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
		15 May 2014

 


Mr Justice Akenhead:

1. The Claimant, Parkway Construction Ltd ("Parkway") retained by the Defendant, Howard de Walden Estates Ltd ("HDW"), to carry out building works, seeks mainly declaratory relief by way of a summary judgment application which has been described by its own advocate representative as unorthodox. That it is unorthodox, at the very least, arises out of the facts that Parkway's claims in these proceedings relate to its final account, for loss and expense, for extension of time and for declarations germane to such alleged entitlements and that these claims are factually challenged.

Background

2. In September 2007, Parkway was employed by HDW to carry out structural alterations and external repairs and construct a mansard roof ("the Works") at 42-50 Weymouth Street, London W1. The contract was in the JCT Intermediate form of Building Contract (Revision 1 2007). The Contract Administrator was Howard de Walden Management Ltd. Parkway was required to commence the Works and, subject to any entitlements to extension of time, to complete by 22 September 2008. The Contract Sum was £1,557,670. Liquidated damages for delay were to be at the rate of £24,000 per week.
3. Clause 2.21 provided for practical completion of the Works to occur when the Contract Administrator so certified. The liquidated damages provisions were:

"2.22 If the Contractor fails to complete the Works….by the relevant Completion Date, the… Contract Administrator shall issue a certificate to that effect…

2.23.1 Provided:

.1 the Contract Administrator has issued a certificate under rule 2.22; and

.2 the Employer has informed the Contractor in writing before the date of the Final Certificates that he may require payment of, or may withhold or deduct, liquidated damages,

the Employer may, not later than 5 days before the final date for payment of the debt due under the Final Certificate, give notice in writing to the Contractor in the terms set out in clause 2.23.2.

.2 A notice from the Employer under clause 2.23 shall state that for the period between the Completion Date and the date of practical completion of the Works…:

.1 he requires the Contractor to pay liquidated damages at the rate stated in the Contract Particulars or lesser rate stated in the notice, in which event the Employer may recover the same as a debt; or

.2 that he will withhold or deduct liquidated damages at the rate stated in the Contract Particulars…from monies due to the Contractor."

4. Clause 8 addressed termination by the Employer. Provision was made by Clause 8.4 for termination for default on the part of the Contractor and by Clause 8.5 for termination when the Contractor is insolvent. Clause 8.7 dealt with the consequences of termination:

"If the Contractor's employment is terminated…

.1 the Employer may employ and pay other persons to carry out and complete the Works and to make good any defects of the kind referred to in clause 2.30…

.3 …clauses 8.7.4, 8.7.5 8.8 shall thereupon apply and any other provisions of this Contract which require any further payment or any release of retention to the Contractor shall cease to apply;

.4 within a reasonable time after the completion of the Works the making good of defects…an account of the following shall be set out in a certificate issued by the...Contract Administrator or a statement prepared by the Employer:

.1 the amount of expenses properly incurred by the Employer, including those incurred pursuant to clause 8.7.1…and of any direct loss and/or expense to the Employer and for which the Contractor is liable, whether arising as a result of the termination or otherwise;

.2 the amount of payments made to the Contractor; and

.3 the total amount which would have been payable for the Works in accordance with this Contract.

.5 If the sum of the amounts stated under clauses 8.7.4.1 and 8.7.4.2 exceeds the amounts stated under clause 8.7.3, the difference shall be a debt payable by the Contractor to the Employer or, if that sum is less, by the Employer to the Contractor."

5. It is unnecessary to set out here the detailed history. The Works were not finished by the original Completion Date. Parkway had administrators appointed on 25 March 2009 at which time it seems likely that the Works were at least to some extent still incomplete. The administrators were appointed joint liquidators on 26 September 2010. It seems unlikely on the information currently available before the court that there will be any money for unsecured creditors. History does not currently relate what happened in any detail in 2009 but claims for extension of time prepared by some claim consultants (possibly independent and possibly not) and for allegedly unpaid money of one sort or another were submitted in the April to June 2010 period on behalf of Parkway to HDW. The extension of time claim indentified 13 "Relevant Events" said to have caused delay and justifying extension of time. These included late design information in relation to the rear gantry fire escape structure and a stair enclosure.
6. An extensive Pre-Action Protocol process took place between December 2010 and September 2013. There were complaints during this as to whether Parkway should supply more information and documentation than it had done and as to whether HDW was dragging its feet. The letter of claim was dated 2 December 2010 and the response was on 31 May 2011. In the response, HDW's solicitors indicated that it had retained consultants (Mr Bevis, Mr Somerset and Mr Wilson) to review the variation valuation, Parkway's and HDW's other financial claims and delay aspects respectively, stating that all the delays were Parkway's responsibility, that no extension entitlement had been established, that there was no material delay in information or instruction release relating to the gantry and stairway and that over £700,000 net was due to HDW. Relatively detailed breakdowns were provided to illustrate this. Parkway's solicitors' reply on 5 July 20-11 was to suggest that this was all "incorrect and historically reconstructive" but otherwise declined to reply in detail, instead calling for a meeting. HDW was reluctant initially to have a meeting and correspondence continued. Parkway's solicitors served a draft statement from a Mr Griffin, a director of Parkway, which addressed the gantry and stairway issues. It seems that a meeting may have taken place in September 2011. A draft Particulars of Claim was provided before a or another without prejudice meeting in late February 2012. There then seems to have been a delay through to August 2012 due to Mr Jones' workload; he wrote on 2 August 2012 responding in detail to various written representations made by HDW's solicitors in March 2012. Schedules were exchanged thereafter setting out the parties' opposed positions on numerous financial claims. There was then a further delay between November 2012 until late April 2013 due to wholly excusable personal reasons on the part of Mr Jones. A further without prejudice meeting took place in July 2013. Although Mr Jones both in correspondence and in argument hinted that concessions were made by HDW in that meeting, he accepted that due to the without prejudice nature of the meeting I could draw nothing from that. An impasse was reached with each party maintaining its position that the other owed money to it.

The Particulars of Claim

7. Parkway issued its Claim on 3 March 2014 with the Particulars of Claim attached. Mr Jones accepts that at least the relief claimed is "far from orthodox". It contains errors, for instance an eventually admitted overstatement of the total sum said to be due (£1,276,892) by about £500,000. Although there is no pleaded entitlement to any particular form of Alternative Dispute Resolution, nonetheless it complains that its willingness to engage in mediation, binding adjudication, expert determination or some other inadequately identified form of ADR has not been reciprocated by HDW. The paragraph numbering is awry. It attaches, unhelpfully, almost 400 pages of documentation exchanged during the Pre-Action Protocol period which primarily highlights that there are extensive factual and legal disputes. The pleading is at best idiosyncratic.
8. It starts in a relatively conventional manner identifying who Parkway and HDW were, that there was a contract and who the Contract Administrator was (a Mr Fisher being identified as the person actually involved). It set out various contract clauses such as those relating to information release (Clause 2.11), Relevant Events (Clause 2.20.6), recoverable delay related loss and expense (Clause 4.17) and some of the insolvency and termination provisions.
9. It attaches the Pre-Action Protocol correspondence. It does not as such identify any pleaded case as to how why or when Parkway's employment was terminated, albeit it accepts that its "involvement in the Works ceased in March 2009" (Para. 7.1). It pleads in very general terms in relation to delay matters save in relation to the fire escape gantry and stair enclosure. At Paragraph 7.2 (which runs to 8 lines) Parkway pleads a general complaint that design information was issued late:

"…Design information was effectively provided on a "design as the Contract went along" basis, which meant that the Claimant was prevented from progressing its work, organising its supplies and lead times properly or working on anything other than limited work fronts at the same time. Particulars of the Claimant's position as to the delays caused to the Claimant by this approach to design provision by the Defendant are also set out in the Claimant's formal notification under clause 2.19.1 of 23^rd December 2008."

This letter, not attached, only seeks to "provide general areas of delay which have prolonged the works" with a detailed submission being "presently drafted". It refers in very general terms to some but not all the heads of delay set out in the later May 2010 delay claim and provides no explanation as to how or for how long the Works were delayed at all or by any of the general matters raised in the letter.

10. The Particulars of Claim (Paras. 8 to 18) then go on in some detail to assert how allegedly late design information and instructions from HDW or its Contract Administrator arose in the December 2008 to February 2009 period. There is no explanation as to what if any delay was caused by these matters and how it arose. It is wholly unclear if Parkway is pleading an entitlement to an extension for anything other than the latter fire escape gantry and stair enclosure events. Paragraph 19 simply asserts that the "Claimant has applied for an extension of time, including by formal notification under clause 2.19.1 dated 23^rd December 2008". Paragraph 20 does plead an entitlement to extension of time for the fire escape gantry and stair enclosure events but does not explain what period is claimed. Parkway goes on to complain in Paragraph 21 that no extension of time has been granted, although it sets out the contents of an email from Mr Fisher on 2 December 2008:

"Following our meeting a few weeks ago, I will have to issue a certificate on non-completion for the project as no explanation for an extension of time has been received. I still believe that a maximum of 10 week extension from the 22^nd September is the most that can be justified, although I will review your information and the level of damages once I receive your details."

It relied on this as an admission by Mr Fisher "that some extension of time is due".

11. Parkway then plead that it sent to HDW its accounts, extension of time and a loss and expense claim in April and June 2010; it is here that its £500,000 arithmetical error occurs. Paragraph 27 then complains that HDW should have issued but has failed to issue an account or statement under Clause 8.7.3, although it does not plead that as such there has been a termination or that Parkway was insolvent. It asserts that, if HDW had done this, it would have certified a net sum of £1,276,891. 98 (albeit that this was later accepted to be grossly exaggerated). Paragraph 29 then refers to a detailed "Financial Summary" provided on behalf of HDW during the Pre-Action Protocol process in May 2011 which showed a substantial net sum due to HDW (over £700,000) and spells out its assertions as to why this Financial Summary is or may be wrong or unsubstantiated.
12. The relief claimed, set out over three pages in Paragraph 32, is extensive and various, much of it being in the form of declarations. Extensions of time or declarations therefor are claimed (albeit no specific extension is sought); a declaration is claimed to the effect that "any late or inadequate design and information provision in respect of the gantry, stair enclosure and staircase would in principle entitle the Claimant to an extension of time to allow the Claimant a reasonable period of time to complete the Works from the time of such provision being properly made". Declarations are sought that no liquidated damages could be deducted to the extent that an extension is due, that loss and expense is in principle due "commensurate with such extension of time as is awarded", that HDW was not entitled to what it was asserting was due to it in the Financial Summary and that HDW had failed to provide a proper account under Clause 8.7.3. Money was also claimed, £125,000 if the account was not provided or otherwise £1,276,891. 98.

The Summary Judgment Application and evidence

13. Parkway issued its summary judgment application claiming 10 orders or declarations and seeking an order for a stay to allow for ADR. The 10 orders or declarations sought were:

"1.1 the Completion Date be extended beyond the time when the Claimant's involvement on the Contract ceased (March 2009)…or for such alternative period as the court can determine on the facts matters [sic] set out in the Particulars of Claim and without carrying out a full analysis of the matter is notified to the Contract Administrator…

1.2 alternatively, the Defendant extend the Completion Date to allow for a reasonable period to have completed the Works beyond the time when the Claimant's involvement on the Contract ceased (or for such alternative period as the Defendant shall reasonably determine on the facts set out in the Particulars of Claim and other matters notified to the Defendant by the Claimant and any order made pursuant to sub-paragraph 1.3 below).

1.3 alternatively, any late or inadequate design and information provision in respect of the gantry, stair enclosure and staircase would in principle entitle the Claimant to an extension of time to allow the Claimant a reasonable period of time to complete the Works from the time of such provision being properly made.

1.4 [the] Defendant is not entitled to deduct Liquidated and Ascertained Damages in the sum of £630,857.14 or, alternatively, the Defendant is not entitled to deduct Liquidated and Ascertained Damages to the extent that the contract falls to be extended pursuant to any order pursuant to sub-paragraphs 1.1-3 above.

1.5 the Claimant is in principle entitled to loss and expense commensurate with such extension of time and is awarded under sub-paragraphs 1.1-3 above.

1.6 the Defendant is not entitled to deduct or take into account the sums set out and referred to in sub-paragraphs 29.4 of the Particulars of Claim when calculating the sums otherwise due to be Claimant.

1.7 the Defendant is not entitled to deduct or take into account the sums set out and referred to in sub-paragraphs 29.5-29.6 of the Particulars of Claim when calculating sums otherwise due to the Claimant unless it shall have provided to the Claimant by [-] April 2014:

.1 reasonable and complete details of the allegedly defective and incomplete works sufficient for the Claimant to understand what is alleged by the defendant,

.2 particulars of the documents/contractual provisions allegedly not complied with all completed by the Claimant by reason of the alleged defects incompletions [sic],

.3 reasonable and complete details of what work was allegedly carried out by and/or on behalf of the Defendant to rectify and/or complete the allegedly incomplete and defective work.

.4 particulars out how the sums claimed as deductions by the Defendant were caused by and/or relate to the information provided pursuant to sub-paragraphs 1.1-3 above.

1.8 in breach of clause 8.7.3 of the Contract the Defendant has failed to provide a proper account and/or certificate as required therein,

1.9 the Defendant provide on or before [ April 2014] a proper account and/or certificate (taking into account the orders and declarations made pursuant to paragraph 1.1-8 above) as required by clause 8.7.3 of the Contract,

1.10 the Defendant do pay the sum accounting/certified pursuant to paragraph 1.9 about it the Claimant pursuant to sub-clauses 8.7.4 of the Contract."

14. This was accompanied by two short statements from Mr Jones and Mr Griffin. Mr Jones says in his two-page statement that both "the background and detail of this matter are set out in the Particulars of Claim". He says that HDW "has self-evidently from the outset of the Pre-Action Protocol taking the excuse of the Claimant's insolvency to treat the Claimant's claim as one that could simply be kicked into touch and would go away", going on that the Claimant "had not altered their position by £1 from the outset…and have seemingly completely and cavalierly ignored their contractual responsibility in respect of granting extensions of time…and have refused to provide any information and explanation to explain other major deduction". He goes on to talk about the "abuses of the Defendant both in contract administration and under the Pre-Action Protocol" adding that the Claimant believes that the Defendant "has no real prospect of defending claims and reliefs set out in the Notice Application". He does acknowledge that these "reliefs…are far from orthodox". Mr Griffin in a one-page statement says that his statement provided in the Pre-Action Protocol was true and asserting that the "delay…in providing information in respect of the staircase gantry and rear staircase enclosure…severely delayed the contract as a whole" referring to the fact that the information was requested in April 2008 and if the necessary design information had been received shortly thereafter Parkway could have placed orders and had the gantry fabricated during late summer 2008 starting from about September 2008 with the contract being "completed comfortably before Christmas 2008".
15. HDW responded initially with two substantial witness statements, one from Mr Cobb of its solicitors and the other from Mr Fisher. Mr Cobb said that the application was misconceived and the Particulars of Claim seriously and comprehensively deficient disclosing little more than allegations. He summarises the position that no further payment is due to Parkway and that a net £860,983.54 is due to HDW. He asserts that the effect of the insolvency is such that the claims and cross claims are merged so that judgement can not be given on Parkway's claims in isolation. The history of the pre-action correspondence made it clear that his client has disputed the claim from the outset and by substantially more than bare denial, with schedules being served which set out the cost of completion and rectification as well as relating to the measured works and variation accounts. He denies what Mr Jones says about "kicking into touch", suggesting that it is Parkway which was not forthcoming with proper particulars or supporting evidence. He challenges as unacceptable the relief which has been claimed on the application. He challenges the evidence of Mr Griffin in any event but also on the basis that such evidence as there is about delay is wholly inadequate in a number of respects, for instance the absence of explanation about the causal relationship between the alleged delaying events and the length of extension of time claimed. He notes that the application is unsupported by any expert evidence. He challenges in detail the adequacy of the Particulars of Claim, for instance in relation to delay and loss and expense. Events are referred to in some detail in relation to the measured account, extension of time and loss and expense claims. He says that, instead of there being money due to Parkway, on its measured account there is a sum of £374,000 due net to HDW, attaching the Scott Schedule appended to the pre-action letter of response, which sets this out in detail. He explains the cross claims; for instance, in relation to liquidated damages he refers to 2.23, the Contract Administrator's Clause 2.22 certificate of non-completion dated 3 September 2008, notification dated 6 May 2010 under Clause 2.23.2 requiring payment of liquidated damages and notice under Clause 2.23.1 given within the Pre-Action Protocol response letter of 31 May 2011 and the Financial Summary attached. He sets out in some detail the other cross claims of HDW.
16. Mr Fisher's first statement, which attaches substantial contemporaneous back-up documentation, addresses in detail why he believes that Parkway is not entitled to an extension of time or loss and expense related thereto. He explains that, although Parkway has concentrated on the gantry and staircase issues which occurred from around late 2008 onwards, there were significant causes of delay before then: in particular he refers for instance to the scaffolding and demolition works which he suggests were recorded as having caused a delay of two months by March 2008. He says that information relating to the gantry and stair enclosure was not issued late because in effect the information was not needed until later because Parkway was so far behind, due to its own fault. He believed that the delay latterly was seriously contributed to by Parkway's financial difficulties.
17. This was responded to in a very short witness statement from Mr Jones which attaches two e-mails and refers to three extension of time notifications or requests in February and March and December 2008. He also passes on something which Mr Griffin told him about Mr Fisher's statement in relation to the gantry, disputing part of what Mr Fisher said. Mr Fisher in a second witness statement comments on and explains the contents of the documents referred to in Mr Jones's second statement; he also challenges what Mr Griffin says on the facts.
18. Mr Jones appeared as advocate at the hearing. I gave him permission to do so although he is not a licensed advocate, albeit I asked him to write to the Court explaining why he considers he is entitled to appear in the High Court as advocate on a contested application such as this. I was anxious however not to adjourn the case and incur expense. That said, he was extremely courteous to the Court and, on occasion at least, he made some proper concessions and pursued at least some properly arguable points. He has since the hearing written to me a very proper letter accepting that due to an honest misunderstanding and due to personal reasons (which I wholly understand and accept) he had no rights of audience; I will certainly not take the matter any further.
19. He produced a skeleton argument which broadly supported his statements and pleading. He strongly suggested that HDW was being intransigent, albeit that his application was not "conventional". He said on more than one occasion that HDW was wrong and had acted in a "distasteful" way and that his clients were "totally and utterly frustrated". He said that HDW was "adopting a wholly wrongful and blatantly dishonest stance". He argued that there must be some money due to his liquidator clients. He said that Mr Fisher had in his e-mail of 2 December 2008 as good as admitted that some extension would be due (up to 10 weeks) and therefore up to £240,000' worth of liquidated damages was not recoverable. He argued that there had been a contractual termination and the effect was to eradicate any accrued entitlement to liquidated damages. He said that there had never been effective "notices" under Clause 2.23.1 so that no liquidated damages were due at all. He accepted in oral argument that it was arguable that HDW or the Contract Administrator had issued a statement or certificate under Clause 8.7.4. He asserted that, as Parkway was entitled to "at least 10 weeks extension of time", he only needed to consider the gantry and staircase claims; he complained that HDW had not replied to the individual paragraphs addressing this in the Particulars of Claim. He challenged the viability of the cross claims.
20. Mr Hanna in his written skeleton concentrated in effect on the points put forward by Mr Cobb and Mr Fisher. I found it unnecessary to call upon him to reply orally.

The Law and Practice

21. CPR Part 24.2 makes it clear that the summary judgment procedure only applies in relation to a defendant where the defendant "has no real prospect of successfully defending the proceedings". That prospect must be real and not fanciful, false or imaginary. It will be a rare case (if ever) in which a fact based claim disputed in full on the facts for summary judgment can be given; this is because it is not appropriate for the Court at this procedural stage to conduct a factual inquiry into the disputed facts. The rule was considered in some detail in the House of Lords in Three Rivers DC v Bank of England (No 2) [2001] UKHL 16, in particular in the leading judgment of Lord Hope:

"93. In Swain v. Hillman Lord Woolf gave this further guidance at pp 94 and 95:

"It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and, I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know this as soon as possible….

"Useful though the power is under Part 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial. As Mr Bidder put it in his submissions, the proper disposal of an issue under Part 24 does not involve the judge conducting a mini trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily."

(6) Whether the claim should be summarily struck out

94. For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is - what is to be the scope of that inquiry?

 95. I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all."

Discussion

22. I indicated orally at the end of Mr Jones' oral argument that the application would be dismissed as not only unjustified but also as misconceived and that the Particulars of Claim were inadequate. My reasons are many and various.
23. It is clear that underlying this whole dispute both on Parkway's claims and also on HDW's cross claims there are fundamental and, on the presented evidence on the application, irreconcilable differences of fact between the parties. The most obvious is that relating to delay:

(a) What the Particulars of Claim are seeking to do is to focus and rely upon the gantry and stairway complaints which on any account are thought by both parties to have only begun to have had an effect (if any) in or after December 2008 in the sense that Parkway appears to think that it has established by way of admission by Mr Fisher on December 2008 to the effect that some entitlement to extension of time was due for other reasons for events which occurred before then.

(b) It is absolutely clear however that there is a factual dispute about whether there is any entitlement to extension of time for the pre-December 2008 events. The so-called admission is at best a limited one. Mr Fisher in the e-mail in question is actually saying first that he will have to issue a certificate of non-completion because to date no explanation in relation to any extension of time claim had been received from Parkway. That is another way of saying that Parkway had not up to that time established any such entitlement. He only goes on to say that "a maximum of" 10 weeks extension is the most that could be justified. That is not an admission in any event that 10 weeks extension is justified but that at most 10 weeks could possibly be justified; the tone of the letter however is that it has not yet been justified.

(c) The reality seems to have been however no arguably comprehensive extension of time claim was submitted until about May 2010 some 18 months later. That was by way of an expert's report which is not even prayed in aid by Parkway in these proceedings; arguably, that expert was not independent and its contents have not sought to be supported as such by Parkway.

(d) Mr Fisher addresses the issue why the pre-December 2008 events were on analysis of the contractual fault or responsibility of Parkway. There is little evidence from Parkway which is supportive of any challenge to this, other than the alleged admission on 2 December 2008, which, even if it was a clear admission (which it is not), is not in some way binding or even of much weight, particularly where there is evidence supported by statements of truth that no grounds exist for any such extension of time.

(e) There are the clearest factual disputes on the evidence before the court whether the gantry and stairway matters gave rise to any delay. Unsurprisingly, the contract between the parties in Clause 2.11.2 calls for information and instructions to be provided "at the time it is reasonably necessary for the Contractor to receive" them. That raises currently irreconcilable factual and evidential issues between the parties, namely as to whether Parkway actually reasonably needed the information relating to these areas of the works before that time that it actually received it.

24. The same is true about the other parts of HDW's cross claims. There is clear evidence from Mr Fisher and Mr Cobb supporting not only the valuations put forward by HDW based upon expert advice but also the claims for defects, costs of completion of the works and loss of rental income. The Court is simply not in a position in which it can say that this evidence, supported by statements of truth, is obviously wrong or untrue. It is not for the Court to double-guess what the eventual trial judge will probably decide following the exchange of documentation, witness evidence and expert reports. It is not fair or sensible for the Court to begin an exercise which does no more than forecast what the result might be.
25. There were other arguments which I should also address:

(a) The first is the argument that, once there is a termination for insolvency or indeed otherwise, any accrued right including for liquidated damages for delay in favour of the Employer (HDW in this case), is eradicated or, as put in argument, wiped clean. One only has to articulate the point to appreciate that, in the absence of the clearest wording, this would make no commercial sense at all. One could take an example of a contractor in culpable delay of 2 years on a 1 year contract whose employment is terminated for its fault; it would be extraordinary if the accrued rights to liquidated or indeed common law damages were eradicated. In my view, this interpretation is so unlikely as, at the very least, to give rise to a highly arguable case otherwise, If I had to decide that point now, I would decide that Parkway was wrong and that accumulated rights of action remain enforceable on and after termination.

(b) Although initially pressed otherwise, Mr Jones properly conceded that it was reasonably arguable that a statement had been provided by HDW under the provisions of Clause 8.7.4. Once he accepted that, his argument that the Court should in effect order that HDW or the Contract Administrator should do it again must fail because it does not have to be repeated. What much of the argument about this failed to appreciate is that there would be little or no point requiring HDW to redo this as the evidence suggests that it would come up with the same answer and also that any damages flowing from a failure to issue such an account or statement would only be whatever the current facts would reveal after a trial. Thus, if no extension of time is due, probably HDW would be entitled to the full liquidated damages claimed and Parkway would be entitled to little or no related loss and expense. Another problem and obstacle for Parkway in this regard is that its Particulars of Claim do not plead let alone explain that there has been a contractual termination or in fact that it was or became insolvent and if so when; the Court does need to tread carefully in inferring these types of fact.

(c) A slightly better argument was deployed by Mr Jones which related to the scope of any conditions precedent relating to the imposition of liquidated damages. The wording of Clause 2.23.1 does suggest that the Contract Administrator's certificate is a pre-condition but here it was not argued that there was not one, a valid concession, given that one seems to have been issued on 3 December 2008. It is also arguable that the Clause 2.23.1.2 notice is a necessary pre-condition but there is strong evidence that time and time again such notice was given not least during the Pre-Action Protocol process. Mr Jones' point was that on analysis the further notice which follows the proviso wording ("the Employer may…give notice in writing to the Contractor in the terms set out in clause 2.23.2") was also a pre-condition. This is an arguable issue which does not fall for decision but, if I had to decide the point now, I would have decided that it was not a pre-condition because it is not subject to proviso type language.

26. There is little or no point in the Court summarily issuing declarations that "any late or inadequate design and information provision in respect of the gantry, stair enclosure and staircase would in principle entitle the Claimant to an extension of time" or "the Claimant is in principle entitle to loss and expense commensurate with such extension of time as is awarded" because they are theoretical. Late information might delay but does not necessarily do so; delay sometimes but not always leads to a loss and expense entitlement. I am also reluctant at this stage to order that the parties engage in further ADR, since the parties have had a number of without prejudice meetings which have not resulted in settlement
27. I consider that the Particulars of Claim are deficient in numerous respects, in particular in not pleading clear entitlements to extensions of time, what all the events were and how they caused delay. The pleading contains irrelevant matter such as that related to ADR which serves no purpose.

Decision

28. I have no hesitation in dismissing this application. It is wholly misconceived. The Pre-Action Protocol process threw up almost all the disputed areas of fact and entitlements which duly re-emerged in the evidence and argument on this summary judgment application. It is wrong in the TCC as elsewhere to seek summary judgment where a case which is dependant on fact is disputed on the facts. At the very least, a claimant should await the Defence (and Counterclaim) to see how it is put before embarking on an exercise such as Parkway sought to do here in circumstances in which the Pre-Action Protocol process threw up most of the material disputes about fact. It seems clear that Parkway has proceeded on a highly misguided tactical approach to seek to bring HDW to the table again; this sort of summary judgment application is entirely the wrong way to go about things. It is wrong for a claimant to draw any comfort from what may have been said in without prejudice discussions during the Pre-Action Protocol process so as tactically to mount this type of application in the hope that a defendant might give in. There were no open concessions by HDW and I can not receive evidence as to what may have been conceded on a privileged basis even on the most general broad brush way hinted at by Mr Jones.
29. I indicated that I would consider indemnity costs as an option and also, given Mr Jones' indications that his client would not probably proceed with these proceedings and the parlous financial position of Parkway, a stay of the proceedings pending the payment by Parkway of any costs order against it.
I received written submissions as to costs following the provision of the Approved Judgment I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
MR JUSTICE AKENHEAD

to each side. Mr Hanna seeks indemnity costs in the sum of £49,107.78 plus VAT. Mr Jones opposes indemnity costs because he says that there was something in the claim for extension of time and in effect being in liquidation Parkway could do little else. In my judgment, this is eminently a case for indemnity costs. The application and indeed the proceedings as formulated were verging on the hopeless with little or no prospect of success on any objective analysis. Parkway's application was dependent on the Court finding that there was likely to be substantial extensions of time due and final account sums due net to it and that the cross-claims stood no chance of success. The whole history of the Pre-Action Protocol process had demonstrated that there were factual disputes all the way down the line on pretty well all issues. It is not enough to say that a party in liquidation such as Parkway had no choice but to formulate unorthodox proceedings and pursue an even more unorthodox summary judgment application. Indeed there is a vice in this approach which is that, whilst Parkway and the liquidator were not obviously at risk for any costs because Parkway looks as if it is now insolvent and because its solicitors were on some sort of no-win no-fee basis of fee entitlement, the pursuit of highly questionable summary judgment application may well result in HDW not recovering its cost in any event.
30. There will therefore be an order that Parkway pays HDW's costs of and occasioned by the summary judgment application and hearing on an indemnity basis.
31. The summary bill is challenged by Mr Jones because the solicitors' rates are, he says, too high at £545/£540 (Grade A), £425 (Grade B or C) and £195 (Grade C) compared with the recommended rates for London 1, work on documents is too high at £16,236 and Counsel fees for advice/conference calls/documents and the hearing (£7,955.50 and £7,500) are too high. I consider that there is something in the first two points. The rates are very substantially above the recommended rates and, whilst there might be a reasonable enhancement for the specialist work involved, it is positively unreasonable that rates at that level should be allowed. That impacts on the second point as well, albeit I accept that by reason of the way the case and the application was presented there would have been a lot of time which had to be spent by HDW's solicitors.
32. All in all and taking the above into account, I summarily assess the bill at £44,000 plus VAT if it is established that HDW is not VAT registered.