Willmott Dixon Construction Ltd v Robert West Consulting Ltd
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 21 December 2016 |
| Neutral Citation | [2016] EWHC 3291 (TCC) |
| Docket Number | Case No: HT-2015-000153 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 21 December 2016 |
[2016] EWHC 3291 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Fetter Lane, London, EC4A 1NL.
The Hon Mr Justice Coulson
Case No: HT-2015-000153
Mr Joseph Sullivan (instructed by Kennedys) for the Claimant
Ms Lynne McCafferty (instructed by Beale & Co) for the Defendant
Hearing date: 16 December 2016
THE APPLICATION
The claimant contractors appointed the defendant engineer in connection with works they were carrying out at 5 and 7, Mossbury Road, Clapham. The defendant's design involved, amongst other things, the underpinning of an existing gable wall shared with 9, Mossbury Road. It is alleged that the design was defective and the underpinning caused damage to the party wall. In consequence, the project was delayed and the claimant contractor suffered loss and damage.
By an application dated 6 December 2016, the defendant sought to amend Responses 13 and 14 of its Answer to the claimant's Request for Further Information, originally provided a year ago, on 4 December 2015.
These Responses go to the defendant's allegations of contributory negligence arising out of the works carried out in and around the party wall by the claimant's independent sub-contractor, Toureen. The amendment to Response 13 is uncontroversial and is allowed; the amendment to Response 14 is contested.
Response 14 originally pleaded reliance on one exception to the general rule that a main contractor is not liable for the negligence of its independent sub-contractor. That is the narrow exception set out in D&F Estates Ltd v Church Commissioners for England [1989] AC 177 at 209C, which depends on the main contractor's actual knowledge that the work is being done in a foreseeably dangerous way, and the condoning of it, rather than any sort of vicarious liability. That doubtless explains why Response 14 went on to stress that "for the avoidance of doubt, it is not alleged that the claimant was vicariously liable for Toureen's negligent acts or omissions".
The controversial amendments to Response 14 propose, first, to delete that clear indication, and to add a new allegation purporting to make the claimant vicariously liable for Toureen's work. The pleaded basis of that allegation is:
"…the defendant will rely upon the exception in cases where the sub-contractor is entrusted with work which involve the withdrawal of support from neighbouring property per Alcock v Wraith [1992] BLR 20 and Johnson (t/a Johnson Butchers) v BJW Property Developments Ltd [2002] 3 All ER 574."
The amendments to Response 14 are opposed by the claimant on the basis that they cannot succeed in law and/or that they will necessitate evidence which has not yet been adduced. Since the trial of this action starts on 16 January 2017, it is said that there is insufficient time to allow for that to happen. The proximity of the trial date also meant that this Judgment had to be produced quickly, and I am very grateful for the assistance of both counsel for the clarity of their respective arguments.
THE APPLICATION TO AMEND/PRINCIPLES AND ISSUES
The amendment is sought pursuant to CPR 17.1(2)(b). When issues arise as to whether or not an amended allegation can succeed, the test that is applied is the same as under CPR Part 24: in other words, the party seeking to make the amendment has to demonstrate that it has a real prospect of success: see Grovehold Ltd v Hughes [2010] EWCA Civ. 538.
When amendments are made late the burden is on the party seeking to make the amendment to provide a good reason for the delay. The modern approach is summarised by the Court of Appeal in Swain-Mason v Mills and Reeve LLP [2011] EWCA Civ. 14 and more recently by Carr J in Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm). She said:
"38. Drawing these authorities together, the relevant principles can be stated simply as follows:
(a) whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted;
(b) where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission;
(c) a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept;
(d) lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done;
(e) gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;
(f) it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay;
(g) a much stricter view is taken nowadays of non-compliance with the Civil Procedure Rules and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so."
There are two principal issues raised by the current application to amend. First, does the amendment raise an arguable claim in law against the claimant, which itself raises two sub-issues: did the claimant owe a non-delegable duty in respect of the underpinning works carried out by Toureen and, if so, is that duty capable of being relied on by the defendant in its allegations of contributory negligence? And second, if both the preceding sub-issues are answered in the affirmative, should the court exercise its discretion in favour of allowing the amendment? I deal with the issues in that order.
DID THE CLAIMANT OWE A NON-DELEGABLE DUTY AND CAN THE DEFENDANT RELY ON IT FOR THE PURPOSES OF CONTRIBUTORY NEGLIGENCE?
The Relevant Law
The relationship between non-delegable duties and vicarious liability had become rather muddled. It was clarified in the well-known judgment of Lord Sumption in Woodland v Essex County Council [2013] UKSC 66. He said:
"3. In principle, liability in tort depends upon proof of a personal breach of duty. To that principle, there is at common law only one true exception, namely vicarious liability. Where a defendant is vicariously liable for the tort of another, he commits no tort himself and may not even owe the relevant duty, but is held liable as a matter of public policy for the tort of the other…The boundaries of vicarious liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but stand in a relationship which is sufficiently analogous to employment…But it has never extended to the negligence of those who are truly independent contractors, such as Mrs Stopford appears to have been in this case.
4. The issue on this appeal is, however, nothing to do with vicarious liability, except in the sense that it only arises because there is none…
5. The law of negligence is generally fault-based. Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all. The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do… The expression 'non-delegable duty' has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of...
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