Rowe/Doyle v HDI Global
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 31 October 2023 |
| Neutral Citation | [2023] EWHC 2722 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: M22Q664/G73YJ960 |
[2023] EWHC 2722 (KB)
Mr Justice Freedman
Case No: M22Q664/G73YJ960
Case No: KA-2022-MAN-000011/G74YJ855
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
HIGH COURT APPEAL CENTRE MANCHESTER
ON APPEAL FROM THE COUNTY COURT AT BURNLEY
HIS HONOUR JUDGE CARTER
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
HIGH COURT APPEAL CENTRE MANCHESTER
ON APPEAL FROM HIS HONOUR JUDGE KHAN
Rebecca Sabben-Clare KC and David Bowden (instructed by SSB Law) for the Appellant/Claimant (Mr Doyle) and the Appellant (Mrs Rowe) and
James Malam (instructed by Weightmans LLP) for the Respondent/Defendant (in both cases)
Hearing dates: 7 and 20 June 2023
Handed down in draft: 18 October 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on Tuesday 31 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
| SECTION NUMBER | SUBJECT | PARAGRAPH NUMBER |
| I | Introduction | 1 – 7 |
| II | Background in the Doyle case | 8 – 12 |
| III | The email of 3 August 2022 from ABC | 13 – 21 |
| IV | The Judgment of HH Judge Carter of 19 August 2022 | 22 – 29 |
| V | Trial on 6 September 2022 | 30 |
| VI | The Doyle appeal | |
| (a) Grounds of appeal | 31 | |
| (b) Amended grounds of appeal | 32 | |
| (c) Submissions on behalf of Mr Doyle | 33 – 37 | |
| (d) The Respondent's Grounds | 38 – 40 | |
| (e) Submissions on behalf of Mr Doyle | 41 – 48 | |
| (f) The law | 49 – 50 | |
| (g) Discussion in Doyle | 51 – 76 | |
| (h) Conclusion in Doyle | 77 | |
| VII | The Rowe appeal | |
| (a) Procedural background | 78 – 83 | |
| (b) The Judgment of HH Judge Khan in Rowe | 84 – 93 | |
| (c) Grounds of appeal in Rowe | 94 | |
| (d) The submissions on behalf of Mrs Rowe | 95 – 98 | |
| (e) Discussion in Rowe | 99 – 124 | |
| (f) Conclusion in Rowe | 125 | |
| VIII | Overall conclusion | 126 |
I Introduction
This is a conjoined appeal of two matters. The first is an appeal by the Appellant Mr Dermot Doyle (“Mr Doyle”) against an order of HH Judge Carter made on 19 August 2022. By way of amendment, Mr Doyle also appeals an order of HH Judge Khan of 6 September 2022. The second is an appeal in a different action by the Appellant Mrs Eileen Rowe (“Mrs Rowe”) against an order of HH Judge Khan made on 14 November 2022.
In both cases, claims were made against HDI Global Specialty SE (“HDI”), insurers under the Third Parties (Rights Against Insurers) Act 2010 for declarations and damages (the schedules of loss comprise the sums of £65,910 in the case of Mr Doyle and the sum of £51,879.86 in the case of Mrs Rowe). The alleged liability of HDI is as the insurer of Heatwave Energy Solutions Ltd (“the Installer”) for breach of contract and/or negligence in respect of the installation of cavity wall insulation (“CWI”) at their respective homes in Burnley. In the case of Mr Doyle, this was on 10 April 2014, and in the case of Mrs Rowe, this was on 1 July 2014.
It was alleged by Mr Doyle that the work had caused problems of damp and moisture which caused damage to the property internally. The work was carried out by the Installer, but this company went into liquidation on 4 March 2019. The claim was brought against HDI as insurers in late 2020. The proceedings are defended on numerous grounds.
The appeals have grown in their ambit. In the Doyle appeal, the appeal has expanded from Grounds of Appeal dated 8 September 2022 comprising 9 grounds to an additional 4 grounds in an application to amend the appeal dated 12 June 2023. Mr Doyle's appeal is supported by a skeleton argument dated 15 September 2022 (12 pages) and to what is entitled the Appellant's Replacement Skeleton Argument dated 6 June 2023 (more than 21 pages). The Replacement Skeleton Argument at [3] expressly preserves the standing of the first skeleton argument. It is more expansive than the original grounds of appeal, but I do not propose in this judgment to rehearse HDI's analysis of how the appeal has grown. HDI's respondent skeleton argument is dated 13 March 2023 and updated 19 May 2023 (15 pages). Here too there is a Respondent's further skeleton argument dated 15 June 2023 (9 pages). In addition, there was a supplementary argument at the request of the Court to show the inter-relationship of the appeals dated 9 June 2023 (6 pages).
In the Rowe appeal, the Appellant's skeleton argument dated 6 January 2023 comprises 18 pages. There is a Respondent's skeleton argument dated 15 June 2023. There are a number of bundles comprising hundreds of pages.
At the instigation of the Court and without objection of the parties, the two appeals have been ordered to be heard together. The reason for this is that the two appeals arise out of very closely related subject matter, the same kinds of allegations in terms of allegations about defective installation works and a very similar problem as regards the same expert not observing orders of the court, and issues arising as to the management of the expert evidence and the impact on the trial itself. In both cases, the appeals arise out of case management decisions which are said to have been wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
Indeed, there is some cross reference from one appeal to the other on the face of the papers. There had been cross reference in the Doyle case to the judgment of HH Judge Khan in the Rowe case. It was in the interests of justice and consistent with the overriding objective for the appeal of Doyle to be heard with a rolled-up hearing in the Rowe case of permission to appeal, and the appeal to follow if permission were granted.
II Background in the Doyle case
By notice of 18 November 2021, a trial was listed in the case of Doyle to be heard on 6 September 2022 with an estimate of three days.
Mr Doyle obtained an initial report from an expert Mr Muir, but he returned to a fulltime position in Saudi Arabia. An application was made to substitute for Mr Muir. This expert will be referred to in this judgment as ABC. ABC made a visit to the home and produced an expert's report on 1 December 2021. The report was ordered to served on HDI by 24 January 2022. By order of 24 February 2022, DJ Clarke permitted Mr Doyle to substitute ABC as his expert witness and to rely on the report of ABC dated 1 December 2021. A report in response for HDI was ordered to be served by 21 March 2022, and that was done through a report of Mr Mancini.
In relation to expert evidence, a joint statement of issues was ordered to be produced by 2 May 2022, and this was later extended to 15 June 2022. No joint meeting of experts took place. This was due to the failure of ABC to engage with Mr Mancini, the expert for HDI.
By an order of 21 June 2022, DJ Clarke permitted HDI to rely upon a report of Mr Tony Mancini to be served by 20 July 2022. Mr Mancini's report dated 6 July 2022 was served accordingly. By the same order, DJ Clarke ordered that unless the expert reports were agreed, the experts were to prepare a joint statement by 3 August 2022.
In breach of the order of 21 June 2022, there were no joint discussions between the experts due to the fact that ABC did not attend discussions with Mr Mancini.
III The email of 3 August 2022 from ABC
HH Judge Carter referred to an email of ABC dated 03 August 2022 which the Court had received from in relation to this claim. This was headed “CASE: G73YJ960 Application to be struck from the record”. The email was not copied to the solicitors for either side. It stated:
“Dear Sir/Madam
This letter concerns my participation as Surveyor Expert Witness in court case number: G73YJ960.
I am a chartered surveyor and my firm (REEF) is regulated by the Royal Institute of Chartered Surveyors (RICS).
Under the RCIS Guidance: UK surveyors acting as expert witnesses 4 th edition, amended August 2020 and in line with GN4 section 4.2 and PS3 section 3.2 of that documents, I am required to bring your attention that I should not be on the court record and request my removal for the reasons set out below.
My appointing lawyers in this case were SSB Law of Sheffield.
1) Following 2 meetings with SSB Law at their offices in Sheffield (I live in south west Devon) and having multiple calls with them, and redrafting my Standard Terms and Conditions and Letter of Engagement to meet their required amendments, SSB have not signed Terms with my firm. These Terms of Engagement are a requirement of my regulator. At the time of writing this letter, my invoices for all works in connection with this case and other cases undertaken for SSB Law remain unpaid and overdue. Wesley Bower, managing director of SSB Law asked (in a phone conversation on 26.7.22) that I wait until the end of September 2022 but disclosed this is subject to a successful application being made by SSB Law for funds, I am forced to reasonably conclude that there is no guarantee that SSB Law have, or will have, the funds to pay for my firm's services.
2) [there is no sub-para 2]
3) SB Law have routinely named me on cases, often without my consent of knowledge, and… then issued instructions after the event.
4) SSB Law have been submitting Part 35 report for cases that purport to have my signature on. However, in ALL instances I have not seen or participated in the creation of the report — save the inclusion of my site notes without any of my photos.”
At the PRT on 19 August 2022 HH Judge Carter read out part of the email which said that ABC could not continue as the...
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