England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
BOURNEMOUTH DISTRICT REGISTRY
(Claimants renewed application for pta)

		Royal Courts of Justice Strand London WC2 Wednesday 25th July 2001

1. LORD JUSTICE DYSON: Mr and Mrs King are the owners of 62 Magna Road, Poole. In 1992 they had substantial underpinning works carried out at their property by Technology Piling TPL ("TPL"). The scheme was designed by a Mr Pearce of Pearce Rougier Associates, who also supervised the work. The claimants were so appalled by the poor manner in which the work was being done that they gave instructions for TPL to cease work and dismissed them from the site. Negotiations took place during 1992 for a possible resumption of work, but before these were completed TPL went into receivership in January 1993.
2. In 1998 the claimants started proceedings against TPL and separate proceedings against Pearce Rougier Associates and Mr Pearce. Judgment was entered against TPL, with damages to be assessed. A trial took place at which Pearce Rougier Associates and Mr Pearce did not seriously contest their liability. The trial therefore was essentially concerned with the quantification of damages.
3. The judge held that the claimants were justified in dismissing TPL from the site. An important question was whether, in order to mitigate their loss, the claimants should make use of the piles that had been inserted by TPL or whether they were justified in constructing new piles. As at the date of trial, which took place in 2000, the remedial work had not been carried out.
4. There was expert evidence called on behalf of the claimants and on behalf of Mr Pearce. (I shall draw no further distinction between 'Mr Pearce' and 'Pearce Rougier Associates'). The expert called on behalf of Mr Pearce was Dr Love. He said that the number and positioning of the piles provided a very wide margin of safety. He had no doubt that the work could be done satisfactorily using the existing piles. The claimants' expert, Mr Green, said that he was of the opinion that fresh piles were required since he could not be satisfied, having regard to the history of the contract and the records which had been kept, that the piles had been properly installed. The judge preferred the evidence of Dr Love, who he found impressive. Mr Green was unable to express a view when pressed in cross-examination as to whether the piles were or were not adequate. The judge agreed with the view of Dr Love that there was no reason to suppose that the record of piling was inaccurate and pointed out that that appeared to have been the view of the building control authority, the Poole Borough Council, and of others who at the time were urging the claimants to allow TPL to complete the work. Accordingly, the judge concluded that it would not be reasonable for the claimants to insist on starting from scratch with a wholly new piling scheme.
5. Another problem facing the judge in carrying out the assessment of damages was how to take account of the fact that, although TPL had withdrawn from the contract in 1992, at the date of trial in 2000 the repair works had still not been carried out. The judge found that it was reasonable for the claimants to delay carrying out the works until the outcome of the litigation. He decided to assess the costs of repair by taking the 1992 costs and applying a 28.19% uplift to reflect the increase in building costs to the date of trial or at any rate until 1999. He then proceeded to assess the damages. He awarded £3,000 for general damages, and the claimants have already been given permission to appeal by Mance LJ on that aspect of the judgment. The judge also gave the defendants credit the sum of £3,166.25 plus VAT of £554.09 which he found was the amount due but unpaid to TPL at the date of the termination of its contract. To that sum he added a figure of £2,277.16 plus £396.76 VAT by way of interest.
6. On behalf of the claimant appellants Mr Norman submits that the judge was wrong to add interest to that credit sum due to TPL. He submits that the judge should have applied the same uplift percentage factor of 28.19% to the credit due as he applied to the cost of repair works so as to compare like with like.
7. It seems to me that that submission is one which has a real prospect of success. I should say that the only matter that has caused me to hesitate as to whether to give permission to appeal on that point is the fact that the sums involved are relatively very small. The effect is that if the argument succeeds then the sum payable to the appellants would be increased by £1,625. But, as Mr Norman points out, the appellants have already been given permission to appeal on the general damages point. This is a very short point. In those circumstances it seems to me there is no good reason why the appellants should not be permitted to raise this point as well.
8. The other matter that Mr Norman seeks permission to appeal concerns the refusal by the judge of permission to the appellants to call fresh evidence after he had given judgment. He gave judgment on 2nd August. On 21st December 2000 he had to deal with an application by the claimants for permission to adduce fresh evidence. This comprised evidence to the effect that the Poole Borough Council would now require the piles to be tested before they could be properly used at a cost of several thousand pounds. The judge had made no findings in his earlier judgment as to whether the borough council was likely to require the piles to be tested. That was because that issue had not been canvassed by the claimants at trial. Mr Norman submits that the claimants and their advisers are not to be criticised for not raising that issue at trial. Their failure to do so, he submits, is explicable on the grounds that it was only when he gave his oral evidence that Dr Love gave explicit and technical justification for his view that the existing piles were adequate.
9. The judge considered the matter in a very thorough and comprehensive judgment. He came to the conclusion that there was no sufficient justification for the failure by the claimants to address the issue of the likely attitude of the borough council to the question of the need for testing the piles. The judge referred in particular to correspondence that had taken place between the claimants' solicitors and the borough council in October and November 1999. There is a letter from the claimants' solicitors of 22nd October in which they said to the borough council that they "would have thought that to be totally satisfied with the effectiveness of these piles there it would be more prudent to test all of them. We shall be grateful for your response to this comment bearing in mind that you are aware that some of the piles have previously failed and have been lost." The response to that letter is dated 15th November. In their letter of that date the local authority asserted that "the onus will be upon the persons intending to carry out the work and their advisors to demonstrate to the Council that the existing piles are satisfactory in order to comply with the Building Regulations 1991".
10. The judge said this:

"In my view if I were to allow this evidence to be adduced a lot of matters would have to be reopened potentially and substantial additional costs would be incurred which would inevitably involve duplication because it is not just a question of tacking on some additional evidence, it is a question of recasting the way in which the evidence was adduced in the first instance."

11. It seems to me that the judge applied the correct approach to the question whether or not to grant permission for this fresh evidence to be adduced some long time after the conclusion of the trial and after he had given his principal judgment. I am not persuaded that he in any way misdirected himself, and for my part I would say that he exercised his discretion in a way which is beyond criticism. I would therefore refuse permission to advance this ground of appeal, but to the extent I have already indicated I would extend the grant of permission to appeal that has already been given.
12. MR JUSTICE ASTILL: I agree.
13. LORD JUSTICE DYSON: Thank you, Mr Norman.
ORDER: Application allowed in part.