Sainsbury's Supermarkets Ltd v Condek Holdings Ltd (formerly Condek Ltd) and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 24 June 2014 |
| Neutral Citation | [2014] EWHC 2016 (TCC) |
| Docket Number | Case No: HT-12-360 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 24 June 2014 |
[2014] EWHC 2016 (TCC)
The Honourable Mr Justice Stuart-Smith
Case No: HT-12-360
Claim No: HT-12-360
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
THE HONOURABLE MR JUSTICE STUART-SMITH
Alexander Hickey (instructed by SNR Denton UK LLP) for the Claimant
Helena White (instructed by SGH Martineau LLP) for the Third Defendant
Claire Packman (instructed by Beale and Company Solicitors LLP) for the Fourth Defendant
ORDER
UPON hearing Counsel for the Claimant, Third Defendant and Fourth Defendant at the hearing of the Third and Fourth Defendants' applications for strike out and/or summary judgment on 11 and 12 June 2014
AND UPON the First Defendant and Second Defendant not appearing and having indicated they do not participate in this action
IT IS ORDERED that
1. The Claimant's claim against the Third Defendant be dismissed.
2. The Claimant's claim against the Fourth Defendant be dismissed.
3. The Claimant do pay the Third Defendant's costs of and occasioned by the application on an indemnity basis, summarily assessed in the sum of £21,021.36, by 4pm on 26 June 2014.
4. The Claimant do pay the Fourth Defendant's costs of and occasioned by the application on an indemnity basis, summarily assessed in the sum of £38,616.00, by 4pm on 26 June 2014.
Order made on 12 June 2014
AND
5. The Claimant do pay the Third Defendant's costs of the action, including costs on an indemnity basis from 10 May 2014, to be subject to detailed assessment if not agreed.
6. The Claimant do pay the Fourth Defendant's costs of the action, including costs on an indemnity basis from 25 November 2013, to be subject to detailed assessment if not agreed.
Order made on 24 June 2014
Hearing dates: 11 and 12 June 2014
The Claimant ["Sainsbury's"] has brought this action against four Defendants arising out of the design and construction of a car park for its supermarket at North Cheam. The construction of the car park took place in 2006 with practical completion being in about November of that year. There was then a maintenance period which appears to have stretched to 2008. Sainsbury's alleges that the car park is defective as a consequence of inadequate design and construction and that it needs to be demolished. It accepts that the defects were apparent by 2008 and that, for the purposes of the law of negligence, its claim is a claim for pure economic loss.
The Third and Fourth Defendants ["Mr Pashouros" and "CSL"] now bring applications pursuant to CPR 3.4(2)(a) to strike out the claims against them and pursuant to CPR 24 for summary judgment.
At the end of the hearing I indicated that I would find for the Defendants and would give reasons later. This judgment sets out my reasons.
Factual Background
Sainsbury's needs no introduction.
Mr Pashouros is the inventor of a modular car park system known as the Condek system. The system's modular design enables it to be largely prefabricated and then speedily erected on concrete foundations. Speed of construction is appealing to Sainsbury's because the time taken to construct car parks leads to significant business disruption and loss of revenue when first building or later renovating a store. Although the precise extent of his design involvement would be in dispute at a trial, Mr Pashouros accepts for the purposes of his present application that he was the designer of the North Cheam car park. It is also clear that he conducted his business generally through limited companies called, successively, Rail Direct Ltd and Condek Holdings Ltd ["Condek"], the First Defendant in this action. The Second Defendant is another company associated with Mr Pashouros but was not involved with the North Cheam car park. Mr Pashouros also had a company called Condes Associates Ltd about which little is known.
CSL is a limited company (number 2018542) and is a member of the Capita group of companies. It has been joined by Sainsbury's because of its connection with a company called Nickalls Roche McMahon Limited (company number 03235963) ["NRM"]. Its connection arises by virtue of a series of transactions which took place in 2008. On 3 April 2008 another company in the Capita group, Capita Business Services Ltd (company number 02299747) ["CBSL"] acquired the entire issued share capital of NRM. On 20 June 2008, CSL acquired the business and assets of NRM. Then on 21 August 2008 CSL acquired the entire issued share capital of NRM from CBSL. The effective date for the agreements made on 20 June and 21 August 2008 was 4 April 2008. The net effect of these transactions is that, with effect from 4 April 2008, CSL owned the business and assets of, and the entire issued share capital in, NRM. It is important to note at the outset that during the hearing Sainsbury's accepted that it has no claim against CSL in respect of anything done or omitted to be done either by NRM or by CSL on or after 4 April 2008. It is therefore central to Sainsbury's claim that any liability on the part of CSL to Sainsbury's must be a liability that was originally a liability of NRM for which CSL is now responsible.
NRM is, so far as the Court is aware, still in existence. It has not been joined by Sainsbury's. Although there has been a suggestion that an application to join NRM may be made, no application has been made to date.
The reason why Mr Pashouros and CSL have been joined is that Condek is in liquidation and, so far as is known, does not have any insurance cover because of late notification of the claim. Condek went into Creditor's Voluntary Liquidation on 29 April 2013. The report for the Meeting of Creditors revealed a company with minimal assets and a total deficiency of £7,822 without making any material provision for any liability to Sainsbury's. Sainsbury's therefore has good reason to believe that any judgment against Condek will be worthless and wishes to pin liability upon one or more Defendants with financial substance.
The Procedural History
Sainsbury's engaged in pre-action correspondence with Condek, sending a Pre-action Protocol letter on 1 August 2012, which alleged that Condek had designed and constructed the car park pursuant to a contract with Sainsbury's. It says that Mr Pashouros was unhelpful in identifying which of his companies was directly involved with the North Cheam project and that he asserted (wrongly) that the contracting party was not Condek but the Second Defendant. It is not suggested that he said anything to indicate that he had ever acted relevantly in his personal capacity.
Proceedings were issued against the four Defendants on 30 October 2012, without any steps having been taken to comply with the Pre-action Protocol for Engineering and Construction Disputes in relation to Mr Pashouros in his personal capacity or in relation to CSL. On 16 April 2013 the action was stayed until 31 July 2013 to allow time to the parties to comply with the Pre-Action Protocol. Sainsbury's then sent Pre-action Protocol letters to Mr Pashouros in his personal capacity and to CSL.
In reply, Solicitors acting for Mr Pashouros denied that he had at any stage acted in his personal capacity, asserting that any representation or other dealings he had had with Sainsbury's had been as a representative of Condek or the Second Defendant. CSL's solicitors denied the existence of a duty of care and reserved their position on limitation.
In addition to serving Defences on 11 November 2013, Mr Pashouros and CSL issued Part 18 Requests designed to elicit clarity about the nature of the cases being brought against them. Sainsbury's provided limited responses to those requests, frequently asserting that its case was sufficiently pleaded or that the request was a request for evidence. It also served Replies to the Defences of Mr Pashouros and CSL. Mr Pashouros was dissatisfied with the pleading of the case against him and therefore issued a further request for information which remained unanswered on the date of the hearing: the Court was told that Sainsbury's thought it better to set out its case in its skeleton argument.
The Principles to be Applied
The principles to be applied on an application to strike out under CPR 3.4(2) and for summary judgment under CPR 24.2 are well known and are not controversial, though their application may be. The standard of proof is high. The phrase "no real prospect of succeeding" in CPR 24.2 is explained as meaning that the respondent must have a case which is better than merely arguable. Evidence is admissible on an application for summary judgment, with the overall burden of proof resting on the applicant. If the applicant adduces credible evidence in support of the application, the respondent comes under an evidential burden of proving some real prospect of success or some other reason for having a trial. In deciding whether the respondent has some real prospect of success the court should not apply the standard which would be applicable at trial, namely the balance of probabilities, to the evidence presented: and on an application for summary judgment the court should consider the evidence that could reasonably be expected to be available at trial. However, the Court is not required simply to take all evidence at face...
To continue reading
Request your trial
-
Avantage (Cheshire) Ltd v GB Building Solutions Ltd ((in Administration))
...of pleadings or assumed facts”. 28 Mr Hale also referred my attention to Sainsbury's Supermarkets Limited v Condek Holdings Limited [2014] EWHC 2016 (TCC) per Stuart-Smith J at [13] to the effect that: “Evidence is admissible on an application for summary judgment, with the overall burden ......
-
Vinci Construction UK Ltd v Eastwood and Partners (consulting Engineers) Ltd
...to prove that its claim has a reasonable prospect of success: Sainsbury's Supermarkets Limited v Condek Holdings Limited and Others [2014] EWHC 2016 (TCC) at [13]. iv) However, in reaching its conclusion the court must not conduct a “mini-trial”: Three Rivers District Council v Governor an......
-
National Iranian Oil Company v Crescent Petroleum Company International Ltd
...comes under an evidential burden to prove some real prospect of success or other reason for having a trial: Sainsbury's v Condek [2014] EWHC 2016 (TCC) § 13. 35. A respondent to a summary judgment application who claims that further evidence will be available at trial must serve evidence s......
-
John Innes Foundation v Vertiv Infrastructure Ltd (Formerly Emerson Network Power Ltd)
...summary of the applicable principles in paragraphs [13] to [16] of his judgment in Sainsbury's Supermarkets Ltd v Condek Holdings Ltd [2014] EWHC 2016 (TCC), a particularly helpful case as in that case, like this, the Defendants sought to strike out claims on the basis that no duty of care ......
-
The New Pre-action Protocol Has Come Into Force
...will impose costs consequences for non-compliance. For example, in Sainsbury's Supermarkets Ltd v Condek Holdings Ltd & Others [2014] EWHC 2016 (TCC), following a successful strike-out application, one party was awarded its costs on an indemnity basis as no good reason had been shown fo......
-
Table of cases
...Saigol v Cranley Mansion Ltd (2000) 72 Con Lr 54 II.10.150, II.13.34, II.14.154 Sainsbury’s Supermarkets Ltd v Condek holdings Ltd [2014] EWhC 2016 (TCC) II.10.36, II.10.75, II.10.108, II.13.75, III.20.81, III.26.21 Saint Gobain Building Distribution Ltd v hillmead Joinery (Swindon) Ltd [20......
-
Damages
...seised of legal rights, has an efective means of enforcing those rights: see Sainsbury’s Supermarkets Ltd v Condek Holdings Ltd [2014] EWhC 2016 (TCC) at [34], per Stuart-Smith J. 210 he Albazero [1977] aC 774 at 845, per Lord Diplock; Darlington BC v Wiltshier Northern Ltd [1995] 1 WLr 68 ......
-
Litigation
...excuse, has failed to implement the terms of the Pre-Action Protocol: see, eg, Sainsbury’s Supermarkets Ltd v Condek Holdings Ltd [2014] EWHC 2016 (TCC) at [77], per Stuart-Smith J. 83 Charles Church Developments Ltd v Stent Foundations Ltd [2007] EWHC 855 (TCC) at [38], per Ramsey J. 84 Wh......
-
Negligence
...that “the voluntary assumption of responsibility test is not mandatory”. 105 Sainsbury’s Supermarkets Ltd v Condek Holdings Ltd [2014] EWhC 2016 (TCC) at [17( v )], per Stuart-Smith J. 106 Smith v Bush [1990] 1 aC 831 at 862, per Lord Griiths; Phelps v Hillingdon London Borough Council [200......