QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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THOMAS HODSON HODSON DEVELOPMENTS LIMITED |
Claimants |
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- and – |
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PERSON UNKNOWN A PERSON UNKNOWN B DAVID DARBY LAURENCE DARBY |
Defendants |
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Simon Davenport QC (instructed by Leverets) for the Defendants
Hearing dates: 12th and 13th July 2022
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Crown Copyright ©
MR JUSTICE JAY:
Introduction
(1) Contract 1 for the groundworks for 67 houses and associated estate roads as well as foul and storm water drainage (Phase 1A). The contract price was £2,478,543.
(2) Contract 2 for the groundworks for 50 houses etc. (Phase 2A). The contract price was £2,898,256.
(3) Contract 3 for the construction of a 7m deep wet well for a Foul Water Pump (the Pump Station).
"… I have been trying to call you. Pay the Irishman the 1.5 million pounds or else. … You know who the Irishman is. You better contact him or else."
The Witnesses
The Underlying Commercial Dispute
"Darby has been trading successfully for 23 years now and we have never encountered a contractor like Hodson before. It appears to be TH's normal practice to avoid paying sub-contractors and to immediately launch legal attacks as soon as those parties take action against him to recover their unpaid sums. In the 35 years that I have worked in this business I have never dealt with this level of bullying and fabrication of defects in order to avoid payment of due payment applications. It appears that TH will go to extreme lengths to avoid payments."
Drainage Defects
"As regards para 39, I do not recall this conversation in October 2019 and do not agree with what he says took place. At that time HDL did not know the full nature and extent of the drainage issues. Our first house sale in Phase 1 was in November 2019, so I could not have had this conversation with DD at the time he alleges."
TH's attention was not drawn to para 89 during the course of his oral evidence. The final sentence of para 89 makes only a superficially good point because DD could well have been aware in October that people were about to move in the following month.
"As to our 25 March 2020 letter, we note that we have not yet received a substantive response to Darby's comments in relation to Phase 2 in that letter …
In our letter of 22 April 2020, we requested a copy of the as-built levels of survey of the surface water drainage system … in the Phase 2A section of the project you have referred to in your letter of 16 April 2020 in order that Darby could properly understand Hodson's allegations and address them appropriately. However, Hodson has not yet provided a copy of the survey referred to in your letter of 16 April 2020."
"We enclose an updated list of the Phase 1 defects which sets out the defects in Darby's works including the internal foul drainage, external foul drainage, external surface drainage and a number of other areas of work.
Hodson notified Darby of defective works on numerous occasions during site meetings and also by email on 29 November 2019, 9 December 2019, 10 January 2020, 13 January 2020 and 5 February 2020 …"
Gowlings did not provide a copy of the as-built levels of survey.
"… Hodson did not allow Darby the freedom to inspect the site or alleged defects but instead continually intimidated Darby by having 5 Hodson staff members surrounding Darby.
… Hodson were continually being disruptive and when they found it difficult and unable to answer straight yes/no questions, Hodson told Darby to immediately leave site."
"We also attach:
- An updated List of Defects for Phase 2 [this is not in the bundle]
- Drainage Defects As-Built plan by Vectos, the Civil Engineers for the works:
- AB2 – this drawing shows the significant and minimum areas of drainage that requires remedial works …
- AB3 – this drawing shows the drainage network that has not been installed in line with the design drawing – basically, all the drainage.
You first received the drawing in June 2020. The only recent update to the drawing is that Vectos added a table on the drawing showing the:
- Design levels
- As built levels (independently surveyed)
- Difference
Note that this is not new information …
We await your comments by return on the defects.
We still continue to find further defective works upon carrying out further surveys and reviews of your works. It is also our position that senior individuals within Darby have been aware of these defective works but have chosen not to bring it to the attention of Hodson …"
"It seems to us that the parties' position in relation to this allegation are entrenched. For the avoidance of doubt, Darby denies Hodson's allegation that the drainage installed by Darby is defective. Darby relies on its as built levels drawings, which it has provided to Hodson and which clearly show the drainage as running to appropriate falls, as evidence of the position. However, Hodson relies on its own as built levels of drawings as evidence of its position that the falls are inappropriate."
The Amount Due and Owing as at March 2021
Gallaghers
"I was told by an associate at Gallagher .. that Hodson disputed and refused to pay their applications for payment totalling around £1.25 – 1.5M, arguing alleged defects in their work. This still has not been amicably resolved."
Two Further Matters Relevant to the Credibility of DD and LD
"The window and door sub-contractors actually started to physically remove the installed windows on one occasion I recall, and this was due to Hodson disputing and then not meeting their applications for payment."
Peripheral Matters
The Alleged Harassment
"… I have been trying to call you. Pay the Irishman the £1.5M or else. You have 24 hours or else.
… You know who the Irishman is. You better contact him or else.
… We have written to you."
"The value of the contracts is around five million and we are withholding the value of just over one million. There [sic] company took the matter to tribunal. To which the company I worked for won and did not have to pay anything to [DGL].
… The voice had a strong Essex accent.
… I believe this comes from the contractors we hired as this is the only dispute the company I work for has had that has gone to tribunal with and the was a large sum of money that we did not have to pay. [sic]"
"This is a message for Thomas Hodson. Get in touch with the Irishman and pay him the money. If not, we are coming for your family."
"Our client is concerned that you and Tucker's letters are part of a smear campaign by your client. A large debt has been accumulating over a number of month [sic] as a result of non-payment most of which has been incurred since January 2021. The difference between our client's position and your client's position has increased significantly since January 2021."
"… provided that this does not prevent the sending of lawful communications or demands to talk to or pay to the Claimants' advisers through legal representatives or the Third or Fourth Defendants sending PayLess Notices or other contractual or statutory notices or correspondence under contracts with the Second Claimant …"
"This is a message for, er, Thomas Hodson.
Call the Irishman. He will give you bank details to pay the money you owe. If you don't your family will find out who we are."
According to TH's evidence, the voice had a foreign accent.
"We are lawyers acting for TH and HDL. This text is to give you notice that our clients have obtained a court order against DD and LD that they must not whether by themselves or through others threaten or harass TH. Please email us at …"
"Stop hiding behind solicitors letters. Pay the money you owe, owe. We are coming for your family you c***."
The voice was the same as that behind the previous day's message.
"Solicitors letters won't stop us doing what we have to do send as many as you like you now all sleep well I'm going to enjoy the next bit."
"… If your clients are behind the calls being made then they are acting in breach of the court order made on last Friday …"
Relevant Legal Framework
"1 Prohibition of harassment
(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
(1A) A person must not pursue a course of conduct —
(a) which involves harassment of two or more persons, and
(b) which he knows or ought to know involves harassment of those persons, and
(c) by which he intends to persuade any person (whether or not one of those mentioned above)—
(i) not to do something that he is entitled or required to do, or
(ii) to do something that he is not under any obligation to do.
(2) For the purposes of this section or section 2A(2)(c), the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
(3) Subsection (1) or (1A) does not apply to a course of conduct if the person who pursued it shows—
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable."
"3 Civil remedy
(1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment."
"… a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress."
"When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probabilities."
Harassment is a criminal offence and engages this principle.
Mr Davenport's Submissions
Discussion: Liability
(1) Concoction;
(2) TH's evidence was of no probative value;
(3) TH and HDL had failed to discharge the burden of proof;
(4) Miscreancy.
EITHER: TH and HDL have proved their case on the balance of probabilities that the calls etc. were made and that TH was genuinely distressed as a result (he would not have been genuinely distressed had he concocted them)
OR: TH and HDL have not proved their case on the balance of probabilities.
Discussion: Remedies