Michael Sarkesian v Hutton Construction Ltd
| Jurisdiction | England & Wales |
| Judge | Williams |
| Judgment Date | 20 January 2023 |
| Neutral Citation | [2023] EWHC 388 (TCC) |
| Docket Number | Case No: HT-2021-BHM-000013 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2023] EWHC 388 (TCC)
HIS HONOUR JUDGE Richard Williams
Case No: HT-2021-BHM-000013
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT
(BIRMINGHAM)
KING'S BENCH DIVISION
Birmingham Civil Justice Centre
The Priory Courts
33 Bull Street
Birmingham
B4 6DS
Mr J Fairbairn (instructed by Dentons) appeared on behalf of the Claimants
Mr T Owen (instructed by Watson, Farley & Williams LLP) appeared on behalf of the Defendant
Introduction
This is my judgment following the hearing of the claimants' application for permission:
a. to amend the Particulars of Claim; and
b. to rely upon the expert report of Mr Taylor, senior timber frame consultant, whose report is dated 11 November 2022
and in the context of a claim for damages for breach of a JCT contract.
Background
By way of brief background, the first claimant is Mr Sarkesian, and the second claimant is Mrs Mul. Until recently they were husband and wife, who together with their children occupied Fairhill, Riding Lane as their family home.
The property was purchased in 2006 in the name of the second claimant before being transferred into the name of the first claimant in 2016. It is a substantial property comprising a listed country house and 70 acres of grounds.
In April 2008, the second claimant appointed the defendant, Hutton Construction Limited, as main contractor to carry out extensive refurbishment, extension and alteration works to the property. The initial contract sum was for some £3 million.
Earlier court proceedings were issued in which the claimants claimed damages of some £1 million in respect of alleged defective works. Those proceedings were compromised in 2014, although the settlement agreement excluded any latent defects, being defined as any defect unknown and not reasonably discoverable at the date of the agreement, but subject to a de minimis limit of £100,000 plus VAT for remedial costs.
In April 2021, the claimants issued the present proceedings. It is alleged that, in or around March 2020, the claimants discovered an ingress of water through a flat lead roof installed by the defendant. The claimants sought damages of some £385,000, the bulk of which relate to the cost of remedial works to the roof.
Following a costs and case management hearing on 9 February 2022, directions were given to trial. The trial was listed to be heard on 27 February 2023 with a time estimate of four days with extended disclosure by 13 May 2022 and exchange of factual witness statements by 10 June 2022. Those directions have been complied with.
The parties were also each given permission to rely upon separate experts for both liability and quantum, the claimants' liability expert being Mr Lindley and the defendant's liability expert being Mr Hay. It was directed that they were to hold discussions by 15 July 2022, serve statements by 5 August 2022 and prepare a joint statement addressing issues of disagreement by 2 September 2022. Those directions have not been complied with.
The budgeted costs were: for the claimants some £330,000 and for the defendant some £400,000.
The electronic bundle for this hearing extends to 641 pages and I am unable, in the course of this judgment, to refer to all the evidence and argument relied upon by the parties, but I have taken it all into account.
The proposed amendments/expert evidence
The most contentious proposed amendments are new paragraph 27(e) under the subheading “ The premature failure of the flat lead roof and the ingress of water.” New paragraph 27(e) states that:
“Notwithstanding the condensation and/or other ingress of water the plywood would not have delaminated and lost its integrity resulting in the premature failure of the lead flat roof had all the plywood supplied and fitted been in accordance with the Specification.”
Further, the proposed amendment at paragraph 32 under the subheading “Particulars of Loss” states:
“….. and in the alternative, the claimants claim the cost of replacing the plywood. These are estimated to be £185,000 plus VAT…..”
The report of Mr Taylor records that he was provided with two packages of plywood for testing. Each package contained a small sample of the plywood deck which had not failed in service, along with a handful of loose veneers taken from the plywood which had failed. He was only able to test forensically the plywood which had not failed in service as plywood glue bond testing cannot be conducted on already failed/ delaminated plywood. In addition, he was provided with a number of short video clips of opening up works showing the condition of the plywood deck and roof structure. Mr Taylor reported that the glue bonding testing results were consistent with the samples of plywood which did not fail in service, likely coming from a batch of plywood being in accordance with the Specification.
Mr Taylor also carried out a visual examination of the gross characteristics of the plywood which failed in service along with the plywood which did not. He observed a number of differences based upon those visual observations of the plywood veneers and a review of the video clips. He concluded that the plywood which failed in service was of substandard quality.
Analysis and conclusion
Ultimately, whether to allow an amendment and/or expert evidence are case management decisions in the discretion of the court with such discretion being exercised in accordance with the overriding objective of dealing with cases justly and at proportionate cost.
Trial date lost?
If I were to grant permission for the claimants to rely upon the evidence of Mr Taylor, then it must follow, in the interests of fairness and to ensure that the parties are on an equal footing, that the defendant also be given permission to rely upon its own timber frame expert and, indeed, in written submissions it was confirmed that the claimants do not object to the defendant obtaining its own expert evidence.
The trial is due to start five weeks on Monday. The parties will need to agree the trial bundle to be filed at court at least seven days before the start of the trial and to allow counsel sufficient time to prepare and file their skeleton arguments in sufficient time for the trial judge's prereading. In practical reality, there are only four weeks available for the defendant to obtain and serve its expert report and then for the experts to discuss and prepare a joint statement setting out their areas of agreement and disagreement with reasons for any disagreement. In my judgment, there is now simply not the time available for all that to be done before trial, and so it is inevitable that, if permission for further expert evidence is granted, then the trial date will have to be vacated.
Can the proposed amendments be divorced from the need for further expert evidence such that those amendments be permitted and the trial date preserved? The claimants say yes, and the defendant says no.
It is submitted on behalf of the defendant that:
a. the proceedings to date have focused on the assertion that the lead roof did not contain ventilation, that this caused condensation, moisture and ingress in the roof and this caused the...
To continue reading
Request your trial