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

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th March 2012

 


Mr Justice Akenhead:

1. This case is listed for trial for 19 March 2012 for six days, having been fixed since May 2011. The background is that in about 2006 the Defendant was retained as the main contractor by the John Lewis Partnership to carry out refurbishment works at its flagship Oxford Street store in London. The Defendant retained the Claimant as a sub-contractor to carry out asbestos removal works on this project, unsurprisingly much or all of the work being carried out outside normal opening hours. The various sub-contract works were said to have been extended over longer periods perhaps than had been previously anticipated. The Claimant sub-sub-contracted substantial elements of the work to T&S Multiservices Ltd ("T&S"). One or more final accounts were submitted by the Claimant to the Defendant.
2. The claim is a not insubstantial one in which the Claimant claims something over £3 million. The Claimant has been in Administration for some time and to fund the litigation the Claimant has retained its solicitors on a Conditional Fee Agreement basis and Defendant's costs and its own disbursements are at least partly covered by After the Event Insurance. Some of the disbursements are being funded privately by a director of T&S.
3. Following earlier hearings in which the Court ordered security for costs against the Claimant, most latterly in December 2011, a Pre-Trial Review was held on 17 February 2012. It was clear at that PTR that the Claimants were behind schedule and draft amendments to its Particulars of Claim were presaged. At that hearing, it was resolved that:

(a) The trial bundle, for which the Claimant was to have primary responsibility for providing, was to be prepared, finalised and served by no later than 29 February.

(b) Final versions of supplemental witness statements from three witnesses were to be served by 22 February.

(c) Any draft amended Particulars of Claim were to be served by 24 February.

4. Since then, the Claimant has fallen behind even this belated schedule. 4 of the 13 trial bundles were provided to the Defendant's Counsel on 2 March and the remaining 9 on 6 March; no bundles have yet been served on the Defendant's solicitors. Even the Claimant's Counsel does not yet have a complete set of the bundles. The three witness statements in question have not yet been served. Two draft supplemental statements were served late on 1 March and the Claimant has indicated that more supplemental statements or at least revisions are to follow, although these have not yet been served. A first draft amended Particulars of Claim was served on 28 February (without schedules), albeit that on 29 February a revised draft with schedules also was served. A further revised draft is due to be served, but has not yet been.
5. As a matter of urgency, and at the instigation of the Defendant who is justifiably concerned to know with precision what case it has to meet at trial, the Court has convened a further Case Management Conference to see if this case can be put back on track.
6. Counsel for the Claimant, with commendable frankness, has explained that there has been a resources problem. She says that "the reality is that the Claimant only has the resources that it has" and that "whilst the Claimant would like to have several fee earners working on this case, resources are limited". This has been compounded by the breakdown of the Claimant's Solicitors' bulk copier/scanner between 27 February and 1 March and an assistant solicitor contracting chicken pox in February.
7. She has proffered the following timetable:

(a) the final draft amended Particulars of Claim by 9 March.

(b) bundles to the Defendant's solicitors to be provided by later today.

(c) further revised statements by 9 March.

(d) copy drawings by 9 March.

8. This is a wholly unsatisfactory way of conducting litigation in the High Court, let alone in any other court. This is the Claimant's claim for over £3 million; with interest it is conceivable that the claim could exceed £4 million. With costs on a Conditional Fee Agreement and ATE insurance basis, at worst the Defendant could be facing a liability of over £5 million.
9. Generally and certainly in this case, the conduct of preparing bundles is on the Claimant. It is very important that bundles are prepared in sufficient time so that all parties can prepare for trial; Counsel need to prepare their cross-examination and opening submissions by reference to those bundles and solicitors need the bundles so that their witnesses can consider them afresh. The Court needs the bundles so that the judge can start to do some pre-reading. The Defendant needs to be given the opportunity to add to the bundles.
10. It is axiomatic that a claimant which wishes to alter its case produces a draft amendment in plenty of time before the trial, if at all possible. It is not good enough usually to indicate in correspondence what the amendments might be. The defendant needs to see how it is put in pleading form. An application needs to be issued for permission to amend in the absence of consent.
11. The production of late witness statements does of course happen from time to time but it is highly desirable that a party seeking to rely on the evidence contained in such statements produces them as soon as practicable. Again it is generally not acceptable to indicate broadly what that evidence might be in correspondence. A defendant on the receiving end is entitled to see what the witness is actually going to say, particularly if, as here, Counsel for the Defendant will have to cross-examine those factual witnesses first.
12. The Court is not impressed with the explanation that it is a lack of resources which has brought about the delays. If parties make arrangements with their solicitors whereby the solicitors are paid on a Conditional Fee basis and with the benefit of ATE Insurance, those solicitors are professionally bound to provide the necessary resources to conduct the case efficiently and fairly. If additional photocopiers are required, they should be provided and, if not available in-house, outside commercial copiers must be used. If additional solicitors or Counsel are required to keep to the Court's or any agreed timetable, they must be deployed. One has to bear in mind that, although solicitors are taking a risk in proceeding on a Conditional Fee basis, they have doubtless what they consider to be a reasonable chance of recovering up to 100% or even more by way of uplift on their usual fee if their client succeeds.
13. The real question now arises in this case as to what is to be done. Having heard the parties, I will make orders as appropriate which will be recorded in the Order which is to be drawn up by Counsel. There is now broad agreement as to the further directions which in the context of the requirements for trial are to be by way of final order.