Al Nahda Insulation Contracting LLC v Tremco Illbruck Export Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Stephen Furst |
| Judgment Date | 06 February 2017 |
| Neutral Citation | [2017] EWHC 956 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 06 February 2017 |
| Docket Number | Case No: HT/2014/000210 |
[2017] EWHC 956 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Stephen Furst, QC
Case No: HT/2014/000210
Mr L Wygas (instructed by Chadbourne & Parke LLP) appeared on behalf of the Claimant
Mr N Moody, QC and Mr T Killen appeared on behalf of the Defendant
(As Approved)
THE DEPUTY JUDGE: This is an application under CPR 17.1(2)(b) to amend the Particulars of Claim. The action concerns three car parks at the Dubai Mall in Dubai. MR Properties was the employer who employed a joint venture, (Several inaudible words) and consolidated contractors, as the main contractor to build the mall and the car parks. The main contractor subcontracted the surface finish works to the car parks to the claimants, who in turn sub-subcontracted the works to the defendants, Tremco. They applied a product known as vulkem.
The car park surface finish work was carried out between December 2006 and December 2008. In about April 2009 the top layer of vulkem began to deteriorate. It was evident this was a widespread problem but there was no agreement as to the best way to proceed. It was decided to carry out remedial works to level 5 of the car parks. The remedial works involved some departures from the original working method. These are set out at paragraphs 35(a) onwards, and by way of example, 35(a) says:
"On the areas of car parks of level 5 referred to as the drum phase, the level 5 remedial works involved removing all previous coatings of vulkem and applying a new vulkem but adding an additional topcoat of vulkem 346."
( Quote unchecked)
Paragraph 35(b) as well describes a different method of coating from the original methodology.
The level 5 remedial works were carried out between January and April 2011. However, they were not successful and the claimants were instructed to remove all the vulkem and replace it with deck shield. The claimants issued these proceedings in August 2014 against Tremco, the supplier of vulkem, alleging that the vulkem that it supplied did not comply with the specification, or at least it did not comply sufficiently and that it was unfit for purpose. Thus, as originally pleaded, the allegations concerned the adequacy or otherwise of the vulkem and in particular the topcoat, known as vulkem 346. In this connection the pleading relies on testing of a sample carried out in the latter part of 2010 which revealed apparently that the tensile strength of the sample was about 25 per cent of what it should have been. Put shortly, the defendants contend on the other hand that the vulkem was not applied in accordance with their instructions or method statement, and it was this that caused the failure of the car park surface finish.
The essential elements of the proposed amendment insofar as they are contentious are twofold: firstly, to allege an agreement or agreements between the claimant and defendant as regards the level 5 remedial works; and secondly, to allege that had the level 5 remedial works been successful that the same remedial scheme would have been applied to the rest of the car park.
The proper approach to an application to amend in this type of situation has been considered recently in CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd & Ors [2014] EWHC 3546 (TCC), in particular at paragraph 19, and in Willmott Dixon Construction Ltd v Robert West Consulting Ltd [2016] EWHC 3291 (TCC), in particular at paragraphs 7 and 8, the latter paragraph citing with approval a decision of Carr J.
The claim form was issued in this matter in August 2014. In December 2014 the proceedings were served but the action was then stayed. In May 2015 the defence and counterclaim was served. In August 2015 the reply and defence to counterclaim were served. By November of last year disclosure had been completed, and on 27 January of this year witness statements were exchanged. On 10 February supplemental witness statements are due to be signed. On 24 February experts are due to meet. On 3 March a joint statement of the experts is due to be served. On 17 March reports of the experts are to be exchanged. On 31 March supplemental reports of the experts are to be exchanged. There is to be a pre-trial review on 7 April, and the trial is listed to start on 8 May for eight days. On any view, this application is late, if not very late. At this stage it is difficult to know whether the trial date can be kept if the amendment were allowed. At the very least, were it allowed, it puts the trial date in peril.
The application was issued on 8 November 2016 although it had been provided in draft about a month earlier on 6 October. It was said that the hearing of this application would come on for hearing in December of last year but for the unavailability of the defendants' counsel. Even assuming that the delay between December 2016 and the hearing on 3 February of this year before me was wholly attributable to the defendants, this application would still be regarded as late or very late. Of course, the critical question is: why is it so late? Whilst I have a statement from Michelle George, the partner in Chadbourne & Parke, who have conduct of the matter, she provides no explanation as to why the application is only put forward now. In the course of submissions, Mr Wygas who appeared for the claimant suggested that certain matters had only come to light after the case had been pleaded. However, this was not elaborated upon nor supported by evidence. I therefore have to deal with this application on the basis that there is no explanation for its timing.
The defendant suspects it may be due to limitation difficulties facing the claimants. In this connection they point to the fact that by two consent orders dated January and October 2016, 28 of the 38 deliveries of vulkem relied upon by the claimant in its Particulars of Claim had been struck out by consent. Clearly, if the proposed amendment were allowed, it could overcome these difficulties in whole or in part by relying on agreements made in November 2010 and/or in January 2011.
Before considering the impact or likely impact on the timetable of this proposed amendment, it is necessary to examine it in detail. For these purposes I consider the amendment with certain additions added to it last week. No objection was taken to the fact that these amendments, the blue amendments that appear in the bundle in the version behind tab 13 of the bundle, were only provided very recently. Paragraph 35(g) contends that Tremco and...
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Table of cases
...Almeida v Universal Dye Works (2000) 103 IR 433 III.21.104 Al Nahda Insulation Contracting LLC v Tremco Illbruck Export Ltd [2017] EWHC 956 (TCC) III.26.75 Alphacell Ltd v Woodward [1972] AC 824 II.13.58 Alphasteel Ltd v Shirkhani [2013] EWCA Civ 1272 III.26.91 Al-Shennag v Statewide Roads ......
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Litigation
...(airmed: [2014] EWCA Civ 707); Keene v SJ Weir Ltd [2017] SASC 59; Al Nahda Insulation Contracting LLC v Tremco Illbruck Export Ltd [2017] EWHC 956 (TCC). A distinction may be made, in this regard, between a proposed amendment which introduces a new cause of action arising out of new or unp......