Charterhouse School v Hannaford Upright [2007] EWHC 2718 (TCC)

[2007] EWHC 2718 (TCC)Case No HT-06-345
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
St. Dunstan’s House
Venue 133-137 Fetter LaneDate Tuesday, 13 November 2007
London, EC4A 1HD
Before
MR. JUSTICE AKENHEAD
Between
THE GOVERNING BODY OFClaimantCHARTERHOUSE SCHOOLClaimantHANNAFORD UPRIGHTDefendant
Digital Transcription of Marten Walsh Cherer Ltd.,6 th Floor, 12-14 New Fetter Lane, London EC4A 1AG.Telephone No: 020 7936 6000 Fax No: 020 7427 0093 DX: 410 LDEEmail: info@martenwalshcherer.com Website: www.martenwalshcherer.com
MR PETER FRASER (instructed by Messrs Farrer & Co, London WC2)appeared for Claimant.MISS JOANNA SMITH (instructed by Messrs Squire & Co, London EC1)appeared for Defendant
Judgment
[1]This application is made by the Defendant for leave to amend its Defence and adduce quantity surveying expert evidence. The claim relates to the provision of new heating and hot water services in some seven boarding houses at Charterhouse School in Surrey. The Governing Body of the School (“Charterhouse”), the Claimant, which is a Charity, retained the Defendant, Hannaford Upright Ltd (“Hannaford”), a firm of building services consulting Engineers, to provide design and inspection services in respect of those works which were part of a refurbishment of the seven boarding houses in question.[2]There is an acceptance that the contract between the parties came into being on or about 6 March 2001. The works were to be done in two phases, which came to be known as the Year 1 and Year 2 Works. It seems to be the case that the Year 1 Works were completed and commissioned in or about the summer of 2001 and the Year 2 Works in or about the summer of 2002, although it may be the case that the Year 2 Works’ commissioning went on into the autumn. There were some recommissioning works done in 2003.[3]Charterhouse alleges that the systems did not work as they should have done and it embarked upon extensive remedial work, starting in 2006. Other works were planned for 2007. I do not know whether those have been done or completed. Charterhouse alleges breach of contract on the part of Hannaford in a number of different respects. The total claim is for over £1.6 million.[4]After a lengthy pre-action protocol process, proceedings were issued in November 2006, the Particulars of Claim being served on 16 November 2006. The Defence was served on 20 December 2006 and the Reply on 15 January 2007. At the first Case Management Conference before His Honour Judge Thornton QC, on 19 January 2007, the learned Judge adjourned the CMC to 9 March 2007. An application by Hannaford for leave to rely upon expert quantity surveying evidence was turned down by the learned Judge because he did not see the need for quantity surveying evidence. At the adjourned CMC, on 9 March 2007, a trial date was fixed effectively for 14 January 2008 for eight days. Directions were given, amongst others, for the exchange of witness statements by 14 September 2007; for the parties’ mechanical engineering experts, Mr Child and Mr Welch, to meet between March and June 2007; for their expert reports to be exchanged by 26 October 2007; and for experts to produce an agreed statement by 16 November 2007.[5]At this adjourned CMC, Hannaford, by its Counsel, Miss Smith, applied for leave to adduce the expert evidence of a quantity surveyor. Miss Smith produced a skeleton argument in which she sought to justify this. In particular, she sought to explain that a QS expert was needed to review alleged betterment in the remedial works and review the true value of the remedial works.[6]There is some dispute as to what happened at that CMC. It is accepted that the learned Judge did not accede to the application. Miss Smith (who was present) and her solicitor, Mr Lewis (who was not), say that the Judge did not rule out the possibility of Hannaford making a further application, saying that it was not necessary for the Court to make an order at that stage. Mr Lewis, at Paragraph 14 of his witness statement in this application, says this:
“The request for an order to obtain quantity surveying evidence at the Case Management Conference on 8 March 2007” – I think it is 9 March, but anyway that does not matter – “was rejected by the Court at that time. I understand from my subsequent conversations with Counsel that His Honour Judge Thornton QC confirmed that it was not necessary for the Court to make an order at that stage but said that it was open to the parties to obtain expert evidence from a quantity surveyor if either party felt it was necessary to do so and that any reasonable decision to rely on such evidence could be reflected in an appropriate Court order subsequently. The Court certainly did not rule out the possibility of an application for permission to rely on quantity surveying evidence being made at a later stage in the proceedings.”
[7]Mr Twidale, who, with his side’s Counsel, Mr Fraser, was also at the meeting, says that something rather different happened. He says, at Paragraph 13 of his witness statement: “A further Case Management Conference took place before His Honour Judge Anthony Thornton QC on 9 March 2007. Again, as Mr Lewis records in his witness statement on behalf of the Defendant, the Defendant applied (this being its second application) for permission to adduce the expert evidence of a quantity surveyor. Again, that application was refused as is recorded in the directions made by the Judge,” and he refers to various pages. He continues: ‘It is quite wrong to portray the learned Judge on that occasion as encouraging the Defendant to make a further application as Mr Lewis appears to suggest in Paragraph 14 of his witness statement. Mr Lewis has not been at either of the Case Management Conferences, but I have. The learned Judge again refused the application and made certain pertinent points to the Defendant’s Counsel as to the correct approach to quantification and loss given the sizeable sum that had already been spent by the school in remedial works. The point made by him was not whether remedial works could have been done for less but, rather, were the works that were performed reasonable and were they caused as a result of actionable fault on the part of the Defendant? He did say that there was nothing to stop a party engaging a quantity surveyor if it wanted to, to provide assistance and that no permission was needed from the Court for a party to do so, but that was different from calling an expert as a witness. Mr Lewis seeks to portray this new application by the Defendant as, effectively, always being pending from March onwards. Quite apart from the obvious absurdity of one party stating that it was preparing for trial using an expert for whom no permission had been granted (and in fact twice refused by the Court) in actual fact since March of this year evidence from quantity surveying experts has effectively been a “dead” issue so far as the school has been concerned.’ ‘It is quite wrong to portray the learned Judge on that occasion as encouraging the Defendant to make a further application as Mr Lewis appears to suggest in Paragraph 14 of his witness statement. Mr Lewis has not been at either of the Case Management Conferences, but I have. The learned Judge again refused the application and made certain pertinent points to the Defendant’s Counsel as to the correct approach to quantification and loss given the sizeable sum that had already been spent by the school in remedial works. The point made by him was not whether remedial works could have been done for less but, rather, were the works that were performed reasonable and were they caused as a result of actionable fault on the part of the Defendant? He did say that there was nothing to stop a party engaging a quantity surveyor if it wanted to, to provide assistance and that no permission was needed from the Court for a party to do so, but that was different from calling an expert as a witness. Mr Lewis seeks to portray this new application by the Defendant as, effectively, always being pending from March onwards. Quite apart from the obvious absurdity of one party stating that it was preparing for trial using an expert for whom no permission had been granted (and in fact twice refused by the Court) in actual fact since March of this year evidence from quantity surveying experts has effectively been a “dead” issue so far as the school has been concerned.’[8]It is difficult to resolve this issue. However, it is clear that the applications on 19 January and 9 March were refused and there was no attempt to appeal those decisions. It is inherently unlikely that the learned Judge would have encouraged a further application to adduce further expert evidence and certainly to encourage it to be made at a short time before the trial date had been fixed.[9]Witness statements were served on about 12 October, which was later than ordered. This was because, so it was said in solicitors’ correspondence, Hannaford was not ready to serve their statements on time due to its Counsel not being available to assist in advising on them. Expert reports from the mechanical engineering experts were consequently agreed to be served on or by 9 November 2007. As far as I understand, the witness statements and the mechanical engineering experts’ reports were exchanged on or by those revised dates.[10]Hannaford’s current applications were issued without prior notice on 7 November 2007 and, in His Honour Judge Thornton QC’s absence, were allocated to me for hearing today, 13 November 2007. It is clear, and it is not challenged, that Hannaford’s current applications were not presaged in correspondence or orally by Hannaford’s solicitors before the issue of those applications. The Applications[11]I will address Hannaford’s two applications, namely, for leave to adduce the expert evidence of a quantity surveyor expert, Mr Christopher Ennis, and related directions in connection thereto and for leave to amend. I will address them in that order. The Quantity Surveyor Expert[12]Although the draft order proposed by Hannafords seeks unconditional and unqualified permission to rely upon expert quantity surveying evidence, Mr Lewis, at least on the face of his statement, seeks a limited permission. At Paragraph 10 of his witness statement, he says this:
“The Defendant requires permission to adduce expert quantity surveying evidence to support its case as to the costs of the remedial work that the Defendant now acknowledges would have been necessary in order to remedy the inability of the few areas within each Boarding House to meet the required internal design temperature. In his report, Mr Welch [Hannaford’s engineering expert] will identify the specific areas that require attention together with the works that he believes would have remedied the problem. The Defendant needs the evidence of a quantity surveyor to put a price on those remedial works.”
[13]Mr Lewis then goes on in his witness statement, at Paragraphs 11 to 16. For instance, at Paragraphs 11 to 14, he deals historically with what happened at the CMCs in January and March 2007. He explains historically why they had wanted expert quantity surveying evidence at that time.[14]Because I had read Mr Lewis’ witness statement as relating only or primarily to the production of quantity surveying evidence relating to the costing of remedial works in respect of defects for which liability is now admitted, I asked Miss Smith, Counsel for Hannaford, whether her client’s application to adduce quantity surveying evidence was unlimited. She confirmed that it was. I proceed with this application on the basis that it is for unlimited and unconditional quantity surveying expert evidence.[15]Mr Lewis refers to the fact that Mr Christopher Ennis is Hannaford’s quantity surveying expert. I was told by Miss Smith that he had been retained since about June 2007.[16]It seems to me that, in any event, Hannaford should be given limited permission to rely upon expert quantity surveying evidence in relation to the valuation of the remedial works attributable to the admissions of liability pleaded in the draft Amended Defence (to which no objection has been made on the application for leave to amend). The views formed by Hannaford’s engineering expert, Mr Welch, are that there were some culpable failings on the part of his client. The work required to put right those defects is said to fall far short of what has been carried out so far by Charterhouse. It is fair that, if the trial Judge forms the view that there is only such limited liability, there is some expert evidence available to quantify that liability. There is only minor prejudice to Charterhouse because there is just about time for responsive quantity surveying expert evidence to be obtained on that very limited exercise before the trial date. It may even be the case that Charterhouse will not find it necessary to adduce such expert evidence.[17]I can seek to overcome, or limit any, prejudice by imposing strict directions on Hannaford on what is in any event a late application. I propose the following directions (although I will hear Counsel, if need be, on the precise dates):(1) Permission to rely upon expert quantity surveying evidence is granted only upon the following terms: (a) It is limited to valuation of the remedial works attributable to the admissions of liability pleaded in the Amended Defence. (b) The Defendant serves, by 18 November 2007, all its expert evidence in respect of such valuation.(2) The Claimant is permitted to serve the report of any quantity surveying expert in respect of such valuation on or by 21 December 2007.(3) The quantity surveying experts are to meet without prejudice and file statements in accordance with Rule 35.12(3) on such valuation by 10 January 2008.(4) The Claimant has liberty to apply for a variation of these directions, including an adjournment of any issues relating to this valuation exercise, if it proves impossible or impracticable to comply with them.[18]I now move on to the remainder of Hannaford’s application for permission generally to rely upon expert quantity surveying evidence. As appears below, different considerations apply.[19]In Paragraph 70 of its original Defence, Hannaford pleaded as follows:
“Further and in any event, the provision of stand-by pumps, new boiler flues, new control valves and modifications to the control system are all items of betterment over Hannaford Upright’s original design and represent a revision and/or fundamental change in the Governing Body’s [Charterhouse’s] requirements. In the circumstances, the cost of the same is not properly recoverable from Hannaford Upright.”
There were general denials in Paragraphs 71 and 72 relating to the loss and damage. No Particulars have ever been provided by Hannaford to support the plea in Paragraph 70 or to plead any other positive case with regard to loss and damage.[20]In the Reply, at Paragraph 41, Charterhouse pleaded, in relation to Paragraph 70:
“… it is admitted that the provision of stand-by pumps and of new boiler flues are items of betterment over Hannaford Upright’s original design and the Governing Body will give credit for those sums once they have been assessed. The Governing Body avers that these are modest sums totalling no more than approximately £35,000. Save as aforesaid, Paragraph 70 is denied.”
The Reply was served on 15 January 2007.[21]Mr Welch’s expert Report was in the bundle before the Court. Appendix 30 to his Report states as follows:
“During the February 2007 data-acquisition exercise conducted at the Daviesites House by myself and Mr Child, I was shown the remedial works completed at Lockites Dormitory. The viewing was brief, but various items were pointed out or noted by myself as constituting an enhancement to the original heating scheme design completed by Hannaford Upright.”
He then refers to some 10 areas or types of what he says are “enhancements”, only some of which are reflected in Paragraph 70 of the Defence.[22]Miss Smith for Hannaford accepted that it was likely that her engineering experts, possibly following further meetings with Charterhouse’s engineering expert, would have to formulate a finite list of those matters which are said to involve betterment and that thereafter the quantity surveying experts would have to price those items. Indeed, it would be the case that, if there were any other items of quantum which were challenged on any other basis, a similar process would have to take place.[23]Miss Smith conceded at least that there was a realistic possibility that the trial as a whole might have to be adjourned or that all, or the bulk of, any quantum issues might have to be adjourned.[24]I am against Hannaford’s application to adduce such further expert evidence. My reasons are as follows:(a) The application is made much too late. It is clear from the applications made before His Honour Judge Thornton QC and from the pleading that Hannaford has been keen to advance arguments relating to betterment. It is also clear that Mr Welch has advised Hannaford, or been in a position to advise it, since at the latest February 2007 that there were a number of specific items of betterment (referred to in his Appendix 30). To wait until six working weeks before the trial to make this application is not acceptable. Little or no excuse or explanation has been given about the reasons for the delay.(b) It is clear that even now Hannaford is not in a position to produce a quantity surveying expert’s report to support its case on quantum matters (other than those for which I am prepared to give limited leave, for which see above). It will be some weeks (whether before or after Christmas 2007) before Hannaford’s quantity surveying expert is ready to produce a comprehensive and comprehensible report.(c) There is thus at the very least a very significant risk that the trial date in January 2008 will be jeopardised. Indeed, it is an overwhelming probability that the trial date will have to be vacated or at the very least effectively the whole issue of quantum adjourned to a second trial.(d) It is highly undesirable that the trial is adjourned in whole or in part. The trial date has been fixed for many months and the parties, and in particular Charterhouse, has doubtless made its dispositions accordingly. It is a charity, and the extended period of financial uncertainty is an unfair imposition for them to have to bear.(e) There is also the factor of the availability of a suitable Judge to hear any adjourned case. I do know that the TCC High Court Judges are very heavily booked (including some double bookings) throughout 2008. Other TCC Judges are also heavily booked in 2008. Although I have not been in a position to check His Honour Judge Thornton QC’s list in detail, I do know that he has a number of reserved bookings for matters next year. There is thus a very real risk that this case could not be brought on for a significant period of time in 2008. That is not a satisfactory state of affairs.(f) I bear in mind also that Hannaford have already, in January and March 2007, made two unsuccessful applications on exactly the same basis. Both applications have been unsuccessful and, for reasons best known to itself, Hannaford did not even seek permission to appeal against those refusals. It is not obvious that factors have materially changed since those applications were made. I consider that there is very real prejudice likely to be suffered by Charterhouse if I was to accede to this application. Save to the extent that I have allowed it (see above), the application is dismissed. Hannaford’s Application to Amend[25]Although it is possible to classify them otherwise, the amendments for which Hannaford seek permission to amend, fall into four categories:(a) Those which are not opposed by Charterhouse. Permission to make these amendments will be allowed, subject to the usual terms as to costs and consequential amendments being made to the Reply, if so advised.(b) Amendments relating to the true construction of the Charterhouse Report as to the 30 year requirement.(c) Amendments relating to the alleged requirement for compliance with the Education (School Premises) Regulations 1999 (“the 1999 Regulations”); and(d) Amendments relating to the commissioning and the recommissioning works. I will deal with the three disputed categories in that order. Amendments Relating to the 30 Year Requirement[26]These are set out at Paragraphs 15(iv) and 15(viii) of the draft Amended Defence. Essentially, Charterhouse had pleaded in its Particulars of Claim that the “Charterhouse Report of Extent of Works” of 31 January 2001 was incorporated into the contract between Charterhouse and Hannaford. One of the requirements said to apply was that “the design undertaken by Hannaford … should be such that the Year 1 and 2 Works would be suitable and sufficient for the buildings to enjoy a further 30 years’ life after the Works had been performed”. Paragraph 15(iv) of the original Defence made this admission:
“It is further admitted that the design undertaken by Hannaford Upright for the Year 1 Works was to be suitable and sufficient for the buildings to enjoy a further 30 years’ life after the Works had been performed.”
[27]By way of amendment, Hannaford wished to withdraw that admission and deny the 30 years’ life requirement.[28]Miss Smith, who settled the original Pleading, frankly told me that, in her most recent review of the factual matrix and of the wording used, the admission which she had pleaded in relation to the 30 year requirement was not justified.[29]Mr Fraser broadly objected to these draft amendments, perhaps with somewhat less enthusiasm than in relation to the other two classes of amendment.[30]I am satisfied that leave to amend Paragraphs 15(iv) and 15(viii) should be given. It seems to me that essentially the amendments sought relate to the construction of the contract or contracts between the parties and will not give rise to any prejudice because it does not impact upon any factual evidence. Amendments Relating to the 1999 Regulations[31]These are pleaded, so far as I can ascertain, at Paragraphs 13A, 14, 15(ix), 18, 27, 34(i), 34(ii), 38(vii), 43 and 67 of the Amended Defence. The key amendment is at Paragraph 13A:
“At the first Project Meeting, held on Thursday 8 March 2001, and attended by (amongst others), Mr Grant, Mr Szymanski and Mr Kingston on behalf of the Governing Body, Mr Grant was issued with a copy of … the 1999 Regulations. At some point, whether prior to, during, or shortly after the meeting, GTMS/GTCM instructed Hannaford Upright to comply with the 1999 Regulations. On a date that Mr Grant cannot recall, he confirmed that Hannaford Upright would comply.”
[32]The relevance of this plea relates to the design temperatures required to be achieved within all the different parts of the Boarding Houses. In effect, Charterhouse pleads that Hannaford’s design should have achieved a temperature of 21°C throughout the houses, that is not only in the study bedrooms and other rooms but also in the circulation areas such as corridors. If the 1999 Regulations applied, in effect, by way of contractual variation or otherwise as a contractual term, it would, or at least might, be open to Hannaford to argue that at least with regard to circulation areas the obligation was only to achieve a lesser temperature in such areas. Hannaford already plead (in unamended parts of the Defence) that the contractual obligation was only to provide for a design temperature of 21°C in “rooms”; and that that contractual appellation did not apply to any parts of the buildings that cannot be described as “rooms”. Thus the proposed plea in relation to the 1999 Regulations is simply an additional or alternative argument.[33]A witness statement has been exchanged from Mr Grant of Hannaford. He is the managing director of Hannaford. Paragraph 37 of his statement says, materially, as follows:
‘I have been shown the minutes of a meeting dated 8 March 2001 at which I was present and from which I can see that a copy of the … 1999 Regulations was provided to me “For information”. I have a very clear recollection that Gardiner & Theobald had at some point, whether before or after this meeting, made it very clear to us that we had to comply with the requirements of those Regulations. I cannot recall whether this was done over the telephone or by way of email, but I had no doubt that Hannaford was asked to confirm that it would be complying with the Regulations in carrying out its design for the heating system. I am sure that I confirmed compliance in circumstances, whether requirements of the Regulations for internal temperatures were significantly lower than the room temperature requirement that had been specified to us by the school.’
Gardiner & Theobald were representing Charterhouse for the provision of management services in connection with the refurbishment work.[34]Charterhouse objects to this amendment on the grounds that it is made too late and that it will not be able effectively to counter the new factual allegations set out in Paragraph 13A. Mr Kingston, who attended the meeting, is, unfortunately, dead, having died in 2005. However, Mr Szymanski has now left Gardiner & Theobald for whom he worked at the time. I was told that, since Mr Twidale gave this limited evidence in Paragraph 18 of his statement on 9 November 2007, further steps had been made to seek to locate Mr Szymanski with little further result. He has not been tracked down, and all that is currently known is that he set up in practice somewhere on his own account. Mr Fraser for Charterhouse argues that, by reason of the lateness of the application, which could have been made many months ago, Charterhouse suffered prejudice, or may well suffer prejudice, because there is a much greater risk that it will be unable, in the limited time available, to locate Mr Szymanski and, even if they do, to obtain a well prepared and well researched response. Without the assistance of Mr Szymanski, it will be difficult, or more difficult, to counter what Mr Grant now says.[35]I am minded not to allow this series of amendments. My reasons are as follows:(a) There is no excuse proffered or obviously available as to why this point was not pleaded many months ago.(b) It is made much too late, with only six weeks left to go to trial.(c) The lateness of the application brings about a significantly enhanced risk that Charterhouse will be unable to track down the one witness who might be able to challenge, in whole or in part, what Mr Grant says. If this pleading had been made in the original Defence or shortly thereafter, that would have left Charterhouse with a substantial period of time to seek to track Mr Szymanski down. Instead, it is left in the position of having to track him down, so far wholly unsuccessfully, in a period of time which, impendingly, includes Christmas and the New Year, when it is less likely that he will be tracked down. To allow this amendment at this stage would give Hannaford an unfair advantage.(d) It was not unreasonable on the part of Charterhouse not to have sought to locate Mr Szymanski before any application to amend was made. There appear to be little or no issues arising out of the contracts between the parties which were not determinable on the face of the contractual documentation.(e) It will still be open to Hannaford on its existing pleading to argue that different temperature considerations applied (contractually) to areas other than “rooms”, although I make no comment about the efficacy or validity of those existing pleas.[36]Therefore, permission to amend the above mentioned Paragraphs will be refused. Amendments Relating to Commissioning and Recommissioning[37]These are pleaded at Paragraphs, 24, 25 and 26 of the draft Amended Defence. They relate substantially to the withdrawal of admissions which have previously been made in the Defence.[38]Relevant parts of the Particulars of Claim are in Paragraphs 18 and 19:
“(18) The replacement of the heating and hot water services at the Boarding Houses was completed in all material respects in accordance with the specifications and drawings produced by Hannaford Upright. The Year 1 Works were completed and commissioned during the School’s summer holidays in 2001 by Aircool Engineering Ltd. The Year 2 Works were completed and commissioned during the School’s summer holidays in 2002 by Dudley Bower Services Ltd (in respect of Lockites and Weekites), Aircool Engineering Ltd (in respect of Bodeites and Hodgsonites) and Kershall Mechanical Services Ltd (in respect of Pageites and Robinites). (19) Commissioning was carried out by Russell Commissioning and Validation Services Ltd on completion of the Works. Recommissioning of the system was carried out by Barfield (Commissioning Services) Ltd in mid-2003. Yet further commissioning and also flushing of the system was carried out by Paul Banyard & Associates and Seaton Associates in late 2003. The Governing Body avers that Year 1 and Year 2 Works were commissioned and recommissioned as adequately as possible within the parameters of the system as designed and installed. Recommissioning was performed in an attempt by the Governing Body to improve the performance of the systems.”
It can be seen that some seven different firms or companies were involved in the commissioning and the recommissioning.[39]In Paragraph 24 of the original Defence, Paragraph 18 was denied. In Paragraph 25, Hannaford averred that it was not involved in the commissioning of either the Year 1 or Year 2 Works. It was positively averred, however, that Hannaford “witnessed and signed off the commissioning in respect of the Year 1 Works”. In Paragraph 26, the following was pleaded: “Save that:(i) it is averred that no re-commissioning was either necessary, or undertaken in respect of the Year 1 Works; and(ii) it is denied that commissioning by Russell … was carried out on completion of the Works, such commissioning having taken place in or around November 2002 at a time when the Boarding Houses were occupied Paragraph 19 is admitted. For the avoidance of doubt, it is denied (if it is so alleged) that the re-commissioning and the flushing of the system referred to in Paragraph 19 was carried out with a view to resolving identified problems with the design criteria.” (i) it is averred that no re-commissioning was either necessary, or undertaken in respect of the Year 1 Works; and (ii) it is denied that commissioning by Russell … was carried out on completion of the Works, such commissioning having taken place in or around November 2002 at a time when the Boarding Houses were occupied[40]This Defence contained a Statement of Truth signed by Mr Grant himself (on 20 December 2006).[41]In the draft Amended Defence, Hannaford wish to add a positive denial “that the commissioning works carried out in respect of the Year 2 Works were carried out adequately or properly”. No particularisation is given as to the extent to which such works were inadequately or improperly carried out. In Paragraph 25, Hannaford wish to withdraw the admission relating to the signing off of the Year 1 Works commissioning: it wishes positively to plead that “it did not sign off the commissioning”.[42]Paragraph 26 wishes to add, as Sub-paragraph (iii), the following:
“It is denied that the Year 2 Works were commissioned as adequately as possible within the parameters of the system as designed and installed and further denied that the Year 2 Works were re-commissioned as adequately as possible within the parameters of the system as designed and installed.”
Thus the admission of Paragraph 19 is to be further qualified. No particularisation is given as to any respects in which the commissioning of the Year 2 Works or the recommissioning was inadequate. A further plea is added at the end of Paragraph 26:
“It is further denied that such re-commissioning was carried out in accordance with the recommendations provided by Mr Grant of Hannaford Upright in July 2003. However, it is noted that in its report in relation to Lockites dated 7 July 2003, Barfield confirmed that: There seems to be no reason why the water cannot be distributed to allow all radiators to reach temperature …”
. Again, there is no particularisation of any respects in which the recommissioning was not carried out in accordance with Mr Grant’s recommendations.[43]Little further particularisation is given either in the witness statements served by Hannaford. Mr Grant was not directly involved in the project in any “hands-on” way, at least possibly until mid-2003. There is little further information provided about the respects in which commissioning or recommissioning was carried out inadequately, although there are some very general assertions made by Mr Grant, for instance such as appears in Paragraph 66 relating to Mr Grant’s May 2003 Report:
“In the circumstances, I said that it remained our view that any reported performance problems with the heating circuit were likely to arise from inadequate commissioning procedures.”
Such information is more historical than by way of particularisation of what inadequacies there were in commissioning procedures.[44]Mr Welch in his expert Report provides a little more, but still on analysis little, by way of explanation. For instance, in Paragraph 4.2 of his “Executive Summary”, he says:
‘• From the numerous and varied items of correspondence circulating after works completion and the witness statements of House Masters and Matrons, it appears that various of the heating systems were not or not adequately commissioned or handed over once installed. • From Clause 4 of the “Site Refurbishment Meeting” dated 13 Nov 2002, the School confirmed their view “that no proper handover had been achieved”. I take this to confirm that (as well as other issues of inadequate balancing; cleansing; and commissioning) no adequate operational “teach in” had been given to the School’s Maintenance and Estate staff by GTMS. • I am of the opinion that if a heating system as designed had been installed; commissioned; handed over; operated; and maintained adequately, then the remedial works required to comply with the School’s brief would be minor in nature.’
[45]There is nothing else in the body of his Report other than Paragraphs 8.6 and 8.9:
“8.6 I note from documents scheduled at Appendix 22 that the individual heating systems were not adequately balanced, commissioned or handed over at practical completion … 8.9 In conclusion, I consider that the performance of the heating systems designed by Hannaford Upright was critically compromised by the lack of proper maintenance …; lack of adequate commissioning and water balances …”
[46]Appendix 22, which was only handed to me at the hearing, contains a (relatively) few documents, which included several commissioning-type reports, meeting minutes, memos and email, comprising some 13 documents. I have not been in a position to analyse those documents. However, there is no hint or suggestion in the main body of Mr Welch’s Report as to precisely what inadequacies in commissioning are said to be noted in Appendix 22 and how they impacted or caused any problems or deficiencies in the heating systems.[47]On any application for leave to amend, the Court must carry out a balancing act. On the one hand, the Court should recognise the desirability of allowing a party, Claimant or Defendant, to plead within reason any factually or legally reasonably arguable case or Defence; whilst on the other hand, the Court must have regard, given the substance, content or timing of the draft amendment, to the prejudice that may be caused to the party opposing any application occasioned by the amendment. I was referred, for instance, to the decision of Mr Justice Patten in the Chancery Division in Professor Brian Clarke vMarlborough Fine Art (London) Ltd & Anr of 15 May 2001, in particular, at Paragraphs 17 to 20. For instance, at Paragraph 17, the judgment states:
“CPR Part 17 also requires me to apply the overriding objective (CPR Part 1) by considering whether the proposed amendments will enable the Court to deal justly with the claim in a way that is proportionate to the importance and complexity of the case and to the financial position of each party.”
The learned Judge then goes on to deal with the extent to which one should consider whether the proposed amendment has realistic prospects of success. It is unnecessary for me to consider that aspect of the matter.[48]I am also reminded by Mr Fraser of the approach to be adopted by the Court in dealing with applications to amend which involve the withdrawal of admissions. CPR Part 14.1(5) states:
“The Court may allow a party to amend or withdraw an admission.”
There is, therefore, a discretion upon the Court in considering whether to allow the withdrawal of admissions. In Sowerby v Charlton [2005] EWHC (Civ) 1610, the Court of Appeal approved a dictum of Mr Justice Sumner in Braybrook v Basildon Thurrock University NHS Trust[2004] EWHC 3352 (7 October 2004) in which that learned Judge said: “45. From these cases and the CPR I draw the following principles: 1. In exercising its discretion the Court will consider all the circumstances of the case and seek to give effect to the overriding objective. 2. Amongst the matters to be considered will be: (a) the reasons and justification for the application which must be made in good faith; (b) the balance of prejudice to the parties; (c) whether any party has been the author of any prejudice they may suffer; (d) the prospects of success of any issue arising from the withdrawal of an admission; (e) the public interest, in avoiding where possible satellite litigation, disproportionate use of Court resources and the impact of any strategic manoeuvring. 3. The nearer any application is to a final hearing, the less change of success it will have, even if the party making the application can establish clear prejudice. This may be decisive if the application is shortly before the hearing.” (a) the reasons and justification for the application which must be made in good faith; (b) the balance of prejudice to the parties; (c) whether any party has been the author of any prejudice they may suffer; (d) the prospects of success of any issue arising from the withdrawal of an admission; (e) the public interest, in avoiding where possible satellite litigation, disproportionate use of Court resources and the impact of any strategic manoeuvring.[49]Applying those principles (both relating to amendments and the withdrawal of admissions), I am satisfied that it would be wholly wrong to permit Hannaford to amend Paragraphs 24, 25 and 26. My reasons are as follows:(a) The application is made far too late. There is no, and certainly no adequate, explanation as to why this application is being made only six working weeks away from the trial.(b) There is no adequate explanation why Mr Grant, having signed the Statement of Truth, in December 2006, now wishes to depart from the admissions previously made. Mr Grant has obviously been with Hannaford throughout and Hannaford’s engineering expert, Mr Welch, has been involved also for a considerable period of time.(c) If the application to amend was to be allowed, it would be inevitably the case that Charterhouse would have to consider calling representatives of up to seven companies or firms which were involved in the commissioning and recommissioning. The prospects of both finding the relative witnesses within these organisations and obtaining comprehensible witness statements from them in time before the January trial date is very low indeed. Thus there is a very real risk that the trial date would be jeopardised. For reasons given above, there is prejudice to Charterhouse if this trial date is adjourned.(d) The lack of particularity of the amendments makes it impossible, or at the least very difficult, to ascertain what impact, if any, the suggested inadequacy in the commissioning or recommissioning had or would have had on the heating systems.(e) Miss Smith says that the plea about inadequacy of the commissioning is simply a general one upon the basis that inadequate commissioning or recommissioning may have impacted on the deficiencies or poor performance of the heating systems. I understand by that she is saying that it will be impossible to particularise either the inadequacies or their impact. If that is the case, there seems little point in seeking leave to amend at all.(f) With regard to the “signing off” point in Paragraph 25, signing off in a construction or engineering context does not necessarily mean that a piece of paper is signed by the relevant person. Signing off implies, usually, that there has been some approval by the person signing off. Miss Smith told me that in any event no complaints were being made by her clients in relation to the Year 1 commissioning. If that is so, the plea relating to signing off is, on that basis, immaterial, or at the very least less material one way or the other.[50]It will follow that those parts of Paragraphs 24, 25 and 26 of the draft Amended Defence to which objection is taken – Paragraph 24, second sentence; Paragraph 25, withdrawal of admission about signing off the Year 1 Works commissioning; and Paragraph 26 (all amendments) – are refused. General[51]One aspect of late applications to amend is that the lateness leaves little or no time before the trial for the Court of Appeal to dispose of any appeal. If permission to appeal is refused by the first instance judge, it may take up to two months for the single judge to grant or refuse permission to appeal. If permission is refused, a further one to two months may go by before a duly constituted Court grants permission. Following the grant of permission (if that happens) given that cases such as this do not raise issues of personal liberty, life or death, it is not unlikely that the Court of Appeal will be unable to dispose of an appeal such as this within less than three to four months thereafter. It follows that the lateness of an application, particularly to amend or adduce new evidence, can seriously disrupt the trial or frustrate or undermine the trial process if at a later stage the Court of Appeal decides that in some respects the First Instance Judge was wrong.[52]The orders which I make should be consequent upon this judgment.