Taylor Wimpey UK Ltd v Harron Homes Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 13 May 2020 |
| Neutral Citation | [2020] EWHC 1190 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 13 May 2020 |
[2020] EWHC 1190 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
TECHNOLOGY AND CONSTRUCTION COURT (QB)
Rolls Building
Fetter Lane
London, EC4A 1NL
THE HONOURABLE Mr Justice Fraser
Tom Owen (instructed by Dentons UK and Middle East LLP) for the Applicant
Lucie Briggs (instructed by Clarion Solicitors Ltd) for the Respondent
Hearing date: 7 May 2020
Introduction
These proceedings concern an application, dated 13 March 2020, in which the applicant Taylor Wimpey UK Ltd (“TW”) seeks pre-action disclosure under CPR Part 31.16 against the respondent, Harron Homes Ltd (“HH”). That application notice was issued on 13 March 2020, which was 10 days before the national lockdown was imposed on 23 March 2020, with all that has entailed. The hearing was therefore conducted remotely by the court using Skype for Business.
The application notice is somewhat unusual in that it sought to have the application, which was almost certainly (or at least very likely) to be contested, determined without any hearing at all. Specifying that such applications should be dealt with “without a hearing” by ticking that box in Section 5 of the Application Notice N244 is never likely to be constructive, when the subject matter of applications is highly contentious, which this one was likely to be. It is not helpful to the administration of court business.
There is another feature of this application which is that the factual circumstances of the dispute between the parties, as they were presented to the court in early May after evidence from HH had been served, are rather different to how these were dealt with in the evidence lodged by TW in support of the application. Whilst in inter partes hearings of this type, there is not the same duty of full and frank disclosure that there is upon a party who, for example, comes to the court ex parte (which is a high burden, as the other side will not be present or represented) it is not helpful for an applicant to fail to include or address a central factor that will be significant and relevant to the application, particularly where (as here) the court's discretion is involved. The factor to which I refer in this case is the service by HH of a notice to refer the dispute to expert determination. This occurred prior to the issuing of the application; on one view, the application was issued in response to that, although whether that is correct or not does not matter. HH had also given written confirmation to TW that court proceedings would not be commenced; TW had also refused to engage in the expert determination process, notwithstanding its inclusion in the Collaboration Agreement. This is a subject to which I will return.
Regardless of that, the substantive application was heard by me on 7 May 2020. At the conclusion of that hearing, I indicated to the parties the outcome of the application, and explained that I would give detailed reasons for my decision in writing. These are those reasons.
This judgment on the application is in the following sections.
A. The application
B. The agreement between the parties
C. The law
D. The jurisdictional threshold
E. Discretion
F. Conclusion
A. The application
The application is for an order under section 33(2) of the Senior Courts Act and CPR 31.16 for disclosure and inspection of documents in a number of different categories. This is therefore an application for pre-action disclosure. There are no substantive legal proceedings underway between HH and TW, although as I have said, HH is seeking to have the dispute resolved by means of the contractual mechanism to resolve disputes. I deal with the categories of documents themselves at [7] below. The terms of the application seek not only disclosure and inspection of the documents contained in these categories, but also that HH be ordered to specify any of the documents in each of the three categories that are no longer in their control. An order is also sought that HH also identify what has happened to documents that are no longer in their control, together with identifying those documents to which HH claims a right or duty to withhold inspection.
The categories of documents which are sought are as follows:
(1) Certain design documents: the iD Civils design drawings and the design calculations and correspondence concerning the designed allowances and flows from the Retained Land. The Retained Land is explained at [16] below.
(2) The as-built drawings of the drainage installed by or on behalf of HH.
(3) The adoption correspondence between HH and Yorkshire Water. Yorkshire Water is the statutory undertaker for the area where the Retained Land is situated, and this is explained further at [18] to [20] below.
Some of the documents are relatively limited in scope, for example in category 3. Category 1 is far wider. The entity called iD Civils was engaged by HH as a design specialist. It is accepted by TW that is already has 35 specific drawings prepared by that practice, but it wishes to have far more.
The application is supported by three witness statements by Mr Akinbode, a partner in the firm of solicitors representing the applicant TW. The first two of these statements are dated 13 March 2020, and 28 April 2020. That second statement is also said to have narrowed or clarified the categories of documents sought, and whereas there were originally said to be four categories (set out in paragraph 3.2 of Mr Akinbode's first statement) there are now the three I have identified at [7] above, these being identified in paragraph 1.6 of his second statement. The application is opposed by HH, and a witness statement in response was served dated 4 May 2020, that statement being made by Mr Morrison, a partner in the firm of solicitors representing the respondent HH.
The dates of the different witness statement do not, however, tell the full story in at least one respect. In the skeleton argument served for HH, counsel for HH, Ms Briggs, stated that Mr Akindobe's second statement, which clarified the documents sought, “was served on Monday 4 May (the day upon which Harron was due to serve its evidence in response). It is not clear why this clarification was not given in his first statement.”
Given the hearing itself had been set down for 7 May 2020, a decision by TW to serve a statement (which was, on its face, dated almost one week earlier than it was served in any case) on the Monday of the week of the hearing, and on the day when HH was due to serve its own evidence in response, could hardly be said to be helpful. Whether this delay in serving the statement was inefficiency – which itself would have been unhelpful – or litigation game playing, is not entirely clear.
Mr Morrison's statement did however add a considerable, and in my judgment essential, layer of detail to the underlying dispute between the parties that was relevant to the application itself. Although Mr Akindobe's second statement referred to the issuing by HH of a notice of dispute under the Collaboration Agreement dated 10 March 2020 to seek expert determination of the dispute (which it can be seen predated his first statement) all that is said in the second statement, in terms of progress of that reference, is that “HH never appointed an expert” either in that reference, or an earlier one where the notice was dated 30 October 2019. Mr Morrison's statement, on the other hand, together with the correspondence exhibited to it, makes it clear that TW was, as of the date of that statement and the date of the application, refusing to agree to the appointment of an expert under the notice of 10 March 2020. Nor would TW agree to the appointment of an expert under the earlier notice either. These are, in my judgment, highly material facts. The expert determination procedure is also of central relevance to the application. This subject is barely addressed in the evidence in the first two witness statements submitted by TW to support its application. Indeed, TW's refusal to engage in that expert determination, and to challenge it on the basis of alleged lack of jurisdiction on the part of the expert, is simply not addressed at all.
After Mr Morrison's statement was served, a further witness statement was served from Mr Akindobe. This was his third statement, and is dated 5 May 2020, very close to the hearing. That statement included some assertions as to the law, and quoted extracts of the Collaboration Agreement between the parties (which I deal with in detail below). It also went into considerable detail concerning the chronology of the dispute from October 2019 up to the date of the statement, and (for the first time, at least so far as evidence from TW is concerned) made it clear that TW was refusing to engage in the expert determination procedure expressly included in the Collaboration Agreement, taking what is said to be a jurisdictional objection. This, as I have explained, was missing from each of his first two statements.
I gave counsel for TW, Mr Owen, an opportunity to explain this at the hearing itself. He stated that it was understandable that TW's solicitors had not dealt with this subject in any detail, due to the detail of the chronology of the dispute between the parties. He also explained that neither of the references by HH of the dispute to expert determination “had been pursued”. I do not consider that this is the correct way to describe a dispute resolution process which HH initiated, twice (once in October 2019, and once in March 2020) and in respect of which TW refused to agree to the nomination of...
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