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

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

		St Dunstan's House 133- 137 Fetter Lane London EC4A 1HD
		13th June 2008

 


MR JUSTICE AKENHEAD

1. This application arises out of a claim brought by the claimant, Mr Drummond, who is the owner of residential property know as Laynston House, Pachesham Park, Leatherhead, Surrey. In 2000 and 2001 he had a number of consultants and contractors design and construct a swimming pool and a swimming pool structure at his new house. It is asserted that the works were started in about May 2001 by Mr Buckell, the third defendant, who was the main contractor engaged to carry out various works in relation to the swimming pool. It is said that the works were completed by the middle of 2002 and that shortly thereafter that cracks and damage emerged. A fairly substantial is claimed and in the Particulars of Claim eventually served the quantum is put at £1.8 million pounds approximately.
2. Given limitation difficulties the claim form was issued on the 17^th October 2007 and, on the 13^th February 2008, the claimant's solicitors served by letter on Mr Buckell the claim form. There is no issue that it was served within the time called for in the rules, namely four months from the date of issue of the claim form. What has happened is that shortly thereafter the claimant obtained an order from the court, whereby the time for service of the particulars of claim was extended until early May 2008.
3. The circumstances in which that application for an extension happened were as follows: On the 22^nd February 2008, after the service of the claim, the claimant's solicitors wrote to Mr Buckell, who, although possibly insured, was unrepresented at the time, wrote to him on the 22^nd February 2008 in these terms:

"Further to our letter of the 15 February 2008 in which we served you with our client's claim form, we have now received letters of response from 3 of the 5 defendants. For your information we are awaiting formal Responses to our Letter of Claim from yourself and from Pool Project Management Ltd. Please confirm when we can expect to receive your letter of Response.

Whilst there are on-going discussions as to mediation, we write to request an extension of time for service of the Particulars of Claim, to 29 March 2008.

We would be grateful to hear from you by return. In the event that an extension of time is not agreed by 1pm on Monday, the 25^th, we will be instructing counsel to draft particulars of claim."

4. Mr Buckell unfortunately is and was then seriously ill and I have been told that he is terminally ill. On 26^th February 2008 Mrs Buckell, perfectly properly, replied to that letter of the 22^nd February saying that she had passed all correspondence to the insurers, and indeed I assume that that was done.
5. Thereafter, the claimant's solicitors issued an application to this court in respect of the claim. The application notice is dated the 28^th February 2008, and it is clear that was the date on which it was lodged with the court here, and it indicated that the parties to be served were all the defendants. The form of the application indicated that the claimant intended to apply for an order, a draft of which was attached:

"…pursuant to CPR 7.6, the time for service of the Particulars of Claim can be extended by two months to 2 May 2008 because the parties are in the process of reaching an agreement to resolve the matter via mediation. The 1^st and 2nd Defendants have confirmed their agreement to participate in mediation and the 5^th Defendant has also indicated that they may be willing to agree to mediation.

The 1^st, 2^nd and 5th Defendants have agreed to our written request for an extension of time.

The 3^rd Defendant is terminally ill, and we have been unable to get a response from him in respect of our request for mediation, as well as our request for an extension of time."

6. There was a witness statement attached to that from Peter Martin Allen, dated on the same day, and he explained the background to the claim and when the claim form had been served. With regard to Mr Buckell he said this:

"5. We are having to deal with each of the five Defendants separately. All with the exception of Peter Buckell are now represented. We are in discussion with such representatives with a review to referring the matter to mediation, having provisional agreement to this effect from three of the represented.

6. In relation to Peter Buckell, it is known that he is seriously ill and although we have had some communication with his insurers, solicitors have not at present been appointed on his behalf. We are, however, continuing our discussions with those insurers and are hopeful that solicitors will be appointed so that we can then pursue the question of mediation with them (if not we will endeavour to pursue it with insurers). If it transpires that he does not have relevant insurance (and this is likely to be the position) it is probably that the Claimant will not pursue the claim against him."

7. Mr Allen went on to say that he thought, given the difficult issues in the case and the costs of the case, that it was a case appropriate for mediation; he then said this at Paragraph 8:

'In view of the positive indications received we delayed as far as possible instructing counsel to prepare the particulars of claim, to the purpose of trying to avoid the costs of this exercise, but more importantly with a view to trying to obviate the need for active litigation.'

8. At Paragraphs 9 and 10 he says:

"9. Having obtained positive responses from the 1st, 2nd and 5th Defendants, to the proposed mediation, also their consent to an extension of time (in respect of which their solicitors have signed a consent order), the fact the particulars of claim were to be served by 2 March 2008 was overlooked.

10. I therefore ask the Court to extend the time for service of the statement of claim by two months to 2 May 2008."

9. Attached to the application were copies of the consent orders, signed by two of the defendants. It appears that within two working days it was reviewed by a Judge of this court, (it was not me I can be certain of that), who made the order in the form that accompanied the application. The form of the order, stamped on the 3^rd March 2008, was:

'Consent Order

By consent it is ordered that:

1. The time for service of the particulars of claim be extended to 29 April 2008.'

10. The Judge, who made the order, must have known, it seems to me, that it was not a consent order in the sense that three of the five defendants had not signed the consent order. There was no information from Mr Allen that two of these three parties, including Mr Buckell, had agreed the consent order; indeed he makes it clear, on the face of the application and in his witness statement, that no such consent had yet been given. Notwithstanding that, the Court thought that it was appropriate to make the order. In the ordinary course of events, however, it would have been expected that the order would be served on all five defendants by the claimant. But that was not the case, at least so far as Mr Buckell was concerned whose insurers' solicitors did not receive a copy of that consent order until a date in early May 2008.
11. The Particulars of Claim were served within the time allowed for that extension of time and so when it was served on Mr Buckell his insurers' solicitors obtained it and they sought some information from the claimant about it; in particular, for instance, in their letter dated the 13^th May 2008, they wrote this:

"As set out in our letter of 9 May 2008, we have been informed that Mr Buckell did not agree any extension of time in respect of service of the Particulars of Claim. We therefore request a copy of your correspondence to the Court regarding an extension of time for service of the Particulars of Claim and a copy of the unsealed Consent Order signed by all the parties."

That was not in effect responded to for the best part of a month when a copy of the consent order and accompanying documents were provided to Mr Buckell's insurers' solicitors.

12. So this application is now brought by Mr Buckell for an order that the consent order is set aside and/or discharged, and in effect for a declaration that the Court has no jurisdiction to try the claim pursuant to CPR 11.1(a) and/or alternatively the Court should not exercise its jurisdiction to try the claimant's claim pursuant to CPR 11.1(b) and/or that the Claim Form should be set aside or stayed and/o that the Particulars of Claim be set aside.
13. That is supported by a witness statement of Miss Wilson, on behalf of Mr Buckle's insurers' solicitors, and that is met by a further witness statement from Mr Allen dated the 11^th June 2008.
14. In effect Mr Eklund QC on behalf of Mr Buckell seeks to argue that this was clearly not a consent order as his client did not consent to it. He did not even know that he was being asked to consent to it, and it should be set aside.
15. Now, initially Mr Eklund QC was arguing this case as a matter of jurisdiction, effectively saying that the Court had no jurisdiction now to deal with the claim against Mr Buckell at all in the circumstances, in effect because there was no valid extension of time so far as his client was concerned and invalid late service of the Particulars of Claim. What I understand his position to be now, and in my view quite properly, is that this is ultimately a question of discretion for the court. CPR Part 7.5 makes it clear that a claim form must be served within four months after the date of issue.
16. CPR Rule 7.4 (1) says:

"Particulars of claim must be contained in or served with the claim form, or subject to paragraph two be served on the defendant by the claimant within 14 days after service of the claim form."

Rule 7.4 (2), however, says:

"Particulars of claim must be served on the defendant no later than the latest time for serving a claim form."

17. Thus if the four months has elapsed, or has virtually elapsed, the Particulars of Claim must be served in effect no later than four months after the issue of the claim form. Thus Mr Eklund QC, rightly, says the Particulars of Claim should have been served by the 17^th February, if not actually accompanying the claim form.
18. However, he quite properly accepts that, under the court's case management powers, under CPR Part 3, the court has a power, in Rule 3.1(2)(a) to:

'Extend or shorten the time for compliance with any rule, practice, direction or court order, even if an application for extension is made after the time for compliance is required.'

19. It is clear, in my judgment, that this is a matter of discretion ultimately and even if there had been an irregularity earlier, the court is given wide case management powers to adopt a proportionate fair and pragmatic approach to the resolution of issues such as this.
20. It seems to me, looking at the matter as a matter of discretion, I am satisfied that the claimant, by his solicitors, did not mislead the court when applying for the extension of time. They made it clear that Mr Buckell had not consented to the order, albeit that the order that had been signed by a number of the defendants, was headed 'Consent Order'. I do not see that there is any reason to believe that the court was misled about it. Similarly, I do not see that the Court was misled into believing that Mr Buckell had been served and the application notice indicates that the parties to be served were the defendants, but an explanation was given about the third defendant's particular position, which I have read out already.
21. The Court, doubtless on the basis of Mr Allen's witness statement, accepted that there was a reasonable basis for allowing an extension of time, and that obviously was that it looked as if there was a reasonable prospect of the matter being resolved without the need for litigation and the claimant was trying to save costs by not yet serving the particulars of claim. The Court, I assume and presume, was persuaded that that was the case.
22. Against that it could be said that Mr Buckell, for whom I have the greatest sympathy personally, has lost the opportunity to deal with the application for an extension of time on the merits. Now, I can see, in one sense, that that is the case, but it seems to me that, if this is a matter of discretion, what was needed for the purpose of this application, was some evidence to indicate that there were good grounds which stood some realistic prospect of success, back in February, to enable him, effectively and successfully, to have contested the application for the extension of time. Certainly no specific grounds have been put up as such. Obviously I am very cognisant to the fact that he is, and was, seriously ill and that he might have wanted to argue that even a few days' delay could materially prejudice his position. But I have no such evidence before me, and therefore it seems to me, weighing one thing up with another, that I should dismiss this application, although I wholly understand why it was brought.

Decision

23. Mr Buckell's application will therefore be dismissed.

Costs

24. I also heard argument about costs. So far as the principle of what the Court's order should be, I have formed the view that, at least to some extent, the claimant has brought this on itself. Although he has "won" because he has defeated the application, the problem seems to me arose, not from what he and his solicitors did back in February, but first of all from not serving the consent order in February 2008, which is when it should have been served, rather than three months later. Secondly, having served it, they did not respond as promptly and as fully as they should have done to explain what had happened. I have already referred in my judgment to the letter dated 13 May 2008, which the solicitors, on behalf of Mr Buckell's insurers wrote, asking for correspondence relating to the extension of time and indeed a copy of the unsealed consent order signed by the parties. There was simply no response to that and in my view it was legitimate in the circumstances for Mr Buckell to issue the application in circumstances where there had not been the fullest explanation as to what the position was.
25. That was compounded, it seems to me, because, although the application was served by Mr Buckell's solicitors on 22 May 2008, with Miss Wilson's witness statement, there was no response of any sort, either in correspondence or by way of witness statement, until Mr Allen's second witness statement dated the 11^th June, which is two days before the hearing of this application. It is true that Mr Allen's second witness statement, although not 100% accurate, actually does set out the position much more fully and it seems to me thereafter that it could properly be said that the Claimant was perfectly entitled, in the result, to pursue the defence of the application. It could then be said that Mr Buckell's insurers' solicitors at that stage should have taken stock and avoided the need for this hearing.
26. I do not think it is a case where no order as to costs should be made, because that means that both sides would have to pay their own costs of this application. I have formed the view that justice would best be served by the claimant having 25% of its costs of and occasioned by the application, to reflect the matters I have identified.
27. So far as the assessment of the costs of and occasioned by today is concerned this is obviously a case for a summary assessment. The Claimant's bill is £5587.16. Some challenge is made about Counsel's fees being too high. I think the appropriate net allowance before the application of the 25% allowance (see above), should allow for the fact that against the total bill of £5,587 I would expect this to be reduced on a detailed costs assessment down to about £4,000. There is possibly something in what Mr Eklund QC says about the difference in counsels' fees, although that is always necessarily an invidious thing for one counsel to have to say about the other's fees. So I think an appropriate net allowance is £4,000, so there will be an order in relation to this sum. Thus the defendant will pay 25% thereof and pay £1,000 towards the Claimant's costs.