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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY & CONSTRUCTION COURT

		Royal Courts of Justice Rolls Building
		26th July 2012

MR. JUSTICE AKENHEAD:

1. The claimants seek, by way of application, an extension of time for the service of Amended Particulars of Claim, which will provide particulars which I have ordered by way of a final order at a hearing on 25^th June 2012. I gave a judgment, which has been published, about my reasons for that, and I am not going to repeat anything I said in that judgment.
2. The date of 23 July 2012 for the provision of particulars of breach, losses claimed and causation, which I had found were wholly inadequately particularised in the original Particulars of Claim, was a date which emerged from discussion with, I hasten to say, competent counsel and solicitors for the claimants. It is not a date that I plucked out of the air, and it was a date I am sure that was put forward by them in good faith and in the belief on instructions that it could and would be complied with.
3. Briefly, the background is that the claimant's current solicitors are the third firm of solicitors instructed by the claimants in this case; at least one of the previous solicitors was not paid by the claimants, and exercised a lien over such documents as it had.
4. The claimants initially indicated that they would retain a particular expert. That expert, if ever actually engaged, did little or nothing on the case. Thus it was, in about November 2011, the claimants retained a Mr. Sickles, an American expert, to review the documentation to see what case could be made. Mr. Sickles produced two reports, in which he makes it clear that he is hampered by not having had time to review the documents.
5. It now emerges that Mr. Sickles had a copy of the claimants' hard drive relating to this particular project, and indeed he has still got it; he, obviously, is resident and works in the United States.
6. I found that the reports that he produced did not adequately particularise either the breaches, causation or loss and, in some respects, they simply were not particularised at all or indeed addressed, in many respects. It is clear from those two reports that Mr. Sickles has been asked twice, effectively, on an ad hoc basis, to review those files and to produce what essentially were stop-gap reports to indicate how far he had gone; the reports are, to be fair to him, highly qualified by reason of his inability at that stage to review all or indeed many of the relevant documents.
7. It appears, following my order, that the claimants decided that the best way of proceeding to produce the requisite particulars by way of amendment or otherwise, was to secure another copy of the hard drive which was in New York. So it was, I am told, that two employees resident in New York or in the United States, secured physically the hard drive relating to this particular project, and gave it to the well-known despatch company, Fedex, in New York to get it over to England. This was in the same week, I am told, as the order was made.
8. Fedex (I am not sure whether I can say "unusually" or not) took five days to deliver it, although certainly their promotional literature suggests that they will deliver anywhere in the world within a much shorter period than that (24 hours). It appears, and I am told this on instructions, that the hard drive found its way into Fedex's premises at Stansted Airport where it remained; there was clearly confusion as to whether it was to be delivered or picked up or whatever. Certainly, one way or the other, there was a failure on the part of the claimants to track the delivery, which is certainly a service that firms such as Fedex offer. Given the importance, and given the timetable, I would have expected the claimants to have done that, and I am absolutely confident that, if they had done that, time would have been saved.
9. Now, what happened when the hard drive arrived at the claimants' solicitors' offices -- and this is supported by the witness evidence of Miss Maher for the claimant (as she says, and obviously it, in itself, is not challenged) – is that there were problems with the hard drive. She says that it was a very substantial hard drive with 360 gigabytes of data, which is obviously a large amount of information and documents, and the files were in different mixtures of Word, Excel, Powerpoint and text as well as Outlook, PST files, images and web pages. Her firm's IT Department took six days to resolve the errors and encryption issues which they found as they worked their way through the hard drive. That has, clearly, delayed them somewhat.
10. Now, they, the claimants, have had meetings. A further expert has been retained, and although Mr. Sickles has not been (I use Mr. Brown's word) "disinstructed", it was thought that a new expert resource available in this country assisting the solicitors and counsel directly was a more sensible way of proceeding. I cannot begin to criticise the claimants for that approach; certainly in the interests of time that was not necessarily an unreasonable thing to do.
11. The claimants seek, and they accept it has to be by way of unless order, a two-week extension from 23 July which is the date for the particulars to be provided; it is said that they need this period to file and serve draft Amended Particulars of Claim which, I am told, will substantially reduce the quantum and the ambit of the claim to be made against Mr. Dale. It is accepted that any Amended Particulars of Claim will have to provide the requisite level of particulars of breach, causation and loss.
12. Now, it does seem to me, therefore, that in the circumstances I have described there should be a short extension. What I am minded to do is to order on an unless basis that, unless my final order of 25 June 2012 is complied with by 3 pm on 2^nd August, the Particulars of Claim be struck out and judgment be entered for the defendant.
13. I should explain why I have taken that date, which is somewhat less than the time which has been sought. I am very concerned (and this was not apparent on the last occasion because there was little discussion, if any, about the location of the hard drive) with what is, it seems to me, a clear misleading statement of truth attached to the Particulars of Claim. The Particulars of Claim para.29 say this:

"By reason of the matters aforesaid [those are the breaches] WOGL and/or Cleveland have suffered loss and damage. The best particulars that they can provide prior to disclosure and/or the provision of any further information herein are as follows:

29.1 WOGL has suffered loss and damage of £50·6 million as a result of the cost overrun on the Dragon LNG project".

14. That was supported by a statement of truth by a partner of the claimants' first solicitors, Kingsley Napley. I attach no criticism to the solicitor because I am confident that he would have secured confirmation from his clients to entitle him to sign and serve the statement of truth. But that is simply untrue, because it is clear that much better particulars could have been provided prior to disclosure from the hard drive, which it is clear that the claimants knew and must have known that they had, and that that would yield better particulars than simply the bland and unparticularised assertion that it had suffered loss and damage of £50·6 million. That is not acceptable.
15. A statement of truth under the CPR is an important safeguard, which claimants and indeed defendants in their defences should be extremely wary of regarding as unimportant. The idea is to avoid the sort of problems that this case has thrown up; it is important that the claimants should be made thoroughly aware that it is wholly inappropriate to mislead the court and to mislead the defendant in that way. If it had emerged at the last hearing that there was a hard drive, and that it contained requisite information, I might well have made an unless order at that stage which would, in all the circumstances, probably not have been complied with.
16. I do not suggest, I hasten to say, that current solicitors or counsel have in any way misled the court, either deliberately or even unwittingly in that regard, but matters have moved on since then. But, certainly so far as the claimants themselves are concerned, that is unacceptable behaviour.
17. Secondly, it does seem to me that, apart from some time being spent dispatching by agents the hard drive from New York to London which was not, I accept, an inappropriate thing to do, some of the related delay must be down to the claimants' failure to track that delivery. It is not enough just to say, "Well, it took five days", because the claimants and everyone knows in practice that if a 24 hour delivery date is given (and if it was not it should have been sought) that delivery companies like Fedex can be chased to ensure earlier delivery. So, part of that is down to them. I accept that the problems within the solicitors' IT Department are matters which can be considered to be beyond the control of the claimants, and it does seem to me that in those circumstances some extra time should be allowed. There was no written evidence about the Fedex problems, which was provided by Mr. Brown on instructions.
18. That said and thirdly, Mr. Dale has given evidence (which is not challenged directly or by any witness evidence) that there were other servers around the country which contain, if not in one place and on one hard drive, a substantial amount of relevant information upon which the claimants and their legal team could at least have been working in the meanwhile to determine the extent to which any further particulars could be provided. It therefore looks as if the legal team, unsurprisingly in the light of the course which they adopted, did little in terms of actually furthering the particularisation project until something like 11 July; therefore it is not surprising that some further time is actually required because nothing was apparently done for some 16 days of the 28 days allowed for the drafting and service of the particulars ordered. But it does seem to me that, to a significant extent they have made a rod for their own back. Again, I am not being critical of the solicitors or indeed counsel in this regard, that is the position in which they found themselves and were placed by their clients.
19. It therefore does seem to me that the claimants have had a very substantial amount of indulgence from the court. They have misled the court in their Particulars of Claim, and it is therefore critical that they provide the further information in a comprehensible and comprehensive form, and I pick 3 pm on 2 August for these reasons:

1 That gives them an extension of time which reflects at the outside the period of delay over which they had little or no control. It gives them 10 days which is capable of being met by dint of focussed and hard work; that will have given them 38 days to draft the requisite particulars, compared with the 28 days that only last month they were confident that they could do what was required; of the 38 days, no more than six days at the outside is arguably attributable to the hard drive glitches. In reality, there was work which the claimants could have gone on with in the meanwhile if they had used the other computer files available in this country;

2 The original date of 23 July, was fixed so as to enable the restored application for strike-out which had been brought by the defendant to come back before the court. It would come back before me, who was the judge who dealt with the initial strike-out application, so that:

(a) the particulars could be reviewed to see whether they were satisfactory and did provide the requisite amount of information; and if they did not that could lead to a strike-out. If they did, then appropriate directions should be given.

20. What I propose to do is, therefore, to order the restored strike-out application to take place on 3 August in the afternoon at two o'clock. That will be before me, and will give some time to enable the defendant to review those particulars by way of amendment or otherwise, and for the court to make informed decisions the following day. It does not, I am afraid, give as much time, but it does give some time. One of the problems with the claimants' proposed extension is that it would take matters into the following week when even High Court Judges occasionally are allowed some time off. Indeed, I am not available in fact until the last two weeks of September, bar the odd day in which I am due to come in, and it would be fairly important that the same judge who has been case-managing this should deal with it, therefore that is why I fixed the timetable.
21. One of the problems of leaving matters until towards the end of September, which I have taken into account is that Mr. Dale is in a continuing state of uncertainty. He is an individual, and obviously he has certain fears as to whether or not the claimants will still be receiving the financial support of their holding companies, certainly in circumstances which are gleanable from the last lodged accounts. This in the context of him as an individual having faced an effectively un-particularised £51 million plus claim having over him for the best part of a year which is no nearer trial than it was a year ago by reason of the Claimant's failings.
22. It seems to me, in all those circumstances, therefore, that the order will be:

"Unless the first claimant complies with para.2 of the order of 25^th June, by 3 pm on 2^nd August, its Claim and Particulars of Claim should be struck out and there shall be judgment for the defendant".

23. It therefore seems to me that the claimants and, unfortunately, their legal and expert team, will be pushed into a position of having to work extremely hard and, doubtless, long hours; but I am afraid that is a result of largely their own failings -- I say the claimants' own failings, and also indirectly as a result of the claimants misleading the court.
24. The costs of today will be the defendant's on an indemnity basis unless I am persuaded otherwise.

(LATER)

MR. JUSTICE AKENHEAD

25. Application for permission is refused. My reasons are that this is a case-management decision. The claimants are partly to blame for – and it is clear they are partly to blame for -- some of the delays; and the misleading of the court is a factor, because that may well have persuaded the court the last time round, on 25^th June, to order strike-out, and therefore we would not be here. It is an indulgence in any event that you got any time at all. I am not critical of you or your solicitors, but no.
26. I am going to call for a copy of the transcript of my ruling and these last few remarks about permission to appeal.
__________