Simon Bain Building Services Ltd v Ms Jenna Cardone
| Jurisdiction | England & Wales |
| Judge | Master Teverson |
| Judgment Date | 17 November 2023 |
| Neutral Citation | [2023] EWHC 2916 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2022-001485 |
[2023] EWHC 2916 (Ch)
Master Teverson
Case No: BL-2022-001485
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (Ch)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Stephen Bishop (instructed by New Media Law LLP) for the Claimant
Brenna Conroy (instructed by Charles Russell Speechlys LLP) for the Defendants
Hearing date: 5 October 2023
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.
This Judgment was handed down remotely at 10.30am on 17 November 2023. It has been sent by email to the parties' legal representatives and to National Archives.
Master Teverson (sitting in retirement)
This is my reserved judgment following the hearing before me on 5 October 2023 of three applications by the Defendants. In the order in which they were issued, the applications are;-
(1) An application dated 21 March 2023 pursuant to CPR 13 to set aside the default judgments entered on 16 March 2023 against the Defendants (“the Default Judgment Application”);
(2) An application dated 28 June 2023 asking the court (i) to treat the application of 21 March 2023 as an application under CPR Part 11 by rectifying an error of procedure said to be capable of rectification under CPR r. 3.10; (ii) to extend time and/or grant relief from the sanctions in CPR r.11(4) and 11(5) in respect of making an application to challenge jurisdiction; and (iii) an order declaring that the court has no jurisdiction to try the claim or should not exercise any jurisdiction which it may have (“the Jurisdiction Application”); and
(3) An application dated 2 October 2023 for an extension of time for filing the Acknowledgement of Service and/or for relief from sanctions pursuant to CPR r.11(2) (“the Acknowledgement of Service extension of time application”).
The dispute between the parties arises out of a construction contract for works at 24 Northumberland Place, London W2 5BS (“the Property”). The Claimant, Simon Bain Building Services Limited, was the contractor. The Defendants, Ms Jenna Cardone and Mr Kevin O'Keefe, a married couple, were the employers.
The claim
The Claimant's claim is for the balance of monies said to be owed under the construction contract. The Claimant claims that the amount owing to it is £250,112.78 together with interest and costs. The sum is claimed under what is alleged to have been a cost-plus agreement under which the Claimant would charge cost plus 20% in respect of labour and cost plus 15% in respect of materials. The Claimant claims this agreement was reached at meetings held on 27 May 2016 and on 3 June 2016 at the Property. This is referred to in the Particulars of Claim as the “Costs Plus Variation”.
The Defendants deny that any cost-plus arrangement was ever entered into between the parties. The Defendants aver that the contract was a lump sum contract which was originally contained in or evidenced by a quotation sent by email by the Claimant to the First Defendant on 8 October 2014 (“the Quotation”). The Defendants say that thereafter the parties agreed a revised lump sum of £496,000 plus VAT (“the Revised Quotation”) to include a Mansard Roof Extension for which planning consent had been obtained after the Quotation.
The Defendants say they moved back into the Property on 31 August 2016 and that after they had taken back possession of the Property, no further substantive works were carried out.
The Defendants say they have paid the Claimant the sum of £465,008.88 to date. They say they have also made payments to external contractors and that the sums paid exceed the value of the works carried out by the Claimant.
The Claimant in reliance on an expert's report prepared by Mr Ryan Greening dated 13 December 2022 says that the amount reasonably payable on a cost-plus basis is £715,071.66. The Claimant gives credit for the sum of £464,958.88 which is the amount it says has been paid by the Defendant leaving, the Claimant claims, an amount owing of £250,112.78.
Alternatively, the Claimant claims the sum of £250,112.78 as a quantum meruit. In the further alternative, the Claimant claims that it is entitled to restitution in the sum of £63,175.83 being the difference between its actual incurred costs and the sum paid by the Defendants.
The procedural history
The Claimant began pre-action correspondence on 26 January 2017. The Claimant initially instructed Russell-Cooke LLP. The Defendants originally instructed Child & Child to represent them. In the course of pre-action correspondence the Defendants changed solicitors and instructed Charles Russell Speechlys (“CRS”) on or around 8 November 2019.
Pre-action correspondence then continued between Russell-Cooke and CRS. The last letter to CRS from Russell-Cooke was dated 8 January 2020. This was replied to in a letter from CRS to Russell-Cooke dated 27 January 2020. In that letter CRS stated that the Defendants would not engage in further correspondence with the Claimant until further explanation and relevant supporting documentation was provided. CRS stated that it would be entirely disproportionate for the Claimant to issue proceedings at that time. CRS did however confirm that it was instructed to accept service of proceedings on behalf of the Defendants as follows:- “Nonetheless, we confirm that we are instructed to accept service of proceedings on behalf of our clients”.
In or around August 2020, the Claimant changed solicitors from Russell-Cooke to its current solicitors, New Media Law LLP (“NML”). NML wrote to CRS on 26 February 2021. That letter made reference to CRS's letter dated 27 January 2020.
CMS replied to NML's letter dated 26 February 2021 by a letter dated 22 March 2021. NML did not reply until a letter dated 1 September 2021. CRS responded on 4 October 2021. CMS did not receive any response to that letter or any further correspondence from NML until after issue of the claim form.
The claim form was issued some 11 months later on 15 September 2022. It was not served at that time. Instead the Claimant instructed Mr Ryan Greening of Bennington Green Limited to provide a quantum report to assess the value of the Claimant's works to the Property upon the basis of a cost-plus agreement.
On 15 February 2023 a certificate of service was filed recording that the Claim Form, Particulars of Claim and Expert Report of Ryan Greening was served on 10 January 2023 on the Defendants at the Property referred to as being the Defendants' usual residence.
On 20 February 2023 CRS acknowledged service on behalf of the Defendants. They ticked the box stating that the Defendants intended to contest jurisdiction.
The 14 day period for making an application under CPR Part 11 expired on 6 March 2023.
On 16 March 2023 judgments in default of defence were entered against the Defendants for an amount (in respect of damages and interest and costs) to be decided by the Court.
By application notice dated 21 March 2023 the Defendants applied pursuant to CPR Part 13 to set aside the default judgments entered on 16 March 2023 against them.
The application notice in box 3 in answer to the question “What order are you asking the court to make and why?” stated:-
“1. The Defendants seek an order (a draft of which is attached) pursuant to CPR 13 to set aside the Default Judgments entered on 16 March 2023 in respect of these proceedings.
2. The Defendants have a real prospect of successfully defending the claim, as set out in the witness statement and exhibit of Andrew Keeley dated 21 March 2023 in support of this application.
3. There are good reasons why the Default Judgments should be set aside or varied or why the Defendants should be permitted to defend the claim, as set out in the witness statement and exhibit of Andrew Keeley dated 21 March 2023 in support of this application.”
The draft order attached to the application sought orders that:-
“1 The default judgments entered on 16 March 2023 be set aside on the grounds that the Defendants have a real prospect of defending the claim [and/or] there are good reasons why the judgments should be set aside or varied, or why the Defendants should be permitted to defend the claim.
2. The Defendants have 14 days from the date of this Order to file their Defence to the Claimant's claim.
3. The Claimant has 14 days from the service of the Defence to file a Reply to the Defence.
4. Costs in the case.”
The application was supported by the first witness statement of Andrew Keeley, a partner of CRS, dated 21 March 2023. In paragraph 2 Mr Keeley set out the background to the application. In paragraph 2.3 he said he was instructed that the Defendants (who are American) no longer reside at the Property, having returned to the United States of America on 15 August 2022. In paragraph 2.5 Mr Keeley said that for the reasons explained below the claim form should have been served on CRS instead of at the Property. In paragraph 2.6 Mr Keeley said he was instructed that the Defendants no longer own or reside at the Property and consequently the Defendants did not receive the claim form until Tuesday 14 February 2023, when the letter was forwarded from their old address. In paragraph 2.7 Mr Keely said CRS were instructed promptly by the Defendants to respond. He said that CRS filed an acknowledgement of service on behalf of the Defendants on Monday 20 February 2023, indicating the Defendants' intention to contest jurisdiction.
In paragraph 2.8 Mr Keeley gave the following explanation why no further procedural steps had been taken by the...
To continue reading
Request your trial