Case Law Updates – June 2022

Nicholas James Care Homes Ltd v Liberty Homes (Kent) Ltd [2022] EWHC 1203 (TCC) (19 May 2022)

This was an application without notice brought by the applicant “Nicholas James Care Homes Limited” (“NJCH”) to continue the interim freezing injunction pending determination of enforcement hearing listed on 15 June 2022. The Respondent was Liberty Homes (Kent) Limited (“LH”).

Background

The parties have known each other since 2002. Between 2002 and 2020, they have worked together on a number of projects, including a development project in Beacon Hill Lodge at Beacon Hill Herne Bay.

The work started in 2018 and between 19 March 2020 to 18 July 2020, the Applicant alleged that it has overpaid the Respondent £1.49 million across a number of projects including the project in Beacon Hill.

The Respondent disputed the alleged overpayments and issued a smash and grab adjudication in respect of application 23 and 24 in the sum of £274,698.04 plus interest. The adjudicator issued his decision in favour of the Respondent and directed the Applicant to pay the claimed sum, together with interest and adjudicator’s fees.

Following the first adjudication, the Applicant issued a true value adjudication to recover a sum of £2,387,005 plus interest. The adjudicator found that a sum of £2,589,737.76 plus interest was payable to the Applicant.

The sum awarded to the Applicant was not paid and the Applicant issued enforcement proceedings. The hearing was listed for 15 June 2022.

The application

On 21 April 2022 the applicant obtained a freezing injunction without notice, namely that until after the return date or further order of the court, Liberty Homes must not remove from England and Wales or in any way dispose of, deal with or diminish the value of any of its assets which are in England and Wales up to the value of £2,903,755.60. This is because the Applicant discovered that as at 31 October 2020, the total stocks and assets of the Respondent was less than then the current liabilities and that the Respondent has removed many of its assets from the company.

In this hearing the Applicant requested the Court to continue the interim freezing injunction, until the determination of the adjudication enforcement application or further order. The Applicant submitted that the Respondent would continue to dispose the assets unless restrained by the Court. The Respondent argued that an order should not be granted for the following reasons:

• The Applicant has delayed in making the application;
• There is no evidence of dissipation of assets;
• And that the extent of the cross-undertaking in damages provided by the Applicant is inadequate.

Judgment

Mrs Justice O’Farrell found that there was sufficient evidence of a real risk of dissipation. Accordingly, a freezing injunction ordered by the court on 21 April 2022 will be continued until after the adjudication enforcement hearing on 15 June 2022.  Her Ladyship has considered the following authorities whilst concluding her judgment:

• Section 37 of the Senior Courts Act 1981
• Broad Idea International Limited v Convoy Collateral Ltd [2021] UKPC 24
• Fundo Soberano de Angola v dos Santos [2018] EWHC 2199 (Comm)
• Lakatamia Shipping Company Ltd v Toshiko Morimoto [2019] EWCA Civ 2203)
• H Baldwin and Sons Ltd v His Excellency Sheikh Saud bin Mohammed bin Ali Al-Thani [2012] EWHC 3156

Specialist Building Products Ltd (t/a Profile 22 Systems) v New Century Doors Ltd [2022] EWHC 1571 (TCC) (20 June 2022)

This case involved two sets of application.

1. Application to amend the Defence and Counterclaim (made by the Defendant); and
2. Application to strike out the Defence and Counterclaim and/or for summary judgment on the claim (made by the Claimant).

Background

Proceedings were issued by the Claimant in April 2019, claiming £21,193.01. The Defendant admitted the claim in its Defence dated June 2019 but caveated the Defence by making it subject to a defence of set off and counterclaim and indemnity. The set off was claimed in the sum of £127,160.

In December 2020, the Defendant amended the Defence and Counterclaim and increased the sum by £700,000, making its total value £827,160.

The draft Defence and Counterclaim had undergone four iterations prior to the hearing of the applications and it has also changed again during the course of the hearing. The Judge directed for a further final version of the amendments to be provided following the hearing and the Claimant was also given the opportunity to provide written comments.

The judgment in this instance concerned whether permission to amend the Defence and Counterclaim should be granted in the form in which it was lodged on 8 June 2022. The amendments were shown in red deletions and underlining in the draft. The amendments requested are also summarised in section 9 of the judgment.

One of the key amendments discussed was in relation to the limitation period of the collateral warranties.

The claimant summitted as below;

• the Defendant’s claim in respect of the collateral warranties is time-barred because the alleged warranties were given in 2011 and were breached on construction of the first fire doors being assembled in 2011 without the benefit of purported testing, which is more than six years before the date of this action.

The Defendant responded as below;

• the warranties were only breached when each set of components was provided in breach of those warranties. Since it is only the provision of components supplied since 2018 which are the subject of complaint, its case is that there is no time bar. This argument may, but need not depend on, the collateral warranties being repeated on the occasion of each individual sale.

Judgment

The Judge found that it was a reasonable argument that the opposed amendments are made outside the applicable limitation period. However, the judge rejected the Claimant’s argument in relation to the strike out applicant that the claim for breach of collateral warranties is “time barred in any way”.

The judge further held that the claim for breach of collateral warranties is a new cause of action. Following careful consideration of the submissions in comparison to various legal authorities, the judge granted permission to amend the Defence and the Counterclaim in respect of the claim for collateral warranties, for misrepresentation and other amendments.

The Claimant’s application to strike out the Defence and Counterclaim was rejected.

Legal Principle

The judge considered the following legal principle;

• CPR rule 17.4(2);
• Mulally & Co v Martlett Homes [2022] EWCA Civ 32
• CPR 3.4(2)(a)
• Standard Life Assurance Ltd v Gleeds and others [2022] EWHC 1310
• Ballinger v Mercer [2014] EWCA Civ 996
• Pearce v East & North Herts NHS Trust [2020] EWHC 1504, QB
• CIP Properties (AIPT) ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345, TCC
• Quah Su Ling v Goldman Sachs International [2015] EWHC 759, Comm
• MWB Business Exchange Centres v Rock Advertising Ltd [2019] AC 119, SC.

Northumbria Healthcare NHS Foundation Trust & Anor v Lendlease Construction (Europe) Ltd & Anor [2022] EWHC 1266 (TCC) (25 May 2022)

The case related to the design and construction of a specialist emergency care hospital in Cramlington, Northumberland. The hospital was made up of a central hub containing the main clinical support facilities and was surrounded by ‘cogs’ containing a conference centre, wards and offices.

The works were certified as practically complete on 31 March 2015. On 20 December 2019 the Claimants issued proceedings against the Defendants, claiming that there were substantial design and construction defects throughout the hospital. The total claimed was approximately £140 million, with £73 million of this in relation to the cost of ‘the decant scheme’ comprising of decanting the hospital into a specially constructed four-storey building during the proposed remedial works, so that the hospital can continue to function and maintain necessary care for critical or emergency patients.

In 2020 the Defendants issued Part 20 claims in which they sought to pass on liability for a number of defects to the third to eleventh Defendants.

This was the fifth CMC in the proceedings, the matters to be considered were:

1. The Claimants’ application for permission to amend their pleadings;
2. The Defendants’ application for permission to amend their pleadings;
3. The Third Defendant’s application for permission to amend its pleadings dated 26 April 2022;
4. Revisions required to the timetable and considering adjusting the trial date;
5. The Sixth Defendant’s application for permission to rely on expert valuation evidence;
6. The Claimants’ application for specific disclosure dated 4 May 2022.

Test for applications to amend pleadings

Under CPR 17.1, a party may amend pleadings only with the consent of the other party or with the permission of the court.

The court has a general discretion to allow an amendment to a statement of case under CPR 17.3, subject to CPR 17.4 which is not applicable in this case.

The key principles to consider in these applications are as follows:

1. In exercising the court’s discretion whether to allow an amendment, the overriding objective is of the greatest importance. The court must deal with the case justly and at proportionate cost which includes saving expense, ensuring the case is dealt with expeditiously and fairly and allocating it no more than a fair share of the court’s limited resources.
2. These applications always involve the court striking a balance between injustice to the applicant if the amendment is refused and injustice to the opposing party and other litigants in general, if permitted.
3. Starting point that the proposed amendment must be arguable, coherent and properly particularised. It will be refused if the amendment has no real prospect of success.
4. An amendment is late if it could have been advanced earlier or involves duplication of steps in the litigation, costs and effort. Lateness is not absolute and is a relative concept.
5. If late, the party must provide a good explanation for the delay.
6. A very late amendment is one made when the trial date is fixed and allowing the amendment would cause the trial date to be lost.

Judgment

1. The Claimants’ application for permission to amend their pleadings

The Defendants consented to the proposed amends subject to clarifications being made as the evidence provided did not contain adequate cross-references. The Claimant clarified this and, as a result, permission was granted, subject to the Claimant paying costs of the amendments.

2. The Defendants’ application for permission to amend their pleadings

An agreement was reached between the parties, aside for:

1. The Claimants objecting to certain amends whereby the Defendants sought to include new allegations and
2. The Claimants submitting that the court should not grant permission for a number of the proposed amends pending the provision of further information by the Defendants and this part of the application should be adjourned for that purpose.

Mrs. Justice O’Farrell permitted the amendment to add in the new allegations, on the basis it was clear and coherent and raises 2 short points which could be addressed by technical experts.

It was not suggested by the Claimants that the amends would jeopardise the trial date and adjourning the application would simply build in further delay and costs. For that reason, permission was granted for the amends.

Permission was given subject to the Defendant paying costs of the amends and the Claimants having permission to serve further amends.

3.   The Third Defendant’s application for permission to amend its pleadings

Following exchanges between the parties, further information was provided and it was confirmed that there are no outstanding objections to the application. Permission was granted subject to costs being paid.

4. Revisions required to the timetable and considering adjusting the trial date

The Claimants and Defendants submitted that it would be sensible to postpone the start of the trial for 3 weeks, this would likely lead to time being saved by the settlement of a number of smaller claims which are the subject of Tomlin orders which have been approved by the court.

The Sixth Defendant submitted that the timetable has become far too compressed for the trial to proceed without serious prejudice and injustice, therefore it was suggested that the court should order a split trial – splitting liability and quantum.

The court rejected the proposal for a split trial, finding it would have a serious prejudicial effect on the Claimants who could be forced to wait up to a year for the quantum trial and other parties would incur increased costs if the trial is split. It was however agreed that the trial would be postponed for 3 weeks.

5. The Sixth Defendant’s application for permission to rely on expert valuation evidence

This was agreed by consent between the parties and therefore was permitted.

6. The Claimants’ application for specific disclosure dated 4 May 2022.

Paragraph 31.3.6 of the White Book states that the test for legal advice privilege is whether the communication or other document is made confidentially for the purpose of legal advice.

The court referred to the test from Starbev GP Ltd v Interbrew Holding BV [2013] EWHC 4038 (Comm):

1. The burden of proof is on the party claiming privilege to establish it;
2. An assertion of privilege and statement of the purpose of communication over which privilege is claimed in a witness statement are not determinative;
3. The party claiming privilege must establish that litigation was reasonably contemplated or anticipated. It is not sufficient to show that there is a mere possibility of litigation

The court was satisfied that the claim to litigation privilege was established in respect of the documents in question. In one of the Claimant’s witness statements, it set out the circumstances in which the documents were produced.

Secondly, the documents were produced after the pre-action protocol letter of claim had been received, when litigation was in contemplation.

Thirdly, the witness was identified as one of the individuals who constituted the instructing client and was responsible for seeking and/or receiving legal advice from the solicitors in relation to the contemplated litigation.

Fourthly, the documents were produced as part of the workstreams identified in the strategy meetings formed for the purpose of conducting the litigation.

Liverpool City Council (“LCC”) v Vital Infrastructure Asset Management (Viam) Ltd (“Vital”) [2022] EWHC 1235 (TCC)

Facts:

The Defendant previously brought a successful adjudication against LCC, in relation to their contract for the maintenance of temporary fencing for highway works. The adjudicator ordered LCC to pay Vital £128,500 and interest and their fees and expenses.

The day before the decision, Vital went into administration and LCC did not pay this sum. LCC made an insolvency application requesting permission to bring Part 8 proceedings against the Defendant on the following basis:

1. The adjudicator did not have jurisdiction to determine the dispute referred as it arose under two contracts;
2. Even if the adjudicator did have jurisdiction, then:

1. The Defendant failed to validly serve notice of the appointment of the adjudicator, so the appointment was invalid and the adjudicator had no jurisdiction (“service issue”) and/or
2. The adjudicator decided a question which had not been referred to it so the decision was a nullity (“nullity issue”).

HHJ Stephen Davies permitted LCC to bring proceedings and observed that an argument for breach of natural justice may properly be advanced as opposed to a nullity argument.

Relevant contract

On 22 May 2019 LCC and Vital entered into a framework agreement in relation to the works. The framework agreement set out that each project was to be the subject of an individual call-off contract, and that these contracts should take the form of the NEC3 engineering and construction contract (“the NEC3 contract”) as supplemented by schedule 9 of the framework agreement.

Clause 2.3 of the framework agreement stated that it should “supplement and complement” the provisions of the call-off contract and identified the order of precedence as between the documents forming each call-off contract. Vital agreed to the terms and conditions of the framework agreement.

It was however unclear which dispute resolution method was to be used in the event of a dispute.

Clauses 47.1 and 47.1.1 of the framework agreement set out that a dispute shall be resolved in accordance with the dispute resolution provisions of the relevant Call-off Contract forming part of the Memorandum of Agreement (including, where applicable, the mediation, adjudication and/or litigation provisions of such agreement).”

Clause 47.3 stated: “where the dispute or difference relates solely to this Framework Agreement and does not involve matters which arise under and/or relate to any Projects then the dispute or difference shall be resolved in accordance with clauses 47 to 48 (inclusive), as applicable”.

Clause 48 referred to mediation, clause 49 referred to consultation, clause 50 referred to adjudication and clause 51 referred to legal proceedings.

Clause 50 stated: “Nothing in this Framework Agreement shall prevent the Parties from referring a dispute to adjudication at any time. Either Party may at any time refer such dispute or difference to adjudication in accordance with the provisions of the Scheme except for the purposes of the Scheme the nominating body shall be that stated in the Framework Particulars”.

Contract issue:

HHJ Stephen Davies interpreted the above clauses to mean that disputes relating to the framework agreement and any individual call-off contract should be resolved in accordance with the dispute resolution provisions of that relevant call-off contract. Alternatively, disputes arising under or in relation to the framework agreement only should be resolved in accordance with the dispute resolution provision of the framework agreement. The framework agreement had been incorporated into the call-off contract and the remedy sought fell under the call-off contract.

On this basis, the adjudication provisions of clause 50 and the notice provisions of clause 53 were not applicable to this case.

Adjudication notice issue

It was found that the Notice of Adjudication only needed to be sent in accordance with the terms of the call-off contract, which required notice to LCC at Cunard Building. This was complied with, and the fact it was also addressed to the Head of Procurement at the Commercial Procurement Unit was immaterial.

Nullity issue

The particular issue here was that the adjudicator had failed to interpret individual declarations sought in the Notice of Adjudication in relation to the framework agreement and instead valued the maintenance of the temporary fencing with reference to the bill of quantities of the call-off contract.

It was found that it was irrelevant whether the adjudicator was right or wrong in his decision, when concerning enforcement, and the only relevant consideration was if there was a lack of jurisdiction or procedural unfairness. Decisions made by the adjudicator were within his jurisdiction.

However, the adjudicator did not provide LCC fair notice of his considerations so they could make submissions prior to his decision being issued and, on this basis, there was a fundamental departure from the obligation to follow a fair procedure.

Please note, these updates are for educational purposes only and should not be relied on as legal advice.  Barton Legal do not make any representations as to the legal validity of them and any claims that this is legal advice will be unsubstantiated.