Royal Brompton Hospital National Health Service Trust v (1) Fredrick Alexander Hammond (2) John Richard Lerche (3) Anthony Robert Harris (4) Alan Massey (5) Alfred George Hepden (6) Sylvian Reinhold (7) Brian Ernest Teale (8) Watkins Gray International (U
| Jurisdiction | England & Wales |
| Judgment Date | 11 April 2001 |
| Neutral Citation | [2001] EWCA Civ 550 |
| Docket Number | Case No: A1/2000/3495 |
| Date | 2001 |
| Year | 2001 |
| Court | Court of Appeal (Civil Division) |
[2001] EWCA Civ 550
Lord Justice Aldous
Lord Justice Clarke and
Lord Justice Laws
Case No: A1/2000/3495
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TECHNOLOGY AND CONSTRUCTION COURT
HIS HONOUR JUDGE RICHARD SEYMOUR QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr A. Edwards-Stuart QC and Mr M. Cannon (instructed by Masons for the Appellants)
Mr M. Taverner QC and Mr R. Edwards (instructed by Fishburn Morgan Cole for the eighth, fourteenth and fifteenth defendants "WGI")
Mr A. Williamson (instructed by Davies Arnold Cooper for the 1st to 7th and 13th defendants/respondents "PMI")
Mr A. Bartlett QC and Miss J. Davies (instructed by Berrymans Lace Mawer for the ninth and sixteenth defendants/respondents "AA")
The 10th, 11th and 12th defendants were not present or represented.
ALDOUS LJ:
In an agreement in writing entered into in 1987, Taylor Woodrow Construction Ltd agreed, as main contractors, to build a new hospital in Chelsea. The original contract price was nearly £20 million. These proceedings arise from that contract. The claimants, the Royal Brompton Hospital National Health Service Trust are the successors to the Board of Governors of the Royal Brompton National Heart and Lung Hospital which was the other party to the agreement. There is no need to differentiate between them and I will refer to them as Brompton.
The work on Phase One of the construction of the new hospital started in March 1987 and practical completion was certified to have been achieved on 22nd May 1990, 43 weeks and 2 days late. By October 1992 an additional payment to the contract price of £5,204,247 had been paid to Taylor Woodrow in respect of claims made by them for additional work and for extensions of time. They were not satisfied with that sum and in October 1992 gave notice to concur in the appointment of an arbitrator. In that arbitration Taylor Woodrow claimed an additional £17.1 million. The Board sought to set aside all of the extensions of time that had been given.
These proceedings were brought by Brompton to recover damages for breach of contract. The first to seventh and the thirteenth defendants were engaged by the Board as the project managers. There is no need to differentiate between them and I will refer to them as PMI. The eighth, fourteenth and fifteenth defendants were the architects. Again there is no need to differentiate between them and I will refer to them as WGI. The ninth and sixteenth defendants were employed as mechanical and electrical engineering services consultants. I will refer to them as AA. The claims against the other defendants have been compromised.
Although these proceedings were started in January 1993, the parties agreed that they should not proceed while the arbitration was in progress. It was settled in December 1995 on terms whereby the Board agreed to pay to Taylor Woodrow a further £6,230,975 which included the claim for costs. Since then the proceedings have marched slowly forward with the statement of claim being served in August 1997. There followed preparation for trial which involved a number of hearings to resolve issues between the parties. Ultimately it was decided to split the trial. The issues of liability concerned with disputes as to the mechanical and electrical installation, the instruction to apply Hydrotite and the extensions of time granted to the contractor were set down for trial to start in October 2000. The other issues of liability were to be tried in June/July 2001 with the hearing of any issue on quantum being held in January/February 2002.
The trial on liability of the mechanical and electrical disputes and the disputes relating to Hydrotite and the extension of time granted to the contractor was opened before His Honour Judge Richard Seymour QC on 18th October 2000. It was then adjourned to enable the judge to continue to read the papers. On the resumption of the trial on 30th October 2000, the judge indicated that he had doubts as to whether the evidence contained in the witness statements of Brompton's expert witnesses established some of the alleged breaches of contract and negligence. There followed, over 4 days, submissions from counsel instructed by the parties as to whether certain of the allegations made by Brompton should be struck out. At the conclusion of those submissions, the judge told the parties that he had decided that the claimants' evidence did not prove their case on certain of the allegations made and therefore those allegations would be struck out and that other claims would be excluded. He gave his reasons in a written judgment that was handed down on 8th November 2000. His order was in these terms:
"1. The claimant's allegations against AA in relation to quality of co-ordination drawings be struck out.
The claimant's allegations against AA in relation to advice be excluded from consideration as a matter of case management.
The claimant's allegations against PMI and WGI in relation to quality of co-ordination drawings be struck out.
The claimant's allegations against PMI and WGI in relation to timing of co-ordination drawings be struck out.
The claimant's allegations against PMI in relation to advice be struck out.
The claimant's allegations against WGI in the alternative in relation to the extension of the time given on 6th April 1992 for mechanical and electrical drawings, be struck out.
The claimant's allegations against PMI and WGI in relation to the instruction to lay hydrotite be struck out."
The result of the judge's order was that only one of the mechanical and electrical disputes claims remained for trial, together with the Hydrotite dispute and the disputes relating to some of the extensions of time.
The claimant sought permission to appeal to this Court, but that was refused by the judge. However permission was given by this Court on 23rd November 2000. The trial of the surviving claims in relation to the extensions of time proceeded on 8th November 2000. Upon permission being granted on 23rd November 2000 the claimants sought an adjournment of what has been called the AA timing claim. On 29th November 2000 the judge refused the application for an adjournment, but decided to limit the trial of that claim to a particular issue. He therefore directed that the following question be tried.
"Was the Board's provision of co-ordination drawings on the dates set out in paragraph 54.1 of the statement of claim in breach of clause 5.4 of the main contract?"
In his judgment of 18th December, 2000 the judge answered that question in the negative and then dismissed the claims in section E of the re-amended statement of claim against AA. He refused leave to appeal. Leave to appeal was subsequently given by this Court with the result that the Court had before it an appeal by the claimants against the order of 8th November and an appeal against the order of 18th December 2000.
Mr Bartlett QC who appeared for AA submitted in his skeleton argument that this Court should first hear and determine the appeal against the order of 18th December 2000 as that would, he submitted, dispose of, or at least considerably shorten, the hearing of the appeal against the order made on 8th November 2000. We concluded that an attempt to shorten the appeal was not wise and therefore heard argument upon the first issue that was dealt with by the judge, before coming to the matter dealt with in the judgment of 18th December 2000.
The Procedure Adopted
In his order of 8th November 2000, the judge struck out claims and excluded from consideration, as a matter of case management, one further claim: which is the subject of an appeal.
His decision to exclude claims from consideration must have been carried out under the Court's management powers given in rule 3.1(2)(k). Clearly he had power to make an exclusion order even though no application had been made by the defendants (see rule 3.3). In fact there was no suggestion that the judge did not have the jurisdiction to make an exclusion order. Brompton's case was that he made the order in error and also that he was wrong to make an exclusion order as that left the claim in the air, perhaps to be raised again. He should either have struck the claims out or tried them.
It was not suggested that the re-amended statement of claim did not plead a good cause of action, but that did not prevent the judge striking out certain claims. Part 24 CPR is concerned with summary judgment and rule 24.2 enables the court to give summary judgment against a claimant on a particular claim or issue if it considers "that the claimant has no real prospect of succeeding in the claim or issue."
As was pointed out by Lord Woolf M.R. in Swain v Hillman [2001] 1 AER 91, a judge who has come to the conclusion that a claim is bound to fail should make use of the powers given in Part 24. To do so saves expense and achieves expedition. The test is whether there is a real prospect of success in the sense that the prospect is realistic rather than fanciful.
Mr Edwards-Stuart QC who appeared for Brompton accepted...
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