Jersey Unreported Judgments

Lease - directions in relation to the filing of a Scott Schedule

[2019]JRC092

Royal Court

(Samedi)

23 May 2019

Before     :

Advocate Matthew John Thompson, Master of the Royal Court.

 

Advocate J. N. Heywood for the Plaintiff.

Advocate J. D. Garrood for the Defendant.

judgment

the MASTER:

1.        This judgment contains my reasons for issuing certain directions in relation to the filing of a Scott Schedule and when the Scott Schedule should be provided.

2.        The background to the present dispute contends whether or not the defendant has complied with redecoration and repair works and other obligations said to be required pursuant to a lease granted by the plaintiff dated 1^st March, 1996 and assigned to the defendant on the 3^rd May, 2013.  The allegations were contained at paragraph 14 of the order of justice which pleads as follows:-

"14.     The Defendant is in breach of contract under the terms of the Lease and the Assignment in that it:

(a)       Failed to keep the Demised Premises in a state of good repair generally and in any event to a satisfactory standard pursuant to clause 5.6.1 of the Lease;

(b)       Failed to carry out the specific repair Works pursuant to clause 1.3.1 of the Assignment;

(c)       Failed to decorate the Demised Premises according to the timetable set out at clause 5.7 of the Lease;

(d)       Failed to carry out the Internal Decoration required under clause 1 .3.4 of the Assignment and failed to carry out the External Decoration under clause 1 .3.3 of the Assignment to the satisfaction of the Plaintiff;

(e)       Failed to provide relevant electrical certification;

(f)        Failed to provide a fire assessment or fire certificate pursuant to clause 5.26.3 of the Lease and failed to evidence its obligations under clause 5.26.1 of the Lease; and

(g)       Failed to reimburse the Plaintiff for its costs pursuant to clause 5.18 of the Lease."

3.        The defendant's answer at paragraph 9 pleads as follows:-

"The Defendant is carrying out the works set out in the Schedule in accordance with its obligations under the Lease and Assignment."

4.        The matter first came before me for a directions hearing on 14^th January, 2019, when I adjourned matters for three months to enable the repair works to be completed.  In granting the adjournment I observed that the order of justice at paragraph 14 failed to plead the material facts to set out why the premises were not in a state of good repair required by paragraph 14. (a) and which of the specific repair works required had not been carried out.

5.        I also observed that the answer of the defendant to paragraph 14 failed to plead to each of the subparagraphs of paragraph 14 of the order of justice and so was not satisfactory because the defendant's case was not made clear in relation to each allegation of breach.

6.        The matter came back before me for directions on 14^th May, 2019 because it was the defendant's position that the works had now been completed.  In that regard I was shown a certificate of completion issued by the defendant's surveyor.  I was also provided with a schedule of valuation of works produced by the defendant's surveyor.

7.        The dispute between the parties was when a Scott Schedule should be produced and in particular whether it should follow discovery and witness statements or whether the exchange of schedules should occur first.

8.        Advocate Heywood argued that without discovery his client was not in a position to know what works had been carried out and whether they had been carried out satisfactorily or not.  A simple inspection by their surveyor was not sufficient.  They needed to analyse all the contractual documentation and invoices in order to identify the work had been done and if it had been done, whether it had been done properly.  Discovery would become proportionate because the defendant could always determine what was relevant.

9.        He reminded me that the defendant should have completed certain works within 12 months of the assignment but had failed to do so.

10.      Advocate Garrood argued that a Scott Schedule was a form of further and better particulars.  Without understanding what breaches were alleged the defendant did not know what case it had to meet and what discovery it then had to produce.  Otherwise discovery would be disproportionate.  The purpose of the Scott Schedule was therefore to better identify the issues in dispute and to avoid larger of amounts of irrelevant material having to be discovered.  He referred me to Dilapidations - The Modern Law and Practice 2013-14 by Nicholas Dowding QC and Alison Oakes BA.  At paragraphs 38-18 the Scott Schedule was described by the authors as:-

"a form of pleading which brought both parties cases in relation to each of the disputed items, together in tabular format in a single document which would easily be referred to by counsel, witnesses and the judge throughout the trial". 

11.      At paragraph 8-18 the extract provided also stated:-

"It is important that the defendant pleads its case properly in the Scott Schedule.  The purpose of the Schedule is to enable both sides to know what the issues are.  A bare denial of liability for a particular item does not advance matters."

12.      Paragraph 38-18 later continued:-

"It should be emphasised that the Scott Schedule is designed to encapsulate the parties' respective cases in relation to the detailed items of claim, and is taken to be without prejudice to any defence of a general nature which has been raised in relation to liability or quantum."

"As well as saving much time during the trial itself, the Scott Schedule also serves to concentrate the parties' minds at a relatively early stage upon the exact nature of their detailed cases, and the nature and importance of the issues which divide them.  The preparation of the Schedule at an early stage will thus give both parties an opportunity to narrow the differences between them, and may assist them to reach a realistic compromise.  In all save the simplest cases, therefore, it is recommended that an order should be sought as soon as practicable for the preparation of a Scott Schedule."

13.      Although not referred to by counsel, I also consider it appropriate to refer to observations in the Civil Procedure Guide 2019 Volume 2 at paragraph 2C 40/5.6 page 592.  This section also contains guidance on Scott Schedules and their use in the Technology and Construction Court in England including the following:-

"The secret of an efficient Scott Schedule lies in the information that is to be provided and its brevity, excessive repetition is to be avoided.

It is important that the defendant's responses to any such Schedule are as detailed as possible."

14.      Paragraph 5/6.2 also states:-

"nevertheless before any order is made or agreement is reached for the preparation of a Scott Schedule both the parties and the court should consider whether this course (a) will generally lead to a saving of costs and time or (b) will lead to a wastage of costs and effort [because the Scott Schedule will be simply be duplicating earlier schedules or experts reports].  A Scott Schedule should only be ordered by the court or agreed by the parties in those cases where it is appropriate and proportionate."

15.      In my judgment, it was appropriate to order a Scott Schedule to be provided before discovery in this case.  This was because the plaintiff's case in relation to why the defendant had failed to keep the premise in a state of good repair and why repair works pursuant to the assignment had not been carried out was not set out or pleaded in its order of justice beyond a bare assertion. 

16.      Yet as noted in an email dated 7^th January, 2019, from Mr Robinson of BCR Law to Mr Robson of Carey Olsen, the plaintiff's surveyor had already produced two schedules of dilapidations which informed the current schedule of works.  The progress of the works were also being monitored to some degree by the plaintiff's surveyor.  The plaintiff was therefore in a position having set out what works were required and having monitored the works in some respect, to identify which works it alleged had not been carried out or had not been carried out to an appropriate standard.  I accept the plaintiff may have to take a cautious approach in respect of certain areas where it requires more information from the defendant to satisfy itself about whether the works had been carried out to an appropriate standard but that is an issue that can be made clear in the relevant part of the Scott Schedule.  Notwithstanding this, the plaintiff appears to have been involved sufficiently to be able to make its case clear as is the norm.

17.      The alternative would be otherwise to require discovery for every item of works carried out in the schedule of works even if not disputed.  In my judgment that is not proportionate.  The Scott Schedule will therefore enable the parties to identify areas in dispute and to manage discovery accordingly.  Without a Scott Schedule the defendant does not know the case it has to meet and therefore cannot with its advisers determine what documents are relevant.

18.      I should add that while the purpose of a Scott Schedule is to clarify a party's case in construction disputes, my decision is only that it is appropriate to order such a Schedule at this stage before discovery to identify the breaches relied upon because the plaintiff's order of justice does not do so and because the plaintiff has sufficient knowledge in order to identify such breaches through the surveyor it has retained.  It does not follow that a Scott Schedule will be ordered at every stage before discovery.  Rather it will be necessary to consider on a case by case basis whether the ordering of a Scott Schedule is needed and is proportionate and if so at what stage. 

19.      In addition, just because the court has power to order a Scott Schedule, this power should not detract from parties in their pleading setting out all material facts relied upon, which did not occur in this case. 

20.      I should add for the sake of completeness and fairness that I also required the defendant to provide more information to make its case clear in respect of its general denial of paragraphs 14 (c), (e), (f) and (g) of the order of justice which were separate issues to repair disputes.  The defendant's response to the Scott Schedule would then focus on whether repairs had been carried out and any allegations about the adequacy of such repairs.

21.      Finally, in terms of the format of a Scott Schedule, Dowding and Oakes on Dilapidations suggested the following headings:-

"An item number for ease of reference;

The number of the clause alleged to have been broken;

The breach complained of;

The remedial works required;

The tenant's comments;

The landlord's comments;

The landlord's costing of the landlord's items;

The tenant's costing of the works admitted or suggested by the tenant."

22.      While I will leave the precise format of the Schedule to the plaintiff, the above seems to me to be a sensible approach and which should broadly be followed.

23.      Finally, I record for completeness that directions were also given in relation to discovery, witness statements and expert evidence.  However, there was no dispute about these other orders.

Authorities

Dilapidations - The Modern Law and Practice 2013-14.

Civil Procedure Guide 2019 Volume 2. 

Dowding and Oakes on Dilapidations.