South West Water Services Ltd (Plaintiff) v International Computers Ltd
| Jurisdiction | England & Wales |
| Judge | JUDGE TOULMIN |
| Judgment Date | 05 July 1999 |
| Judgment citation (vLex) | [1999] EWHC J0705-7 |
| Docket Number | 1997-ORB-No.232 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 July 1999 |
[1999] EWHC J0705-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
His Honour Judge Toulmin C.m.g. Q.c.
1997-ORB-No.232
MR. S. TOMLINSON Q.C. and MR. S. PHILLIPS (instructed by Messrs. Manches & Co.) appeared on behalf of the Plaintiff.
MR. G. LEGGATT Q.C. and MR. D. SWEETING (instructed by Messrs. Masons) appeared on behalf of the Defendant.
(As approved by the Judge)
This is an application by South West Water for an order for an interim payment in respect of damages.
Order 29, r.11(1) of the old rules states:
"If on the hearing of an application under r.10 in an action for damages the court is satisfied that … (b) the plaintiff has obtained judgment against the respondent for damages to be assessed, the court may, if it thinks fit and subject to para.2——"
(which I do not think applies in this case)
"—order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence or any set-off, cross-claim or counter-claim on which the respondent may be entitled to rely."
The new rule, which is CPR Part 25, para.25.7, states:
"(1) The court may make an order for an interim payment only if….(b) the claimant has obtained judgment against the defendant for damages to be assessed or for a sum other than costs to be assessed."
The rule goes on to say:
"(4) the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment."
So under both the old and the new rules the court may make an order for an interim payment for such sum as may be just, but the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.
In this case it is accepted by ICL that South West Water is entitled to recover, as an interim payment, the amount which it has paid to ICL under the contract together with interest up to the date of judgment on 29th June 1999, which amounts to a total sum of £2,571,849.67.
The dispute relates to the claim made by South West Water for external and internal charges by way of support costs claimed originally in the sum of £356,525 for external charges and £600,098 for internal charges. South West Water's expert has analysed the figures and reduced the amount of £956,000-odd which had been claimed to a sum of £274,869 in respect of external charges and £576,883 in relation to internal charges. That is the sum of £851,752 which South West Water now claims by way of a further interim payment. In claiming the whole sum it says that it satisfies the requirement that it should only be a reasonable proportion of the likely amount of the final judgment, because it says that there are substantial additional claims on which it is likely to succeed, at least in part.
The defendant says that the claimant has not established what sum is likely to be recovered by way of support costs and therefore this would prevent it in any event from recovering any sum. It points to the fact that
Mr. Haberman, the defendant's expert, says that he has not yet seen documentation or witness statements. It claims that the stage has not yet been reached where figures have been established sufficiently to be included in any quantum payment. Secondly it says in relation to the internal charges that the claimants have not established that if its employees had not been employed on this project they would not have been able to have been employed productively elsewhere and therefore it is not clear at all that South West Water will be able to establish any loss in relation to the time spent by these employees.
I have to consider the matter on the basis of what is the likely amount of the final judgment in relation to this aspect of the case—that is, the support costs—and make an order for an interim payment of not more than a reasonable proportion of the likely amount. I am in the end bound to do an exercise which arrives at a figure which is just in all the circumstances. It seems to me that the external charges are likely to be substantially established and that the claimants are likely to recover substantially the amount claimed. As far as the internal charges are concerned these are inevitably more difficult to assess. It may well be that there will be a significantly smaller proportion of the £576,883 which will ultimately be recoverable. Having heard the evidence in this case over many days, I am quite satisfied that a substantial sum is likely to be recovered.
In all the circumstances it seems to me that the order which the court should make is for an interim payment in the sum of £3 million. This figure allows £428,000-odd to be added to the sum which it is agreed should be due as an interim payment, which is within a very small amount 50% of that which is claimed. Having considered separately the question of the internal charges and the external charges, that seems to me to be the figure which is fair and just in all the circumstances both under the old rules and under the new rules.
L A T E R:
COSTS
Under the old law the normal rule is that the costs shall follow the event. Under the new rules the court's discretion on costs under Part 44 is more detailed, but the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party and that in deciding what order, if any, to make about costs the court must have regard to all the circumstances, including the conduct of the parties—whether a party has succeeded on part of his case, even if he has not been wholly successful. The conduct of the parties under Part 44(3) at para.5 includes the conduct before as well as during the proceedings—whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue, the manner in which they pursued or defended that case, whether the claimant had succeeded in his claim in whole or in part or has exaggerated his claim.
In this case I am asked in relation to a number of different categories to make an order that the defendant pays costs on an indemnity basis. One of the matters which,
I should take into account on the other side, that is against making an award of indemnity costs which carries with it an element of fault, is the extent to which the parties have cooperated in bringing the case to trial and the way in which the parties have cooperated at trial in order that the costs of the trial are proportionate to the claim and that the amount of time spent on the trial is not greater than was reasonably necessary. I was able to start off the judgment in this case by paying tribute to counsel and solicitors for their sensible attitude to preparation and presentation in relation to this case. In most respects that was a matter which applied to solicitors and counsel on both sides.
There are in a complex case of this nature a number of issues which are likely to be investigated but in the end not to be pursued. One important area of this case is the question of expert witnesses. In the event, apart from a short agreement, there was no need for me to be referred to any of the computer expert evidence in this case. It is said by the plaintiff that the expert evidence related to issues raised by the defendant which in the event were not pursued. If the expert on one side only had raised questions which were not pursued and went beyond the real issue in the case and caused substantial unnecessary expenditure, it might have been appropriate for the other side to raise the...
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