson at pp. 557e-g and the Supreme Court in Vedanta Resources PLC & Another v Lungowe & Others [2019] UKSC 20, per Lord Briggs at paragraph 48.
Proper grounds for summary judgment include that, as contended here, on current evidence a claim has no realistic prospects of success and there is no additional evidence that can reasonably be expected to be available at trial (including any oral testimony) that is likely to add to or alter the evidence that will be available to a trial judge and so affect the outcome of the case.
However, the court should not conduct a mini-trial on disputed evidence: see Begum (above) per Coulson LJ at paragraph 22, citing Swain v Hillman [2001] 1 All E.R. 91.
The parties
The claimants are the residential owners and occupiers of 124 Westbourne Grove, London, W11 2RR (“the property”). They wished to undertake extensive works to refurbish and extend the property, including the construction of a new basement underneath the property, construction of a full loft space at roof level and complete internal reconfiguration (the “project” and the “works”).
The defendant (“Fluid”) is a firm of structural engineers. The claimants appointed Fluid as structural engineer, under a written appointment dated 3 December 2013 (the “appointment”), which incorporated the terms of the Association of Consulting Engineers (ACE) Agreement 1 (Design) 2009 and under which Fluid agreed to provide various structural and civil engineering services to the claimants in respect of the project.
The claimants employed a main contractor (Chase) to undertake the works under a JCT standard form of building contract. They also appointed architects to provide architectural and contract administration services in relation to the design and administration of the works.
Chronology
This is an abbreviated summary, given the basis of the application and the need to avoid the temptation of being drawn into the detail of factual disputes. I shall refer to the relevant contractual terms at a later stage of the judgment where they are of particular importance.
The works commenced in September 2016. During the works, damage and cracking was caused to the property and adjoining properties at 122, 126 and 128 Westbourne Grove (the “neighbouring properties”). The cracking led to the works being paused and recommenced on a few occasions. Fluid undertook a number of inspections and produced a number of reports in relation to the extent of any movement and the progress of the works. The works should have been completed by February 2018, but were not. In June 2019, Fluid produced a report which contained, as Fluid admit, an incorrect statement as to the way in which the works had been undertaken and what Chase should have, but did not, do. In July 2019, Chase's employment was terminated and, shortly afterwards, it went into liquidation. The claimants appointed another contractor to complete the works which were completed on 6 May 2021. The claimants have incurred costs in that respect and have also faced claims made by the owners of the neighbouring properties which they are seeking to direct at insurers.
As early as December 2019, the claimants issued a protective Claim Form against Fluid and various other parties, namely Chase and four insurance companies, including one which provided non-negligent damage insurance cover to the claimants and Chase (formerly known as XL Catlin and now known as Axa XL — “XL”), and another being Chase's insurers (“Chubb”).
The proceedings were stayed on a number of occasions. Eventually, after the proceedings were served, they were only pursued against Fluid and XL. The claimant had to pay £14,000 to one of the insurers against whom it discontinued.
The claim against XL is a relatively substantial claim for compensation for property damage under the policy. Nothing more needs to be said about this claim in this judgment.
The claim against Fluid is conveniently summarised in Mr Mesfin's skeleton for this application at paragraphs 10 – 12 as follows:
“10. The Claimants' claim against the Defendant alleges that it acted in breach of duty by failing to (i) make site visits fortnightly (or at an adequate frequency) during the structural works; (ii) adequately report to the Claimants whether the structural works were being executed generally in accordance with the contract documents and with good engineering practice; (iii) adequately record, or produce any documentation that records, its visits to site to consider the construction of the structural works.
11. As a result of those breaches, the Claimants did not have a clear picture of how the works were performed which resulted in discrepancies between how the Claimants reasonably understood the Works to have been performed and how they were actually performed. Not only did Fluid fail to produce written records of its site visits, but (some of) the limited documentation it produced was misleading – for example, in its report dated 4 June 2019 the Defendant incorrectly advised that a two-stage underpinning process was being undertaken, when in reality – and as was admitted by the Defendant nearly 2 years later in its letter of response – this was wrong.
12. The Defendant's breaches resulted in the Claimants incurring considerable costs investigating matters (primarily relating to negligent design/construction by members of the project team) which turned out to be unsustainable. Had the Defendant performed its duties, the Claimants would not have incurred those costs and would have immediately (and only) pursued claims under the non-negligent insurance policies. Accordingly, the Claimants claim the legal and investigation costs which they have incurred (the “costs claim”) and repayment of fees which they paid to the Defendant in relation to those duties (the “repayment claim”).”
The total value of the claim is said to be £134,256.47, of which £118,526.12 comprises the costs claim and the balance of £15,730.35 comprises the repayment claim. Given the issues raised by the application it is necessary to summarise the individual components of these claims.
The costs claim
Costs claim item 1 — £64,002. Solicitors fees for work done in relation...
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