Rattle Plant Hire Ltd v Secretary of State for the Environment Food and Rural Affairs (No. 2)

This judgment is in seven parts, namely Part 1—Introduction; Part 2—The Facts; Part 3—The Present Application; Part 4 – Are the Proposed Amendments Consequential on the Preliminary Issues Judgment?Part 5—DEFRA's Grounds for Opposing the Amendments; Part 6—Upon What Terms should the Amendments be Allowed?Part 7—Conclusion.

Part 1: Introduction

This is an application for permission to amend, which raises a novel question of principle. That question is whether the rule in Henderson v Henderson can be invoked as a ground for opposing amendments in existing litigation. The present judgment is a sequel to the judgment given by this Court in Ruttle Plant Hire Limited v The Secretary of State for Environment, Food and Rural Affairs[2006] EWHC 3426 (TCC). Anyone listening to or reading this judgment is assumed to be familiar with the matters set out in that earlier judgment.

After these introductory remarks, it is now time to turn to the facts.

Part 2: The Facts

In August 2000, there was an outbreak of “Classical Swine Fever” (“CSF”) in East Anglia. The Ministry of Agriculture, Fisheries and Food (“MAFF”) engaged Ruttle Plant Hire Limited (“Ruttle”) to provide plant and labour for the purpose of controlling the outbreak. Ruttle provided plant and labour for that purpose between August 2000 and June 2001. During that period, MAFF made payments to Ruttle totalling £4,130,393.67. Ruttle contended that substantial further payments were due. Ruttle claimed payment of those sums from the Department for Environment, Food and Rural Affairs (“DEFRA”). DEFRA is the Government department which has replaced MAFF since 8 ^th June 2001. All of MAFF's rights and obligations have been transferred to DEFRA.

The Parties were unable to resolve, by negotiation, the outstanding issues concerning payment. Accordingly, by a claim form issued in the Technology and Construction Court on 26 ^th January 2006, Ruttle claimed against the Secretary of State for the Environment, Food and Rural Affairs £5,743.971.70 as representing the outstanding balance due in respect of the CSF Contract. This sum was the difference between the total value of Ruttle's invoices and the total amount paid by MAFF to Ruttle in respect of CSF.

At a Case Management Conference held on 21 ^st March 2006, Ramsey J made an order for the trial of preliminary issues to commence on 11 ^th December 2006, with a time estimate of eight days. Thereafter, solicitors and counsel on both sides drew up a list of proposed preliminary issues which were crucial to the dispute between the parties. It was believed and hoped that, once these issues had been resolved, the parties and their advisors would be able to resolve the outstanding payment issues by negotiation and agreement.

The list of preliminary issues, which was placed before the Court for determination at the hearing in December 2006, reads as follows:

“2. Was it a term of the contract between the parties that the claimant would

deduct from its labour charges a 30-minute meal break per labourer or

working foreman per day?

3. Was a term to be implied into the contract between the parties to the effect that the Claimant was entitled to charge the Defendant an additional 'administration charge' of 3% on labour charges?

3a. Is the work described by Mr Carrol at paragraphs 49 to 53 of his witness statement dated 20th October 2006 properly described as tasks carried out by 'working foremen' so as to permit the claimant to recover at the agreed labour rate of £17.70 per hour for that work under the express alternatively applied term pleaded at paragraph 62 of the defence and counterclaim or is the value of that work recoverable if at all elsewhere?

4. What, if any, plant hire rates were agreed between the parties for plant and equipment supplied by the claimant to the defendant to deal with the outbreak of CSF in Bury St Edmunds between August 2000 and June 2001?

5. In particular, did Clause 1A of the 'Schedule of Dayworks Carried Out Incidental to Contract Work' produced by the Federation of Civil Engineering Contractors, dated 22nd January 1990, form part of the agreement between the parties to the effect that for those items of plant which the claimant obtained from subcontractors, the claimant was only entitled to charge the defendant cost plus 12.5%?

6. If Clause 1A of the Schedule of Dayworks Carried Out Incidental to Contract Work produced by the Federation of Civil Engineering Contractors, dated 22nd January 1990, forms part of the agreement between the parties, is plant to be considered as having been obtained from subcontractors for the purposes of the schedule, in circumstances where plant was provided to Ruttle Plant Hire Limited from within the Ruttle Group?

7. It being agreed between the parties that the CPA model conditions for the hiring of plant applied to the contract, what is the meaning of clause 24 and what is its application to this contract?

8. If there was no concluded agreement between the parties as to the aforementioned plant hire rates, what would have been a reasonable rate for the claimant to have charged the defendant for plant and equipment supplied by it to the defendant to deal with the outbreak of CSF in Bury St Edmunds between August 2000 and June 2001?

9. Was the claimant contractually entitled to charge the defendant hourly hire rates for vehicles such as vans and station wagons where mileage was also charged for the use of those vehicles by foremen and senior staff?

10. Was the claimant contractually entitled to charge the defendant for plant (apart from scaffolding) that remained on site during close-down over holiday periods, e.g. Christmas and New Year, when there was no labour on site to use the plant? If so, at what rates and for what period of time was the claimant entitled to make such charges?

11. Was the claimant contractually entitled to charge the defendant for plant in the following circumstances:

(a) whilst plant remained unused on site at an infected premises pending demobilisation (for example, after cleansing and disinfection had been completed) and during the period when plant remained on site, there was no longer any labour on site to operate the plant;

(b) where the claimant has removed plant from an infected premises, stored it at another location pending demobilisation and, during the period when the plant was stored at another location, no use was being made of the plant;

(c) where the claimant has been instructed by the defendant to remove the plant from site as recorded in the defendant's APO/CPH records?

If so, at what rates and for what period of time was the claimant entitled to make such charges?

13. Was the claimant contractually entitled to charge the defendant for those items set out in paragraph 106 of the defence and part 20 counterclaim?

15. Pursuant to section 5 of the Late Payment of Commercial Debts

(Interest) Act 1998, should any interest be paid on any sums due to the claimant for the period from 30 ^th May 2004 to 11 ^th February 2005 and, if so, how much?”

As ordered by Ramsey J, the trial of the preliminary issues duly commenced on 11 ^th December 2006 and lasted for two weeks. On Thursday, 19 ^th December, I gave judgment on the preliminary issues. Both parties achieved success on certain issues and neither emerged as outright victor (see Parts 7 to 17 of the previous judgment).

For present purposes, it is necessary to focus upon Issues 4 and 7. In respect of Issue 4, the Court made the following order:

“The expressly agreed contractual rates for plant were the full plant hire rates notified by the Claimant to the Defendant on 21 ^st and 31 ^st August 2000. Further, consequent upon this finding by the Court, the parties have agreed that:

(i) where an item of plant does not feature in the lists of plant rates notified by the Claimant to the Defendant on either 21 ^st or 31 ^st August but does nevertheless have a rate specified in the FCEC 1992 schedules, that rate should apply to that item of plant; and

(ii) where an item of plant does not feature in the lists of plant rates notified by the Claimant to the Defendant on either 21 ^st or 31 ^st August and does not have a rate specified in the FCEC schedules, then in those circumstances a reasonable rate should be agreed between the parties for that item of plant based upon industry custom and practice.”

The short term which is used commonly to refer to rates of the kind referred to in sub-paragraph (ii) is “Star Rates”.

In respect of Issue 7, the Court made the following order:

“Clause 24 of the CPA conditions sets out a procedure for terminating the contract between the Defendant and the Claimant. During the currency of that contract, reasonable notice for taking any specific piece of plant off hire was seven days notice in writing”.

Having given judgment promptly at the end of the trial, I hoped and expected that the parties would respond by dealing with ancillary matters swiftly and efficiently. That expectation was not fulfilled. Over three months elapsed before the parties returned to Court to argue about outstanding...