England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 June 2008

The Honourable Mr Justice Coulson :

1. At the combined CMC/PTR on the 20^th June 2008, I refused the defendant's application, made pursuant to CPR 35.15, that I appoint an assessor to assist the court at the forthcoming quantum trial. I indicated that I would provide brief reasons for that decision. These are those reasons.
2. The defendant is responsible for the acquisition of land for the Olympic Park which is to be created in Stratford in East London for the purposes of the 2012 Olympic Games. The claimant is one of three professional firms who were engaged by the defendant to assist in the acquisition of land at Marshgate Lane. The claims by the other two professional firms have now been compromised.
3. The claimant's claim has already been the subject of a detailed judgment by Jack J [2007] EWHC 106 (QB). What now remains is the assessment of the quantum of the claimant's claim. The claimant's services included negotiation, project management in the giving of relocation advice. It is agreed that relocation advice work is covered by the Compensation Code relevant to Compulsory Purchase and Compensation, all as described by Jack J at paragraphs 49-51 of his judgment. Furthermore, it is the defendant's case that the Compensation Code will be relevant to the assessment of the bulk of the fees for negotiation and project management also allegedly owing to the claimant.
4. Pursuant to the Compensation Code, the claimant is entitled to recover "the reasonable costs and expenditure which arises as a natural and reasonable consequence of the relocation", including "legal fees arising from the acquisition of the replacement property" and surveyor's and architect's fees similarly arising. The claimant acknowledges that, even where (on its case) the Compensation Code is not directly relevant to the assessment of the sums due, the claimant's entitlement will be calculated by reference to what is reasonable in all the circumstances.
5. Other material facts relating to this claim are these:

(a) The total amount in dispute is, inclusive of interest, around £600,000.

(b) There has been at least one failed attempt at mediation based on 15 sample files. At the trial in October, that sample has been slightly expanded and the court will be considering 20 sample files, out of a total of over 100. The parties have sensibly agreed to deal with the totality of the claim by a straightline pro-rata exercise extrapolated from the court's findings on the 20 sample files.

6. The court has a wide discretion to appoint an assessor under CPR 35.15. It seems to me that the following principles are relevant:

(a) The court must have regard to the overriding principle (CPR 1.1), and in particular to all questions of proportionality, when considering appointing an assessor. Since the parties will have to pay the costs of an assessor, a court should think twice about imposing an extra layer of cost on the parties, and evaluate the potential benefit of an assessor against that cost, and the amount at stake in the proceedings.

(b) The appointment of an assessor may be appropriate if the subject matter of the proceedings is technically complex or involves a particular activity which will be unfamiliar to the court. In nautical collision cases, an assessor will often be appointed; see, by way of example, The Owners of the Ship 'Bow Spring' v The Owners of the Ship Manzanillo II [2004] EWCA Civ 1007; and The Owners and Bareboat Charterers of the Vessel 'Global Marina' v The Owners and Bareboat Charterers of the Vessel 'Atlantic Crusader' [2005] EWHC 380 (Admlty). Assessors can sometimes be appropriate in detailed or complex costs disputes although, depending on the circumstances, their own costs will often be met by the court service, rather than by the parties.

(c) Where assessors are appointed, it will be important to ensure that both the questions put to the assessor, and the assessor's answers to those questions are shared with the parties and made the subject of counsel's submissions. This can lead to the risk of increased cost and delay which will be "inherent in the ping-pong of post-hearing exchanges"; see paragraph 16 of the judgment of Gross J in Global Marina.

(d) In TCC cases in recent years, the appointment of an assessor has been very much the exception rather the rule. In McAlpine Humberoak v MacDermott (1990) 51 BLR 34, although His Honour Judge Davies QC sat with two assessors, they played no separate part in the proceedings, produced no reports, and their influence was not obviously discernible in the judge's judgment.

7. In considering and applying those principles to the present case, I have concluded that it would be inappropriate to appoint an assessor for the forthcoming trial. First, I do not think that it would be proportionate to do so. Although I am in no doubt that the claim for £600,000 is of the utmost importance to the claimant, it is a sum that is relatively modest by the standards of this court and, sadly, relatively modest compared with the costs that the parties are likely to have already incurred in these proceedings, let alone the future costs of the quantum trial. It would only be appropriate to add a further layer of costs at this late stage if it was in the interests of justice to do so. I do not consider that it is.
8. In essence, the forthcoming trial will be concerned with the nitty-gritty of the claimant's individual claims; it will be a good example of what has been called "the grinding detail"^[1] that can be a hallmark of litigation in the TCC. The main issue will be whether the individual charges are reasonable in all the circumstances. The evaluation of a lengthy list of individual items of claim, and a consideration of their reasonableness (or otherwise), is one of the principal functions of the TCC and there is no reason to distinguish this case from the ordinary run of quantum disputes arising out of property development and building work.
9. Mr Williams contends on behalf of the defendant that there are likely to be issues in this case concerned with whether or not particular items of claim are properly recoverable under the Compensation Code. Therefore he submits that the court would be assisted by having an assessor well-versed in the operation of the Code. However, it seems to me that, once the Code has been explained to the trial Judge, he would be able to come to a view as to the reasonableness and recoverability of each item of cost claimed, without the assistance of an assessor. It would be akin to an evaluation under the Standard Method of Measurement. Furthermore, the defendant will not be shut out from making such points as it wants by reference to the Code; indeed, I note that the second witness statement of Mr Andrew Gaskell, served on behalf of the defendant, takes a number of points that make direct reference to the workings of the Code itself. It will therefore be for the trial Judge to consider those points and to see whether or not, on the basis of the evidence, they are correct.
10. Mr Williams' other main point was to argue that, if an independent assessor was appointed to assist the court, his views, possibly expressed at an early stage, would assist the parties settling the case. That submission would have had much more force if it were not for the fact that there has been at least one failed mediation between these parties already. It seems to me that, if the parties have been prepared to entertain the mediation process, but that process has not led to a compromise, then there is nothing to suggest that the further involvement of another third party will make any significant difference to the prospects of settlement.
11. For all these reasons, I conclude that it would be both disproportionate and unnecessary to require the parties to pay for the costs of an assessor to assist the court with the evaluation of the sums, if any, due from the defendant to the claimant. It is for those reasons that I have declined the defendant's application. I am very grateful to both counsel for their concise submissions on the principles involved in this application.

Note 1   See Dyson J (as he then was) in Macob Civil Engineering v Morrison Construction [1999] BLR 93 at page 97.    [Back]