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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Act Construction Ltd v E Clarke & Son [2002] EWCA Civ 1341 (16 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1341.html Cite as: [2002] EWCA Civ 1341

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
(His Honour Judge Thornton QC)

		The Royal Courts of Justice Strand London WC2 Tuesday 16th July, 2002

1. LORD JUSTICE WARD: As I pointed out at the conclusion of my judgment, these parties find it difficult to agree about anything. I believe there may be an exception to the rule, in that they are agreed that an arithmetical calculation is necessary to adjust the mark-up on all the relevant invoices from the 8% or nothing allowed by the judge to 15%. If counsel are unable to agree the resulting calculation, then the matter must be restored to me by them notifying me by the close of business on Friday. I will then direct a time when they can appear before me as a single Lord Justice to deal with that dispute.
2. As a result of the appeal and the finding that there was a contract, two consequences flow. The first is that this was a contract not to complete the works, and it is accepted that the old claim for the damages for failing to complete the building of the coach station is not being pursued. There was, however, a claim for defective workmanship. We are unable to resolve exactly how the judge dealt with that. Mr Munro submits -- and, as I hope the judgment made clear, I see the force of the submission -- that if there was a contract of any kind, as opposed merely to a restitutionary claim, then there would be implied terms for good workmanship, for the breach of which there would be an action.
3. Mr Noble submits on the other hand, with equal force, that the judge in fact dealt with each and every defect which the experts found to be present and that he properly disposed of that by awarding a proper sum in respect of that defective work.
4. Those matters were on the periphery of the appeal. We do not have the information available for us to resolve who is correct in that regard. So with a high measure of reluctance, this unhappy litigation will have to be remitted to His Honour Judge Thornton QC to determine the extent, if at all, to which the claim for defective workmanship is still alive and kicking. We send it back to the judge with that reluctance and with every encouragement to him to take a condign view of the matter when it comes back. So that if he is satisfied that he has been wrongly troubled by having to look at this stale litigation again, he will have the widest powers under Part 44 to deal with the costs of the referral back to him. We invite him to consider whether he should exercise the power to order indemnity costs in respect of that rehearing, if he finds it appropriate. We certainly encourage him, if he considered that we could have dealt with the matter on the basis of Mr Munro's submission today and killed this litigation today, to say that the costs should attract rates of interest above the normal rates of interest in akin to the powers that the court possesses under Order 36.
5. This is a lamentable bit of litigation and it is time that it came to a conclusion. If the parties are not able to agree or mediate their differences and are going to bother the court yet again with this problem, then I hope the full armoury of the court's powers to penalise an unreasonable course of conduct of litigation will be exercised.
6. So far as the costs are concerned, both parties succeeded without a struggle in establishing that there was a contract -- not the contract either of them actually pleaded or sought for in the court below -- but a contract to perform work for reward. To that extent it was a draw. To the extent that the appellant succeeded in the appeal, his success was undoubtedly greater than the success of the respondent to the appeal and on the cross-appeal the course of trading that was lost. We have taken a robust view of these matters. We conclude that the fair order for costs to do justice between the parties is to say that the appellant should have two-thirds of its costs of the appeal, but that there should be no order on the cross-appeal.
7. The costs of the matters remitted to the judge are of course now costs in the case for him, Judge Thornton, to determine as condignly as he thinks fit.