Walter Lilly & Company Ltd v Mackay

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Aikens
Judgment Date24 January 2013
Neutral Citation[2013] EWCA Civ 142
Date24 January 2013
Docket NumberCase No: A1/2012/1961 & A

[2013] EWCA Civ 142




Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Aikens

Case No: A1/2012/1961 & A

Walter Lilly and Company Limited
Mackay and Another

Mr Paul Darling QC and Mr David SearsQC (instructed by Nabarro LLP) appeared on behalf of the Appellant.

Mr Sean Brannigan QC and Ms AnnaliseQC (instructed by Messrs Stephenson Harwood) appeared on behalf of the Respondents.

Lord Justice Aikens

This is an adjourned application for permission to appeal, which is made on behalf of the defendants in the action, who were respectively the contractor and the guarantor in respect of a building project which was undertaken by Walter Lilly and Co Limited, who were the claimants in the action. The judgement which it is sought to appeal is that of Akenhead J, who is a specialist TCC judge, indeed he is in charge of the TCC. The judgment is dated 11 July 2012. That judgment followed a hearing which lasted some 16 days before the judge in March, April and May of 2012. The judgment itself runs, I think, to 660 paragraphs and is some 200 pages long, or just short of that.


The litigation concerned a building project at 3 Boltons Place in Chelsea. Originally there was one project to build three luxury houses in Boltons Place. The total contract sum for the three properties was something just over £15 million. Subsequently that project was effectively divided into three separate projects. The litigation concerned what became known as Plot C, which was to be a house lived in by Mr Mackay, the first defendant in the action.


The project underwent considerable delays and the nature of the issues in the claim were, effectively: 1) was the contractor entitled to have account taken of that delay in terms of contractual allowance for it; and 2) what sums could be recovered in respect of that delay. The judge noted at paragraph 2 of his judgment that there were 32,000 pages of documentation, that there had been nine factual witnesses and eight experts at the trial hearing, and that there were 33 bundles of expert evidence, which themselves ran to a total of 11,000 pages. The judge also remarked:

"It seems that the parties have expended between about £9 million and £10 million by way of costs, which is obviously disproportionate to what is in dispute."


The total amount that the judge awarded having dealt with all issues was in the region, including interest, of something over £2 million.


Despite the fact that this is a judgment of 660 paragraphs and despite the fact that it is the considered judgment of a specialist judge in a specialist tribunal after a long and elaborate trial, it is submitted on behalf of the applicants that the judge erred and that there is a reasonable prospect of success in the Court of Appeal in respect of three broad issues on appeal. I decided that the easiest way to deal with this application for permission to appeal, given the length of the judgment, the complexity of the underlying factual issues and the somewhat technical nature of the points raised, was to invite the parties to make short oral submissions in relation to the application. I have been much assisted today by the submissions of Mr Darling QC on behalf of the applicants and Mr Brannigan QC on behalf of the respondents.


Mr Darling submits that the first area in which the judge made errors was essentially one of law. The standard form of contract used in this case was a JCT Standard Form of Building Contract 1998 Edition Private without Quantities Incorporating Amendments 1, 2, 3, 4 and 5 as modified in certain respects. The question is: what precisely is needed to be contained in notices to be given under Clause 26 of that form of contract. These are notices that have to be given as a condition precedent to the contractors'...

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