Townsend v Stone Toms & Partners
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS,SIR DAVID CAIRNS,LORD JUSTICE EVELEIGH |
| Judgment Date | 11 May 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0511-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 81/0189 |
| Date | 11 May 1981 |
[1981] EWCA Civ J0511-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
CIVIL DIVISION
On appeal from Order of His Honour James Leonard, sitting as a Deputy Circuit Judge for Official Referee's Business.
Royal Courts of Justice,
Lord Justice Eveleigh,
Lord Justice Watkins and
Sir David Cairns
81/0189
Mr A.J. BUTCHER, Q.C. and Mr D.G. VALENTINE (instructed by Messrs Walters Fladgate & Co.) appeared on behalf of the Appellants (Plaintiffs).
Mr D.H. GARDAM, Q.C. and Mr MICHAEL HARVEY (instructed by Messrs Kennedys) appeared on behalf of the Respondents (First Defendants)
The Plaintiffs in this case were building owners who sued architects and plumbing contractors and also the main building contractor in respect of their work in relation to reconstruction of the Plaintiffs' house. The pleadings in the case are, as the learned Deputy Judge Leonard stated, complex and voluminous. Fortunately, the point that arises on this appeal is a short one, and I therefore do not propose to go into the details of the Statement of Claim, but to summarise it in the way that was done before the learned Deputy Judge by Counsel, and for that purpose will quote from the judgment. The learned Judge said: "I think it is sufficient to accept the summary made by Mr Butcher for the plaintiffs, and his summary of claims made against the first defendants"—that is to say, the architects—"is as follows: Category one, defective design; that is a case against the first defendants as architects only. The second category is defective supervision by the first defendants, resulting in bad work, which the third defendants had done and were sued for, getting passed and which will have to be made good. The damage claimed is the same as was claimed against the third defendants, but the breaches of duty arise from different contracts. The third category is over-certification by the architects in various respects, including certification in respect of bad work. This claim is primarily against the first defendants, but it may also be recovered from the third defendants. In the latter event there is still a claim for interest because the plaintiffs have been kept out of their money. There is also a fourth category which Mr Butcher added and which he specified thus, claim for loss of amenity which will break down, he says, under one head or another, though there is likely to be some overlapping".
One may shortly state the position, then, as follows. The second Defendants do not enter into the picture for the purpose of this appeal. The first Defendants are architects, and against them it is alleged, in so far as it is relevant for this appeal, that they failed properly to supervise the work. Against the third Defendants, the builders, in so far as is relevant for this appeal, it is alleged they did work badly and are liable therefore to the Plaintiffs. In so far as lack of supervision is claimed, it is also claimed in the Statement of Claim that the first Defendants should be liable in respect of loss of amenities suffered by the Plaintiffs. I do not find it necessary for this appeal to go more deeply into the precise pleading or the causes of action, or whether or not the second Plaintiff is suing in contract or tort or both, because the position has come down to a quite narrow one, namely: Where there is overlapping of the items of damage alleged as a result of bad workmanship and also alleged to be the subject of a failure to supervise, should the action be stayed when money paid into Court by the builder has been taken out?
The builder in this case, the third Defendant, put in a Defence denying liability, and also counterclaimed in respect of his charges to the extent which he alleged that they had not been paid. He made two payments in, the second of which was accompanied by a notice dated the 13th November 1980 and reads as follows: "Take notice that John Laing Construction Limited, the Third Defendants, have increased the payment into Court of £7,500 made on the 31st January 1980 and have paid the further sum of £22,500 into Court, the said £22,500 together with the said sum of £7,500 is in satisfaction of all the causes of action in respect of which the Plaintiffs claim and after taking into account and satisfying the above-named Defendants' cause of action for £32,363.92 in respect of which it counterclaims". By a notice dated the 4th December the Plaintiffs took out the £30,000 (and I quote from their notice) "in satisfaction of the causes of action in respect of which it was paid in and in respect of which the Plaintiffs claim against that Defendant". Subsequently, an application was made to His Honour Judge Newey on the 17th December 1980, when he ordered by consent that there should be payment out in the terms of the notice and the acceptance. He further ordered that the first and second Plaintiffs recover against the third Defendants their costs of the action attributable to the first and second Plaintiffs' claim, and that judgment be given in favour of the first and second Plaintiffs against the third Defendants, and the third Defendants' counterclaim be dismissed, in accordance with the terms of the payment in.
The matter then came on for hearing before the learned Deputy Judge on the 30th April of this year, when a preliminary point was taken, to the effect that in so far as there were mutual or overlapping items in the claim against the architect and the builder in relation to lack of supervision and bad workmanship, the action against the architect should be stayed, on the grounds that the payment in by the third Defendant had been accepted.
In support of that application—indeed, the only basis for it—was the wording of Order 22, rule 3, paragraph (4), which reads as follows: "On the plaintiff accepting any money paid into court all further proceedings in the action or in respect of the specified cause or causes of action, as the case may be, to which the acceptance relates, both against the defendant making the payment and against any other defendant sued jointly with or in the alternative to him shall be stayed". It is not wholly clear to me in this case whether it was alleged that the architect was sued jointly or in the alternative—that is to say, in the argument before Judge Leonard—but, as I understand it, the contention in this Court is that the expression "sued jointly" is apt to cover the case against the architect because it is said in respect of certain items, whilst in strict law the cause of action is a separate one, the same damage was covered by the claim. Judge Leonard took the view that Order 22, rule 3, paragraph (4), did apply and in consequence Counsel worked out in detail the particular items in the Statement of Claim that would be covered by such a decision. In other words, where there was an overlapping of the claim, Counsel drafted the appropriate Order, which subsequently became the Order of the Court, to stay the action against the architect in respect of those items. It is against the judgment on that preliminary matter that the Plaintiffs now appeal to this Court. The point is a short one: What is the meaning of Order 22, rule 3, paragraph (4), in particular the words "sued jointly with or in the alternative to him"?
On behalf of the Respondent it has been submitted, as I have said, that "sued jointly" does not mean "sued in respect of joint liability"; it means simply joined together in the same proceedings as defendants, or, if any limitation is to be put upon it, sued together in the same proceedings as defendants in respect of the same damage.
Some support was invoked from a note in the White Book...
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Jameson and Another v Central Electricity Generating Board
...accept a payment into court made by the second defendant, and continue against the first. 10 Thus in Townsend v. Stone Toms & Partners [1981] 1 W.L.R. 1153 (a case in contract, but the same principle applies) the plaintiffs brought proceedings against a builder for defective work, and again......
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Heaton v AXA Equity & Law Life Assurance Society Plc
...amounts to satisfaction of the full value of his several claims, should not be expected to release the others; see, for example Townsend v Stone Toms & Partners [1981] 1 WLR 1153…" Lord Justice Auld went on, at pages 338E-342D, to consider whether the use of the words "in full and final sat......
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Jameson and Another v Central Electricity Generating Board
...to satisfaction of the full value of his several claims, should not be expected to release the others. See, for example, Townsend v. Stone Toms & Partners (No. 1) [1981] 1 WLR 1153, CA, where the Court held, in overlapping claims by a building owner against a builder for defective work and ......
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