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England and Wales High Court (Technology and Construction Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Cundall Johnson and Partners Llp v Whipps Cross University Hospital NHS Trust [2007] EWHC 2178 (TCC) (19 September 2007) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2007/2178.html Cite as: 115 Con LR 125, [2007] CILL 2516, [2007] BLR 520, [2008] TCLR 1, [2007] EWHC 2178 (TCC) |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
131-137 Fetter Lane London EC4A 1HD |
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B e f o r e :
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CUNDALL JOHNSON AND PARTNERS LLP |
Claimant |
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-v- |
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WHIPPS CROSS UNIVERSITY HOSPITAL NHS TRUST |
Defendants |
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Clifford's Inn, Fetter Lane. London EC4A 1LD
Tel: 0207 269 0370 Fax: 0207 405 9884
MS A BODNAR (instructed by Nabarro Nathanson) appeared on behalf of WHIPPS CROSS UNIVERSITY HOSPITAL NHS TRUST
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Crown Copyright ©
MR JUSTICE JACKSON:
Part 1 Introduction
After these brief introductory remarks I must now turn to the facts.
Part 2 The Facts
"I apologise for this delayed reply to your letter dated 5th May 2006 addressed to our former Director of Finance, Mr. Bernard O'Sullivan. I am the Deputy Director of Finance.
Unfortunately, the Project Director who was responsible for our Enabling and Decant Works project is also no longer employed by this Trust, and I am having difficulty in locating the necessary paperwork to verify that the fees referred to in your letter are payable to your client.
I should therefore be grateful if you would forward to me copies of the relevant appointment documents, including the Fee Schedule and Fee Forecast that are referred to in your client's requests for payment".
"Thank you for your letter of 17th May 2006.
Please find attached the fees schedule together with a covering letter sent by our clients to Brian Maloy dated 13th February 2004.
There is no fees forecast as the job has been fully invoiced to date.
Please note that this matter has been rather protracted and the various invoices are long overdue for payment. Our client is seeking additional interest charges upon the outstanding balance calculated in accordance with the Association of Consulting Engineers conditions of engagement and attach a schedule showing the interest charged.
Please therefore forward a cheque in the sum of £314,781.83 as a matter of urgency".
"In mid-2002, our client was instructed to perform consultancy services for enabling and decant works in relation to the Energy Centre. This appointment was to be under a bespoke Consultant Framework Agreement, but that form of Agreement was not finalised. The latest draft of that Agreement is dated 6th August 2004, and is modified by an email from Trowers & Hamlin dated 9th August 2004 and our client's reply letter of 24th August 2004.
At a meeting on 13th April 2005, our client was instructed to undertake no further Contract Administrator, Lead Consultant or Design Team Duties. By letter dated 5th January 2006, our client confirmed that pursuant to those instructions it had allocated its personnel to other projects (although its involvement in certain outstanding issues continues to the present time).
Our client invoiced the Trust for its services as agreed, and £315,958.11 including VAT remains outstanding, as set out below".
There then follows a list of the relevant invoices, including two invoices claiming outstanding interest.
"We are instructed that Watson Burton first wrote to our client regarding your client's requests for payment on 5th May 2006. The letter was addressed to our client's former Director of Finance, and was responded to by its Deputy Director of Finance on 17th May.
In his reply, the Deputy Director advised that the project manager who was responsible for this project was also no longer employed by our client, and that he was having difficulty in locating the necessary paperwork to verify that the fees claimed by your client were properly payable. He therefore requested copies of the relevant appointment documents, including the "Fee Schedule" and "Fee Forecast" referred to in the requests for payment.
To date, our client has not received any satisfactory response to that letter. Watson Burton's fax letter to our client dated 30th May did enclose a fee schedule (but not the notes that it refers to as being attached) and what purported to be a covering letter dated 13th May 2004. However, the fees schedule was not faxed legibly, and it is not possible to relate it or the covering letter to the requests for payment in any meaningful way.
Our client obviously cannot be expected to make a payment simply because someone asks for it. As was clear from the Deputy Director of Finance's letter of 17th May, our client is concerned to verify that the amounts claimed are properly payable, but because of personnel changes it is in the unfortunate position of being unable to locate its own paperwork in relation to the matter.
We must therefore repeat the request in the Deputy Director's letter of 17th May, that your client provide (legible) copies of all the relevant appointment documents, sufficient to enable our client to verify that the amounts claimed are properly payable. Please also provide a copy of your client's payment request ref. R33160 dated 7th October 2005, which was listed in the statement enclosed with Watson Burton's letter of 5th May 2006 but not itself enclosed".
"We do not think that any meeting can sensibly take place between the parties now until such proper details have been provided and our client has had an opportunity to investigate them".
Part 3 The Present Application
Part 4 The Pre-Action Protocol and its applicability to the present case
" the Protocol provides the framework for a sensible discussion, or the chance for a sensible discussion so that the option is available to a party to avoid the need for litigation".
"1.5 Proportionality
The overriding objective (CPR r.1.1) applies to the pre-action period. The Protocol must not be used as a tactical advice to secure advantage for one party or to generate unnecessary costs. In lower value claims (such as those likely to be proceed in the county court) the letter of claim and the response should be simple and the costs of both sides should be kept to a modest level. In all cases the costs incurred at the Protocol stage should be proportionate to the complexity of the case and the amount of money which is at stake. The Protocol does not impose a requirement on the parties to marshal and disclose all the supporting details and evidence that may ultimately be required if the case proceeds to litigation".
"1.1 This Pre-action Protocol applies to all construction and engineering disputes (including professional negligence claims against architects, engineers and quantity surveyors).
1.2 Exceptions. A claimant shall not be required to comply with this Protocol before commencing proceedings to the extent that the proposed proceedings (1) are for the enforcement of the decision of an adjudicator to whom a dispute has been referred pursuant to section 108 of the Housing Grants Construction & Regeneration Act 1996 ("the 1996 Act"), (2) include a claim for interim injunctive relief, (3) will be the subject of a claim for summary judgment pursuant to Part 24 of the Civil Procedure Rules, or (4) relate to the same or substantially the same issues as have been the subject of recent adjudication under the 1996 Act, or some other formal alternative dispute resolution procedure".
Part 5 The Defendant's Application for a Stay
(End of Judgment)