Tinseltime Ltd v Eryl Roberts (First Defendant) M & Jt Davies (Second Defendant) Denbighshire County Council (Third Defendant) Welsh Assembly Government (Fourth Defendant)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Stephen Davies |
| Judgment Date | 13 May 2011 |
| Neutral Citation | [2011] EWHC 1199 (TCC) |
| Docket Number | Case No: 9MA50096 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 13 May 2011 |
[2011] EWHC 1199 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
His Honour Judge Stephen Davies
SITTING AS A JUDGE OF THE HIGH COURT
Case No: 9MA50096
Martin Budworth (instructed by Gavin Edmondson Solicitors, Northwich) for the Claimant
Peter Butler (of GHP Legal, Wrexham) for the First Defendant
Wilson Horne (instructed by Barlow Lyde Gilbert LLP, Manchester) for the Second Defendant
Karina Champion (instructed by Weightmans LLP, Liverpool) for the Third Defendant
Richard Coplin (instructed by Hugh James, Cardiff) for the Fourth Defendant
Hearing dates: 28–30 March 2011
Date of draft judgment: 5 April 2011
Introduction
This is the judgment on the preliminary issue as to whether or not the claimant has a valid cause of action in nuisance or in negligence, and if so on what basis.
The claim as advanced by the claimant, Tinseltime Limited ("Tinseltime"), in the final version of the draft Re-Amended Particulars of Claim ("RAPC") is that it is entitled, pursuant to an assignment made 1 December 2007 ("the assignment"), to maintain a claim for damages for negligence and/or in nuisance enjoyed by a company, now dissolved, known as Fountain of Youth Limited ("FOY").
The essential case which is advanced by the claimant is that in February 2007 work was being carried out by the First Defendant ("Roberts"), as part of a road building scheme known as the A5 Pont Melin Rhug Bridge project in Clwyd, which involved the demolition of part of a building known as "The Old Creamery". The project had been commissioned by the Fourth Defendant, the Welsh Assembly Government ("WAG"), the works had been arranged on its behalf by the Third Defendant, Denbighshire County Council ("Denbighshire"), and had been subcontracted to the Second Defendant ("Davies"), who in turn had instructed Roberts to carry out part of those works. It is said that FOY was the licensee and in exclusive occupation of the other part of the building ("the premises"), which it used for the purpose of its tinsel making business. It is said that when Roberts was engaged in cutting concrete blocks on the adjacent land, to be used to infill existing openings in the dividing wall between the two parts of the building, dust was produced by the cutting operation which was carried into the premises and settled on machinery situated on those premises, owned by FOY and used for the purposes of its business. It is said that this dust caused significant damage to the machinery which had to be repaired and, until repairs could be completed, there was a loss of production resulting in a loss of sales.
In order to determine the preliminary issue, it is necessary to resolve the following questions:
(1) Whether or not at the relevant time FOY had a sufficient interest in the premises, so as to be able to maintain a claim in nuisance.
(2) Whether or not at the relevant time FOY owned the machinery at the premises and used the machinery for the purpose of a tinsel making business which it carried on from the premises, so as to be able to maintain a claim in negligence.
(3) Whether or not any claims which FOY had against any of the defendants were effectively assigned by the assignment.
The trial of the preliminary issue was ordered by the court at a hearing on 15 October 2010. At that time the position was as follows:
(1) The claimant had made an application to amend the existing Particulars of Claim, seeking to join in Davies, Denbighshire and WAG as additional defendants, and to make other substantial alterations to its existing statement of case, including increasing its claim for loss of profit to a claim said to be "in the region of £1,400,000".
(2) The existing defendant, Roberts, had made an application to strike out or obtain summary judgment on the claim, alternatively for specific disclosure and/or security for costs.
The original Particulars of Claim dated 18 February 2009 had been pleaded on the basis that it was Tinseltime itself which was the occupier of the premises, the owner of the machines and the undertaker of the business from the premises at the relevant time, so that the loss was Tinseltime's own loss. The draft amended Particulars of Claim dated 24 August 2010, produced in support of the application to amend, continued to assert the claim on the same basis as the original version. However, when all those assertions were contested by Roberts in the context of his application for summary judgment, on the basis that the evidence showed that the licence was held either by FOY or by Mr Peter Ridgway, that FOY was the owner of the machines and the undertaker of the business at the relevant time, the claimant's solicitors admitted (in a witness statement made by Mr Gavin Edmondson on 17 September 2010) that what Roberts was saying was correct, and that it would be necessary further to amend to reflect this. At this stage it does not appear that the claimant had disclosed the existence of the assignment to Roberts. However at the hearing itself counsel for the claimant said, on instructions, that the admissions made by Mr Edmondson had been wrongly made and reflected a misunderstanding of the position, and that the claimant's case continued to be that it was Tinseltime which was entitled to claim. It was in those extremely unsatisfactory circumstances that it appeared appropriate to resolve these issues by trying the basis of the claimant's claims as a preliminary issue.
Even after the order of 15 October 2010 the basis for the claims being advanced by the claimant continued to change. Thus:
(1) The further draft amended Particulars of Claim served on 3 November 2010 which was required, in accordance with that order, fully to particularise the claimant's case in relation to the preliminary issue, asserted the claim on the basis that at the relevant time it was the licensee of the premises, the operator of the tinsel making business therefrom, and that it held the machinery on loan from FOY. The primary case asserted was that it was Tinseltime's exclusive occupation as licensee and Tinseltime's operation of the business which entitled it to advance the claims. The claimant referred to and relied upon the assignment in order to entitle Tinseltime to pursue the claim for damage to the machinery; it also sought to rely on it as a fallback "if the defendants contend and prove that [FOY] was still in occupation of the premises and/or still trading" at the relevant time.
(2) In the Further Information provided on 9 December 2010, in response to a request made by Roberts' solicitors, it was said that the licence relied upon was a licence in writing made on one January 2007 granted to Mr Peter Ridgway, but that at around the same time it had been agreed between the licensor's representative and Peter Ridgway that Tinseltime could use the premises.
(3) In the Replies to the Defences, served on 21 January 2011, there was a fundamental shift in the case being advanced, so that paragraph 1 of the Reply to Robert's Defence pleaded as follows:
"In the light of the Part 18 answers the claimant accepts that it was not operating from the premises at the material time. The handover of business from [FOY] to the claimant did not take place until approximately August 2007. The claimant's claim is pursued under the assignment dated 1 December 2007. For the avoidance of doubt, at the time of the damage [FOY] was the owner of and in possession of the machines, was the licensee in exclusive occupation/possession (the licensee was stated as Peter Ridgway of [FOY]) and was trading in the tinsel-making business. Its cause of action in respect of the matters complained of was assigned to the claimant who thereby steps into its shoes."
(4) In his witness statement made on 19 January 2011 Peter Ridgway said, at paragraph 6, that "On 1 January 2007, I entered into a licence with the office of Lord Newborough in respect of the property known as 'The Old Creamery'" and, at paragraph 9, that "I did not assign or transfer the licence to any other person, I used the licence in accordance with clause 3 ("general storage and manufacture of Christmas goods"), which was through my companies".
(5) On the first day of trial, Mr Budworth, counsel for the claimant, produced a revised draft re-amended Particulars of Claim which was broadly consistent with the case pleaded in the Replies to Defences. Following some further objection from the defendants to the detail of that draft, a further version was produced, verified by statement of truth signed by Peter Ridgway, which set out the case as finally being advanced by the claimant. Paragraph 3.1 is in the following terms:
"For the avoidance of doubt, at the time of the damage, [FOY] was:
(1) the owner of and in possession of the machines,
(2) as a matter of construction of the License agreement and as a matter of fact the licensee in exclusive occupation and possession of the premises (notwithstanding the reference to 'Peter Ridgway of [FOY]' the licensee was not Mr Ridgway personally) and was trading in the tinsel making business."
By the order of 15 October 2010 I ordered that the claimant's application to amend and Roberts' application to strike out / for summary judgment should be adjourned generally, permission to restore. No specific application for permission to restore was made either by the claimant or by Roberts prior to the hearing. However on 1 March 2011 WAG made an application for summary judgment on the basis that it asserted that the...
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Tinseltime Ltd v Eryl Roberts and Others (Defendants/Applicants) Gavin Edmondson
...personally) and was trading in the tinsel making business." 12 Having heard evidence and received submissions I produced a judgment [2011] EWHC 1199 (TCC), reported at [2011] BLR 515 in which, in summary, I held that: (i) in February 2007 FOY was the licensee, the owner of the machinery and......