Nazirali Sharif Tejani v Fitzroy Place Residential Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pepperall |
| Judgment Date | 10 July 2020 |
| Neutral Citation | [2020] EWHC 1856 (TCC) |
| Docket Number | Case No. HT-2020-000162 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 10 July 2020 |
[2020] EWHC 1856 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice,
Strand, London WC2A 2LL
THE HONOURABLE Mr Justice Pepperall
Case No. HT-2020-000162
David Berkley QC and Kay Puvanesan (instructed by Mortimer Court Chambers) for the Claimant
Gary Blaker QC (instructed by Clyde & Co LLP) for the Defendants
Hearing date: 10 July 2020
Approved judgment
I direct that pursuant to CPR PD39A para. 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.
This judgment concerns a short costs point, but lying behind it are more significant questions of practice as to the proper approach to pleading a statement of case and to applications to strike out.
BACKGROUND
By a contract dated 5 July 2012, Nazirali Sharif Tejani agreed to purchase the leasehold interest in apartment 801, Block 7, Fitzroy Place, London W1 for £2,595,000 from Fitzroy Place Residential Limited. The apartment was purchased off plan pursuant to a contract between Mr Tejani, Fitzroy Place and the developer, 2–10 Mortimer Street GP Limited Partnership.
The development was not completed until May 2016 when Mr Tejani entered into a lease with Fitzroy Place. By a claim issued on 1 May 2020 against both the freeholder and the developer, Mr Tejani complains that the apartment is blighted by an unexplained noise. He pleads that the noise can be heard throughout the apartment, that it is intermittent, variable in volume, that it happens both at day and at night, that it is loud enough to wake him and his wife when sleeping, that it cannot be suppressed or masked and that attempts to solve the problem have not been successful.
Mr Tejani pleads that the apartment is not fit for habitation and that the defendants are liable for breach of s.1 of the Defective Premises Act 1972. Further, he pleads a breach of clause 5.6 of the 2012 contract by which the developer agreed to take reasonable steps to procure that defects that were the responsibility of the building contractors would be remedied as soon as reasonably practicable, and a breach of clause 4.1 of the lease by which the freeholder covenanted to ensure that Mr Tejani would enjoy quiet possession of the apartment. In addition, he pleaded that the noise amounted to a nuisance and that the Defendants had caused or permitted such nuisance.
As to loss and damage, Mr Tejani pleaded at paragraph 31:
“Further as a result of the noise the Claimant was unable to rent out the Apartment. The Apartment was and is not habitable and accordingly the Claimant could not rent the property causing further loss and damage and lost rental income.”
Further, at paragraph 37, he pleaded:
“The matters complained of have caused annoyance, discomfort, distress and loss of amenity to the Claimant who has been unable to occupy the property as he intended when he purchased it and is unable to rent the property out to a tenant.”
After pleading the nuisance, he added, at paragraph 46:
“That breach is an ongoing breach causing the Claimant loss and damage.”
Under the heading “PARTICULARS OF LOSS & DAMAGE”, he then pleaded the following particulars at paragraphs 47–51:
“47. The Claimant is entitled to a refund of the purchase price of the Apartment being the total sum paid on completion to the Defendants being £2,595,000.00 plus interest.
48. In addition, the Claimant is entitled, for breach of the Sale and Purchase agreement, to claim the losses caused including;
a. The costs ancillary to the purchase of the property namely solicitors, and agents costs together with other miscellaneous costs totalling £14,597.73 as set out in the Completion statement together with;
b. Stamp duty paid to HMRC in the sum of £225,150.00;
c. In addition, after completion, but before the Claimant was aware of the Noise defect, he improved the property and furnished it in the total sum of £49,269.20 for improvements and £63,961.27 for furnishings. The purpose of these works was in order to maximise his rental income for letting the Apartment. It was a reasonably foreseeable consequence of a purchaser buying a property of this nature that they would seek to rent the property and would furnish it and improve it to maximise its potential rental income;
d. Furthermore, it was the Claimant's intention to rent the property out to a tenant at the rate of per week £2,000. The property has to date stood empty for 205 weeks being the date of completion until 01 March 2020 giving a total loss of rental income of £400,000 accruing weekly at the rate of £2,000 per week.
49. The total sum claimed excluding interest is £3,357,978.20.
50. The Claimant also claims interest at the rate of 8% per annum in accordance with section 35A the Senior Courts 1981 (sic).
51. Alternatively, the Claimant claims interest at such rates and for such periods as the court thinks fit.”
THE APPLICATION
On 11 June 2020, the Defendants issued an application seeking to strike out parts of the Particulars of Claim pursuant to rr.3.4(2)(a) and (b) of the Civil Procedure Rules 1998. The draft order served with the application notice clarified that the target of the strike-out was paragraphs 47–51 of the Particulars of Claim that I have quoted above. In addition, the Defendants sought a number of orders consequential upon the strike-out:
9.1 First, an order that the Claimant file Amended Particulars of Claim, failing which his whole claim would be struck out.
9.2 Secondly, a stay for alternative dispute resolution.
9.3 Thirdly, an order that the Claimant should pay the costs of the application on the indemnity basis.
The application was supported by the witness statement of Keith Conway of Clyde & Co. LLP, the solicitor acting for the Defendants. Mr Conway explained, at paragraph 1 of his statement, that it was made in support of the strike-out application, but continued:
“Further, the Defendants also put the Claimant on notice that it (sic) .will use this application hearing to apply for an order in relation to the Part 18 requests that are being served at the same time as this application. This is in the event that the Claimant fails to deal with the Part 18 requests adequately. Thirdly, the Defendants have been seeking to deal with the issue raised in this claim. The Claimant has in recent months refused the Defendants' contractors access to his flat in order for remedial works to be carried out. The Defendants seek an order staying proceedings after the point that the Claimant has remedied his defective Particulars of Claim.”
Kay Puvanesan, the Claimant's junior counsel who is also conducting this litigation on behalf of his client, filed a witness statement in response dated 8 July 2020. Subsequently, leading counsel on each side were able to discuss this application. As a result of those discussions, this application has been compromised subject only to the question of costs. The parties have agreed the following directions:
11.1 Mr Tejani will file and serve Amended Particulars of Claim “providing particulars of his loss and damage and the basis of assessment of such losses” by 2 August 2020.
11.2 By the same date, Mr Tejani will give further information in response to the Defendants' Part 18 Request.
11.3 Thereafter, the matter will be stayed for alternative dispute resolution.
The recitals to the parties' draft order also records Mr Tejani's agreement to allow Fitzroy Place and its agents access to his apartment for the purposes of inspection, further diagnostic testing and any necessary remedial works.
The parties' agreement is, however, silent as to what should happen to the Defendants' application. Gary Blaker QC, leading counsel for the Defendants, argues that it should be adjourned generally with liberty to restore. Such course would, he submits, allow the Defendants to restore their application in the event that the Amended Particulars of Claim do not rectify the perceived defect, alternatively if there is some new problem with the statement of case. David Berkley QC, leading counsel for the Claimant, resists such order and submits that the application has...
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...upon the summary in relation to the application of CPR 3.4(2) provided by Pepperell J in Tejani v Fitzroy Place Residential Ltd [2020] EWHC 1856 (TCC) at [21], and, in particular, at [21.3]: “While there are other categories of abuse that are not relevant to this application, the court may......
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...of Cheshire Police [2018] EWHC 34 (QB) at [93] and Pepperall J, as he had then become, in Tejani v Fitzroy Place Residential Ltd. [2020] EWHC 1856 (TCC) at 65 Although the application is not made by the second defendant, I will similarly strike out the pleading as against the second defend......