Paul H Thomson and Another v David Ferrick O'Connor and Another/

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date07 Nov 2005
Neutral Citation[2005] EWCA Civ 1533
Docket NumberB1/2005/0679

[2005] EWCA Civ 1533





Royal Courts of Justice


London, WC2


Lord Justice Brooke

(Vice President of the Court of Appeal, Civil Division)

Lord Justice Dyson

Lord Justice Carnwath


Paul H Thomson and Another
David Ferrick O'connor and Another

MR C HOWELLS (instructed by Messrs Riley & Brown, Kent BR4 OJH) appeared on behalf of the Appellants

MISS C SHEA (instructed by Messrs Pemberton Greenish, London SW1X OBX) appeared on behalf of the Respondents


This is an appeal by the defendants from an order made by Her Honour Judge Faber at the Central London County Court on 16th March 2005 whereby she refused to grant an application by the defendants with the consent of the claimants for an adjournment of the trial of their counterclaim on the day fixed for trial. The parties had agreed on the previous day that judgment should be entered for the claimants on their claim for an unpaid service charge on their flat. The judge, therefore, on refusing the adjournment and on hearing that the defendants had no evidence to support their counterclaim, directed that by consent judgment be entered for the claimants in the sum of £4,820.77 plus interest in full and final settlement of their claim; that the counterclaim should be dismissed; and that the defendants should pay the claimants their costs, to be subject to detailed assessment if not agreed.


The claimants sued as the reversioners of a long lease of flat premises in Ovington Gardens, Kensington. Their claim for unpaid service charges related to the balance of their unpaid bills for service charges for the period between 1st April 2002 and 31st March 2003. The dispute between the parties arose out of the matters set out at paragraphs 5 and 6 of the counterclaim. In these paragraphs the defendants averred that since the claimants withdrew their provision of central heating for the demised premises in about 1995, they had tried to obtain the claimants' agreement to the routing of a flue for a gas fire boiler on the premises, but such agreement had unreasonably not been forthcoming in breach of the claimants' implied obligation in this respect. As a result the defendants had been unable to install a gas fire boiler, and they complained that they had been unable to let the demised premises at all, or alternatively had only managed to let them from time to time at a lower rent than they would have achieved if such a boiler had been installed. They therefore counterclaimed damages to be assessed.


We do not have the witness statements or any of the documents in the case or the expert engineer's report, but Miss Shea tells us, and Mr Howells does not dispute it, that the issue between the parties arose out of a consensual variation of the lease towards the end of 1995 whereby the appellants covenanted to deal with the central heating themselves. The claimants consistently maintained that there was no reason why the defendants should not install the appropriate venting without interfering with the parts of the building retained by the claimants. Miss Shea told us that the jointly instructed engineer in due course suggested three options for the venting, one of which would have complied with the claimants' approach to the problem. It would have been a matter for the judge to decide as a matter of liability whether this would have been a reasonable option.


However that may be, the proceedings were issued on 15th July 2003. On 8th April 2004 District Judge Madge allocated the action to multitrack and gave extensive case management directions. The trial window was set between 4th and 22nd October 2004 with a time estimate of one-and-a-half days.


On 27th September 2004 District Judge Wright made a further order. Nothing seems to have been advanced much since District Judge Madge's order. No problems arose out of District Judge Wright's direction that an expert heating engineer should be jointly instructed or that witness statements should be exchanged (although the timetable slipped in each case), and a new trial window was set between 24th January and 11th February 2005. Difficulties, however, arose over the implementation of his order that the parties should agree the identity of a jointly instructed valuer by 1st October 2004 who was to report as to the rental value of the premises between the relevant dates. This valuer was to serve his report by 4pm on 15th October, with questions to be served by 22nd October and replies by 5th November. On 13th January 2005 the court notified the parties that the trial date was now set for 16th March, one day now being provided for the trial. The parties did not indicate to the court that they might not be ready for trial.


There is before us a large bundle of correspondence between the parties which set out clearly for our benefit the problems that arose out of the identification and instruction of an appropriate valuer. To put it quite briefly, from the papers we have now seen two possible valuers had been identified and agreed by 8th October. One of them was selected by the defendants' solicitors who instructed him on 5th November, but he declined instructions three days later on the basis that the suggested task was not within his expertise. In due course the other valuer was approached shortly before Christmas, and he, too, could not help. The timetable was now running into January. There was an attempt to instruct a third valuer who would not have been available on 16th March and who would be charging quite a substantial fee. There was then a suggestion that a fourth valuer identified by the claimants' solicitors would be willing to act, but the defendants objected to him on the grounds that it was contemplated that he might in future assist the claimants in the management of the building for them.


Eventually, after the defendants' solicitors had written to 12 different firms of valuers asking if they were willing to act and to attend court on 16th March, a fifth valuer was identified. He made it clear at the outset that he would not be able to attend court on 16th March, but he would do his best to prepare a report before that time. In the event, he did not inspect the flat until 7th March and he told the parties on 8th March that he would not be able to get his report available until 18th March at the earliest.


It was at that stage that the defendants' solicitors raised the possibility of an application to the court on a joint basis for the case to be adjourned to the first available date after 1st April. The claimants' solicitors replied on 9th March to the effect that they could see no reason why the trial should not proceed on 16th March. In the event that liability was established on the counterclaim, damages could be assessed at a later date.



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