Case No: HT-09-349
Neutral Citation Number: [2010] EWHC 1577 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25 June 2009

Before :

MR JUSTICE AKENHEAD
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Between :

	(1) KEVIN SWANN (2)KOULLA SWANN	Claimants	
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	POTTON LIMITED	Defendant	

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Charles Douthwaite (instructed on public access basis) for the Claimants
Nicholas Collings (instructed by Geldards LLP) for the Defendant

Hearing dates: 25 June 2010
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JUDGMENT
Mr Justice Akenhead: 

1.	These proceedings have been going in one form or another for about four years. They were originally initiated in the Newbury County Court but were later transferred to the TCC. They originally involved Arkle Developments who did some of the construction works at the house but essentially the issues between Mr and Mrs Swann against Potton Ltd are relatively simple. They involve a complaint by the Swanns that the timber framed house supplied and erected by Potton pursuant to a contract made in 2004 was, as designed or constructed, subject to what is said to be excessive shrinkage and differential movement. The total claim is something just under £120,000.

2.	As long ago as September 2008 the District Judge ordered that a single joint expert should be appointed. Yet, just short of two years later this has only just been done. In February 2009 it was recorded before the Deputy District Judge at the County Court that the parties proposed to instruct a Mr Lawler of a Scottish firm of engineers as a single joint expert and that the parties should agree a letter of instruction and send the same on or by 25 February 2009. There have been several unsuccessful attempts by Potton to strike out the Swanns’ claim. 

3.	Following the transfer of the proceedings to the TCC in London in September 2009, there was a belated and wholly unjustified attempt by Potton to go back on its agreement and on the court orders that there should be a single joint expert; this was in November 2009. The trial date was fixed in November 2009 initially for 15 March 2010 and it was made very clear to the parties that the expert had to be appointed promptly and well in time before the trial. I also ordered the exchange of witness statements by 1 December 2009. That trial date was by agreement changed to 26 July 2010 and indeed, by consent, other directions were made such as exchange of statements being put back, following a period over December 2009 going into January 2010 in which the parties sought to resolve their differences by negotiation. 

4.	For a considerable period of time, at least several years, the Swanns have been generally unrepresented although from time to time have had representation by Counsel on a public access basis. It is clear however that they had done much of the pre-trial preparation and undertaken correspondence themselves. Potton has been represented by experienced solicitors and Counsel.

5.	Following the service by Mr Swann of a lengthy witness statement, matters came yet again before the Court, Mr Justice Ramsey, on 19 May 2010. It is clear that the learned judge (by the orders which he made) was extremely concerned that the letter of instruction to the expert had not been finalised. He made orders with a view to securing that the letter of instruction was finalised and the expert instructed by 27 May 2010. He ordered that if the parties could not agree on the identity of the single joint expert (if Mr Lawler was not available) or the letter of instruction was not agreed by that date the parties were to send a note in draft letter to the court for further directions. Again the expert was still not appointed. The learned judge also ordered that the Swanns were to serve a draft re-amended Particulars of Claim by 4 PM on 2 June 2010 and that by 26 May 2010 an amended witness statement confining itself to matters of fact was to be served by Mr Swann. This latter order arose because the judge expressed some concerns that the statement contained opinions on expert or semi-expert matters.

6.	The draft amended pleading was served on 2 June 2010 but several hours late. Potton oppose the amendments. The amended witness statement was served and it is said to contain matter which is in effect inadmissible; in effect, Potton seek to have large parts excised.

7.	Meanwhile, it had emerged some months ago that Mr Lawler could not provide the expert assistance within the anticipated timescales or possibly at all and so it was that in principle, immediately after the hearing in front of Mr Justice Ramsey, it was agreed that Mr Henderson of Mr Lawler’s firm would be a suitable replacement. No-one seems to have asked him then whether he was available and what time frame he needed to investigate and draft his report. Various drafts of the letter of instruction travelled between the Swanns and Potton’s solicitors in late May going in to June. Potton’s solicitors wrote to the court on 7 June 2010 (received on 8 June 2010 complaining about the latest draft of Mr Swann’s statement and highlighting some issues on the draft letter of instruction. They wrote to the Swanns on 8 June objecting to the draft amendment. They wrote to the Court on 14 June 2010. 

8.	In Mr Justice Ramsey’s absence out of London, I wrote to the parties on 16 June 2010 making it clear that it was necessary to keep this case on track for trial on 26 July 2010. I fixed a telephone hearing from 9:30 AM on Monday, 21 June 2010; Potton’s solicitors sought to defer this until 25 June 2010 but in my letter to the parties of 17 June 2010 I directed that the short hearing should go ahead. At that hearing, I ruled on all the points of objection made by Potton’s solicitors to the draft letter of instruction, broadly in effect against the drafting suggestions which they had made. I directed that the parties should seek immediately after the telephone hearing to contact Mr Henderson and agreed finally the financial basis on which he was to be retained; the rate per hour had already been canvassed and agreed that there had to be formal agreement about reasonable expenses and the like. I made it clear that the letter should in any event go to Mr Henderson forthwith. That has not been followed either.

9.	It now belatedly emerges that Mr Henderson is away on leave at the time of the trial and indeed next week. Therefore the trial will on any account have to be adjourned. The trial will now take place on 11 October 2010.

10.	So far as Mr Swann’s witness statement is concerned, I made it clear that the latest version should be given to the expert in its current form but an appropriate warning should be given to the expert generally to have regard to the factual witness statements only with regard to fact as opposed to expert opinions. I made it clear on 21 June 2010 that, rather than waste more time and effort seeking to fillet this statement, the parties could trust the trial judge to ignore or at the very least attach little weight to any inadmissible or purely hearsay statements. Given the size of the case and its ambit, it was wholly disproportionate in terms of cost and the time of the parties and the Court to continue this exercise now. Notwithstanding these very clear indications, Potton’s Counsel has through his written submissions today and orally sought to persuade me to continue this exercise today. Having regard to the overriding objective and to the waste of time and cost involved, I declined to do so; it is a wholly disproportionate exercise.

11.	Next, I turn to the Amended Particulars of Claim. The fact that the draft was a few hours late is no valid objection; the order was not an unless order and I can not see that the slight lateness has contributed at all to any conceivable prejudice. The other objections made are also unjustified:

(a) Objection is taken to all the further amendments which are contained in Paragraphs 9A to 9F; in these paragraphs, the Swanns seek to argue that there was a term of their contract with Potton by which the latter agreed to procure a structural warranty underwritten by Zürich Insurance; objection is taken because it is said there is no definition of where in the contract this agreement is to be found. Such term if it exists at all will either be expressed or will arise as a matter of interpretation. The contract does not appear to be very complicated and Potton can easily decide whether they admit or deny this assertion.

(b) The gravamen of the objection relates to Paragraph 9B in which the complaint is made that Potton in breach of contract failed to procure the structural warranty which Zürich has refused to provide until remedial works are carried out as set out in a letter from Zurich to the Swanns dated 22 April 2008 which is annexed to the pleading. That letter on its face confirms that the warranty or Insurance Certificate will be issued after various remedial works had been done. It seems clear on a reading of the letter that the bulk of the is is complaints which need to be remedied are those to do with shrinkage and movement of the timber frame work although it is clear also that some cracking of plasterboard and tiling and re-fixing and joinery items is required apparently to be carried out by Arkle. There is also a list of other works such as mastic pointing and the provision of ventilation of the cavities which is called for by Zurich although it is, at least superficially, unclear whether the warranty will not be issued until these other matters are also dealt with.

(c) Potton say through its Counsel that this therefore is a claim which can not succeed because it is clear, he argues, that other work which is not the responsibility of Potton is or is also preventing the issue of the Zurich warranty.

(d) In my view, there is a properly arguable claim, albeit one that may or may not succeed ultimately depending on the facts. It may turn out to be an arguable defence that the Swanns would not have got the warranty in any event irrespective of any established defaults on the part of Potton. It may also prove to be the case, on the facts, that the non-Potton defects can only be addressed after any timber frame defects (for which Potton is found ultimately to be liable) have been remedied; in those circumstances it may be found that it was the Potton defects which in reality prevented the issue of the warranty. There may also be properly arguable points as to joint causes of loss along the lines that, if there are two causes of loss of equal efficacy, the fact that one is not the legal responsibility of the defendant may be immaterial.
(e) The other amendments are consequential from those in Paragraphs 9A and B.

12.	I am very concerned about the way in which these proceedings have been conducted. It is axiomatic that solicitors and Counsel when instructed on a given case owe duties to the court as well as to their client to secure not only that the overriding objective is achieved if at all possible but also that the Court’s orders are observed. These duties come even more into focus when the other party is not represented. I have formed a very clear view that things have gone seriously wrong with regard to the appointment of the single joint expert. Potton tried initially to have the order for a single joint expert set aside and, notwithstanding the blandishments of the court, it could be said that at least Potton and its team have contributed to a state of affairs in which the trial can not go ahead at the planned date. Whilst they seek to explain and excuse the delays as all attributable to the Swanns, that with respect to them is little excuse or explanation. Their duty to the court was that as soon as it was clear, for whatever reason, that a letter of instruction could not be agreed, they should have brought this matter before the court months ago. I also consider that it was most unfortunate that Mr Henderson was not asked on 19 May 2010 after the directions hearing about his availability for the trial; there was, I am told, another engineer in the firm, a Mr Ferguson, who was also potentially available who might have been available for the July hearing.

13.	I trust very much that the parties between them will cooperate to ensure that all further orders are complied with and that, if for any good, or indeed bad, reason, there is any un-resolvable problem which might materially impact on the trial or case management in general, one or other or both of the parties should bring the matter to the attention of the Court promptly.