Savi Rabilizirov v A2 Dominion London Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 05 April 2019 |
| Neutral Citation | [2019] EWHC 863 (QB) |
| Date | 05 April 2019 |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2018/0040 QB/2018/0204 |
[2019] EWHC 863 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
On appeal from the County Court at Central London
HHJ Bailey
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Farbey
Case No: QB/2018/0040 QB/2018/0204
Anneliese Day QC and Max Kasriel (instructed by Kennedys Law LLP) for the Appellant
Joseph Sullivan (instructed by Shoosmiths LLP) for the Third Party/Respondent
Adam Robb QC and Rebecca Drake (instructed by Clyde and Co LLP) for the First and Second Defendants/Respondents
The Claimant (who was not a party to the appeal) made no submissions
If this Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 5 February 2019, I handed down judgment in this case which is an appeal from an order of HHJ Bailey sitting in the Technology and Construction Court at the County Court at Central London. The effect of my judgment was encapsulated in my order of the same date by which the appeal was dismissed. I adjourned questions of costs for three weeks in order for the parties to endeavour to reach agreement.
In the event, the parties have reached agreement on some but not all issues. I have therefore considered submissions in writing which were filed in accordance with the timetable set out (on a contingency basis) in my order. No party has requested an oral hearing. I am grateful to the parties for their comprehensive written submissions.
The background to the case is set out in my February judgment and I do not propose to repeat it here. Should anyone who is not a party wish to consult the judgment, it bears the neutral citation number [2019] EWHC 186 (QB). The appeal before me concerned the liability of the appellant GCL (the fourth defendant below) to indemnify Durkan Limited (a respondent before me and a third party below) in relation to certain losses suffered by the claimant as the occupier of a newly constructed building in the St Pancras area of London. The landlord of the building was A2 Dominion London Ltd (the second defendant below and a respondent before me) until its reversionary interest in the property passed to A2 Dominion Homes Ltd (the first defendant below and a respondent before me). In short, the A2 companies employed Durkan as a contractor to carry out works to the building under the terms of the JCT Standard Form of Building Contract. In turn, Durkan sub-contracted groundworks to GCL. Those works were defectively performed, causing loss to the claimant from water ingress.
The claimant in the County Court has taken no part in the appeal, having already been compensated for his losses by other parties. He had claimed three heads of loss. The appeal was concerned with one head only, namely loss of rent arising from the claimant's inability to sub-let the premises. By the time of the trial before HHJ Bailey, the claim for loss of rent had been settled as between the A2 companies and the claimant for £340,000. Moreover, at an earlier hearing, HHJ Saggerson had allowed Durkan's application for summary judgment against the claimant on the grounds that Durkan owed no freestanding duty to him. As a result, Durkan ceased to be a defendant. However, Durkan was subsequently brought back into the litigation by the A2 companies as an additional party under CPR Part 20. Durkan in turn issued a Part 20 claim against GCL.
In the event, it was only necessary for HHJ Bailey to deal with the two Part 20 claims. The effect of his judgment was that GCL was required to pay to Durkan £340,000 in loss of rent. GCL's grounds of appeal were not limited to an assault on that conclusion but also sought to some degree to pass on liability for the claimant's losses to the A2 companies.
GCL's wide-ranging grounds of appeal caused Durkan to file a Respondent's Notice such that there was a cross-appeal before me. Durkan stated in the Respondent's Notice that it mounted no independent challenge to HHJ Bailey's order: the cross-appeal was made in order to make Durkan's position clear in relation to all permutations likely to arise in the appeal. In the event, it was not necessary for me to reach a conclusion about Durkan's cross-appeal.
It is now agreed that GCL will pay Durkan's costs of the appeal summarily assessed in the sum of £23,000. GCL has agreed to pay to the A2 companies £36,000 on account of costs pending detailed assessment which they both seek.
The principal point of dispute is between the A2 companies and Durkan. The A2 companies submit that Durkan should pay their costs on an indemnity basis. That submission rests on what the A2 companies say is a binding indemnity clause in the contract between A2 and Durkan for the work which formed the subject of the proceedings.
In considering the merits of A2's submission, I have considered written submissions on behalf of GCL dated 4 February 2019, 1 March 2019 and 8 March 2019. The A2 companies' submissions are dated 4 February 2019, 1 March 2019 and (twice) 8 March 2019. I have received submissions from Durkan dated 4 February 2019, 1 March 2019 and 8 March 2019.
...
To continue reading
Request your trial
-
Full Apex (Holdings) Ltd (Provsional Liquidators Appointed)
...Second, as a consequence of the conduct of the Petitioner. 12 The Company relies upon the authority Rabilizirov v A2 Dominion and Ors [2019] EWHC 863 (QB) per Farbey J at paragraph 16 in support of the proposition that when exercising the overriding discretion to award costs, the discretio......
-
Re Full Apex (Holdings) Ltd (Costs)
...Second, as a consequence of the conduct of the Petitioner. 12. The Company relies upon the authority Rabilizirov v A2 Dominion and Ors[2019] EWHC 863 (QB) per Farbey J at paragraph 16 in support of the proposition that when exercising the overriding discretion to award costs, the discretion......
-
Table of cases
...III.18.21 rabilizirov v a2 Dominion London Ltd [2019] EWhC 186 (QB) I.3.38, II.14.157, III.26.320 rabilizirov v a2 Dominion London Ltd [2019] EWhC 863 (QB) II.12.36, III.26.281 r & a Bailey & Co Ltd v Boccaccio pty Ltd (1986) 4 NSWLr 701 III.16.07 r & C Electrical Engineers Ltd v Shaylor Co......
-
Security for performance
...Pte Ltd [1992] 1 SLr 884 at 891, per Gp Selvam JC. 116 Including resultant legal costs: see, eg, Rabilizirov v A2 Dominion London Ltd [2019] EWhC 863 (QB). 117 Anglian Water Services Ltd v Crawshaw Robbins & Co Ltd [2001] BLr 173 at 190 [91], per Burnton J. 118 Under the JCT Standard Buildi......
-
Litigation
...at [42], per Ramsey J; Telemedia Paciic Group Ltd v Credit Agricole (Suisse) SA [2015] SGHC 170; Rabilizirov v A2 Dominion London Ltd [2019] EWHC 863 (QB) at [16], per Farbey J. 1175 See CPR Practice Direction to Part 44, paragraph 9.2. See also Gould v Armstrong [2002] EWCA Civ 1159 at [30......