“(1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).”
“If those three ingredients are capable of being pleaded, then there is a cause of action for a contribution. The making of a formal claim by A against B is not required by the [Contribution Act].”
“The case is Re a Company (No.006685 of 1996) [1997] B.C.C. 830, a decision of Chadwick J (as he then was), which refers back to a Court of Appeal decision and in particular the judgment of Oliver LJ in Re Claybridge Shipping Co SA, which had been decided in 1981 but was not reported until [1997] 1 B.C.L.C. 572. Chadwick J at 835 cited passages from Oliver LJ in the Claybridge case from which I quote one sentence: ‘On an application like this court necessarily has to take a view whether, on the evidence, there really is substance in the dispute which is raised.’”
“In my view those authorities and, in particular the authorities of the Court of Appeal to which I have referred, make it clear that the general rule under which this court refuses to entertain a petition founded on a disputed debt applies only where the dispute is a genuine dispute founded on substantial grounds; and does not preclude this court from determining - or entitle this court to decline to determine—the question whether or not there are substantial grounds for dispute. Indeed, in the passage from the judgment of Oliver LJ to which I have just referred, he pointed out that the court necessarily has to take the view whether on the evidence there really is substance in the dispute which is raised by the alleged debtor.” ‘On an application like this court necessarily has to take a view whether, on the evidence, there really is substance in the dispute which is raised.’” “In my view those authorities and, in particular the authorities of the Court of Appeal to which I have referred, make it clear that the general rule under which this court refuses to entertain a petition founded on a disputed debt applies only where the dispute is a genuine dispute founded on substantial grounds; and does not preclude this court from determining - or entitle this court to decline to determine—the question whether or not there are substantial grounds for dispute. Indeed, in the passage from the judgment of Oliver LJ to which I have just referred, he pointed out that the court necessarily has to take the view whether on the evidence there really is substance in the dispute which is raised by the alleged debtor.”
“[t]he mere fact that a party in proceedings not involving oral evidence or cross examination asserts that certain things did or did not occur, is not sufficient in itself to raise a triable issue. That evidence inevitably has to be considered against the background of all the other admissible evidence and material in order to judge whether it is an allegation of any substance. Once the court considers that the evidence is reliable in that sense, and not some attempt to obfuscate the real issues by raising a series of hopeless allegations then it does, of course, become necessary to consider what the legal consequences of it are.”
“The basic principle is that, until there has been such cross-examination, it is ordinarily not possible for the court to disbelieve the word of the witness in his affidavit and it will not do so. This is not an inflexible principle: it may in certain circumstances be open to the court to reject an untested piece of such evidence on the basis that it is manifestly incredible, either because it is inherently so or because it is shown to be so by other facts that are admitted or by reliable documents”
“with an eye to the Limitation Act to safeguard its position. No doubt its ultimate intention was and remains that the claim will encourage or force [the Applicant] to undertake remedial works (and presumably continue to seek funding to assist with such works.)”
“in all projects, [the Respondent] undertook the work whether as main contractor or as lead subcontractor”
“if it was instructed to design it in the way that it did. That might mean, for example, that it was instructed to use a particular cladding product that has transpired to be non-compliant with the regulatory regime.”
“In the first instance, the argument is that [the Respondent] took on work for or in connection with the provision of dwellings and in so doing undertook work not done in a workmanlike/professional manner, with proper materials so that the building (and/or the dwellings therein) was fit for habitation when completed, with the result that [the Respondent] is liable under the DPA. Put in the simplest possible terms, the argument is that the cladding is unsafe or deemed unsafe and [the Respondent] was responsible for it across every project. The type of presumed (or actual) claimants will obviously vary across the different projects.”
“The nature of the claims will of course be similar to the [Contribution Act] iteration of the same principle, i.e. that [the Respondent] took on work for or in connection with the provision of dwellings and in so doing undertook work not done in a workmanlike/professional manner, with proper materials so that the building (and/or the dwellings therein) was fit for habitation when completed. This direct cause of action applies across the range of projects referred to in my first witness statement including [Site T].”
“The work done on the development was done by [the Respondent] using various sub-contractors. This applied to design aspects in the same way as the construction work itself. … Design work in a project such as [Site T] is obviously an extensive and on-going process. Much of the design process within the project thus unfolded after the commencement of the construction work. … In case there be any doubt, the contractual arrangements surrounding the JCT contract between the housing association and [the Applicant] was not one wherein [the Applicant] did (or contracted with the architects and engineers to do) the design work with [the Respondent] following [the Applicant’s] instructions as far as the design was concerned. The design work was done by [the Respondent] with this being process spanning both before and after [the Applicant’s] design and build contract with the housing association dating from February 2006. Nor was the situation one wherein [the Applicant] required [the Respondent] to design the building and such things as the cladding in the way that it was done. To put it in simple terms, the cladding was done in the way that [the Respondent] wanted. Although we have not been able to locate it, there would have been a formal written JCT contract between [the Applicant] and [the Respondent] in relation to [Site T].”