Case No: HT/08/252 
Neutral Citation Number: [2011] EWHC 3070 (TCC) 

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION 
TECHNOLOGY & CONSTRUCTION COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Friday, 4 November 2011
BEFORE:

THE HONOURABLE MR JUSTICE AKENHEAD

- - - - - - - - - - - - - - - - - - - -
BETWEEN:

WILLIAM BERTRAM

		Claimant	

	- and -		
	MARTIN DAWES
	Defendant	

- - - - - - - - - - - - - - - - - - - -
Digital Transcript of Wordwave International, a Merrill Communications Company
101 Finsbury Pavement London EC2A 1ER 
Tel: 020 7422 6131 Fax: 020 7422 6134
Web: www.merrillcorp.com/mls       Email: mlstape@merrillcorp.com 
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - -

MR ADRIAN HUGHES QC and John Dennis-Smith (instructed by CMS Cameron McKenna) appeared on behalf of the Claimant

MR STEPHEN FURST QC and Mr Andrew Singer (instructed by Messrs Goodman Harvey) appeared on behalf of the Defendant
- - - - - - - - - - - - - - - - - - - -

Judgment

MR JUSTICE AKENHEAD:   

1.	This case, comprising a claim and extensive counterclaim, is listed for hearing for 16 working days (four weeks) starting on 21 November 2011
 
2.	I am not going to go into much of the detail of the background to the dispute. Suffice it to say that Mr Bertram was an architect and he was retained by Mr Dawes in respect of what I am sure both parties hoped would be a very interesting and worthwhile series of developments on an estate in Herefordshire.  It comprised of work to or for a number of buildings and structures.
 
3.	The relationship between the parties effectively lasted between about 1999 or 2000 and 2007.  Primarily for the development, a contractor called Treasure & Sons Limited, I believe a local firm in Herefordshire, was retained to carry out a substantial amount of work, albeit not all of the work.
 
4.	There came a time and it is not clear precisely when, but certainly no later than 2007, when Mr Dawes fell out with his contractor, Treasure, and also his architect.  I say “fell out”, I do not use that expression in any pejorative way,:the relationship began to break down for a number of reasons which no doubt the trial will go into. 
 
5.	There has been litigation and arbitration between Mr Dawes and Treasure, which I understand now has been fully resolved, partly through the courts and partly otherwise.

6.	Mr Bertram, the architect, issued proceedings for his supposedly outstanding fees in proceedings which were issued in September 2008.  Indeed, these are the proceedings with which the Court is concerned.  Matters did not proceed as promptly as this court is used to and I have to say that, although the additional delay no‑one is suggesting is anyone's fault, Amended Particulars of Claim had to be served, Defence and Counterclaim served, extensive exchanges of request for information, provision of information, amendments and re-amendments primarily, so I understand it, of the Defence and Counterclaim and the Scott Schedules that were ordered.

7.	Mr Bertram's claim is [I say] simply, it may not be simple, a claim for fees and that is met by some specific defences on aspects of the fees, but also primarily by set‑off and counterclaim which runs to something between £2m and £3m.  The counterclaim is primarily to do with, first of all ‑‑ and I am not putting this in order of priority of course ‑‑ defects, both in the mechanical and electrical and in the more regular building or general construction works.  That accounts for about £900,000 counterclaim.  It may be a little more; it may be a little less.
 
8.	There are other complaints, for instance Mr Dawes asserts that Mr Bertram was negligent in relation to the method (or methods) of construction procurement with the consequence, he asserts, that he incurred substantially more costs than he would have done if what he would call a proper and different method (or methods) of procurement was or were used.
 
9.	In addition, there are complaints that Mr Bertram prematurely issued the Certificate of Practical Completion in December 2004 and a Certificate of Making Good Defects in 2007.
 
10.	The Scott Schedule in, one hopes, its relatively final form is an extensive document.  Although this court is well‑known for its alleged predilection for Scott Schedules, it is not as common as all that that the Court has cases that go to trial involving Scott Schedules, but this appears to be one that has got through the net, so to speak.  But there are numerous defects of the two categories referred to.
 
11.	Primary witness statements have been exchanged and experts have met, and are meeting, with a view to producing final statements and so on. 
 
12.	The court has made three orders in the past relating to the timing of this trial.  The first was for a trial in February of this year.  That was vacated I am told by consent and a trial date in a window following Easter of this year was then set.  That was then changed to a trial date starting on 21 November 2011.  So it is right that three trial dates, or at least two trial dates and one trial window, have been identified and the court so ordered.  It is listed for four weeks, although both Counsel have properly and sensibly accepted that there is a reasonably good chance that it will take less than the four weeks and, indeed, given the amounts in issue I would very much hope that that would be the case. Certainly, the Court will do what it can to ensure that a period of less than four weeks is utilised.
 
13.	Disclosure in this case has been spasmodic.  I say that not by way of criticism, but it does appear that on both sides disclosure has not been completed in one go as is required, but for a number of reasons each party has found or been given copies of yet further documents which have then been disclosed.  This does happen, particularly in circumstances where other parties, for instance such as Treasure, have been involved.
 
14.	The Defendant now applies for an adjournment of the trial, not just for a few days but by at least several months, primarily by reason of the late disclosure of a substantial number of photographs.  It seems that these photographs were photographs taken by or in the possession of Treasure and they were made available to the Claimant's solicitors in the first week or so of September of this year.  It has been strongly urged in witness evidence and, indeed, initially in the skeleton arguments that effectively Mr Bertram and his legal and professional team are sufficiently close to Treasure to be able to call up documents virtually at will.  That is firmly denied by and on behalf of Mr Bertram.  Both Counsel, quite properly, accept that I cannot really decide that issue on the basis of written witness evidence and I am not going to do so; so essentially I cannot proceed on that basis.
 
15.	Certain it is that there appears to have been little love lost between Mr Dawes and Treasure given the court proceedings which were not all by Mr Dawes as such, but in relation to all the proceedings that took place, settlement of the arbitration which was then challenged, issues on whether the arbitrator had a right to make any orders on costs and so on, all of which have been the subject matter of at least four, if not more, judgments from the TCC, two of which at least involve me. 
 
16.	However, so far as these photographs are concerned, it does appear that at least some of the photographs, if not all of them, were disclosed in the arbitration proceedings between Mr Dawes and Treasure.  There is an issue, again which I cannot resolve on the evidence, as to whether all the 1100 or 1200 photographs recently disclosed by the Claimant were disclosed in the arbitration.  It is accepted that the Defendant's solicitor, Mr Jones, did inspect photographs during the arbitration process, but it seems clear that he certainly at least called for copies of something over 100 of the photographs and indeed when disclosure came up in a current court proceedings, disclosure of those photographs was given.
 
17.	There is an issue.  It is suggested in evidence filed on behalf of the Claimant that Mr Jones, the Defendant’s solicitor had access to all of the photographs, the 1100 or 1200 photographs, now made available.  That is not accepted by Mr Jones.  Anyway, be that as it may, the real problem has arisen in this case because the assistant solicitor dealing with matters at the Claimant's solicitors, having received these photographs realised that they might have to be disclosed, but thought it would more sensible, rather than just simply identifying straightaway to the solicitors for the defendant that these photographs had come into his possession, to have them properly  copied. Then once that had happened, which seemed to take an inordinately long time, but it took what it took, he then decided that it would be sensible to refer these photographs to Mr Bertram's architect expert, Mr Fleming.  He did that about two weeks ago, or about 20 October.
 
18.	In a way what he did then was sensible in asking the architect expert whether all or any of these photographs were relevant.  It is not quite clear what the architect responded to on that, other than generally that probably only a relatively limited number were likely to be relevant.  Be that as it may, it was as late as 28 October 2011 that those photographs (or appropriate copies thereof) were offered and given to the Defendant.  That was on 28 October, which I believe was a Friday.  On 1 November, if not 31st October 2011, the Defendant issued his application for an adjournment; so there has been no delay on the part of the Defendant in issuing his application for an adjournment.

19.	The real issue is a pragmatic and practical one, which is whether or not, given the impending trial on the 21st November 2011, there can be a fair trial and whether the Defendant and the Defendant's professional team will have sufficient time to take on board the photographs.
 
20.	It has been made clear that so far as timetabling is concerned, the timetable which everyone had envisaged up until about a month ago cannot be kept.  There are some reasons for that which are not associated with the photographs, so for instance supplemental witness statements were due to be served earlier, but it is now accepted in any event irrespective of the photographs that that could not take place until this week.  There are other documents like a Re‑amended Reply of Defence to Counterclaim and an amended response to the Re‑amended Scott Schedule that will have to be done comfortably before the trial.  It is also clear, at least possibly and partly, that, due to some relatively late further amendments, permission for which has been granted to Mr Dawes, that the experts needed rather more time to finalise joint statements and to file reports.  So some of the delay was already, so to speak, in place and in itself, whilst giving the courts not insignificant congestion in the period leading up to trial, parties were properly prepared to take that in their stride and still be sufficiently prepared for a start on the 21st November 2011.
 
21.	I have not been shown the photographs and that may be just as well because 1100 or 1200 photographs would not necessarily assist me, but I cannot readily see that photographs are going to be peculiarly important with regard to the largest defect claim, which relates to the M&E defects.  There will be, and indeed from the Scott Schedule it is clear there are, some complaints about things which are missing, which are or may be physically visible, but there are also a substantial number of complaints on the M&E defects which relate to matters which cannot necessarily visually be seen and cannot be seen from the photographs whenever the photographs were taken.
 
22.	No doubt, the experts for each party in the different disciplines may well have taken photographs for illustrative purposes of what the defects, visible defects are or were,, but I cannot see that photographs of the M&E installations are going to add an enormous amount, although they may do so; it may be that if some of the alleged visual M&E defects are visible in photographs taken prior to December 2004 when perhaps completion was certified that may support the complaints to which Mr Dawes makes reference about the premature issue of the Certificate of Practical Completion.  So it is not just the existence of the defect, but whether a particular defect was visible, sufficiently visible to be picked up by a photograph taken before December 2004.
 
23.	Again, those visible defects ‑‑ and this also applies to the non‑M&E defects ‑‑ one would have expected the experts to have reviewed the defects and to identify whether they are likely to have been visible or not on an inspection by a competent architect at appropriate stages.  The photographs, such as they are, will either confirm it or they will not and it will be a matter of not immense complication, it seems to me, to the experts primarily but possibly also some of the factual witnesses, to look at photographs, albeit that there are a lot of them, to identify whether defects are visible or not.  I am told that some of the photographs, perhaps many of them, have timings on; some do not.  Ones that do not have timing on may be of less assistance.
 
24.	So far as the photographs generally are concerned, it may be of some importance, it is difficult to judge, to determine what the state of progress was at given stages.  This may partly support or not Mr Dawes's assertions about inappropriate, or allegedly inappropriate, procurement.  Mr Furst QC gave an example of one of the areas of complaint which relates to one of the buildings, maybe one of the smaller buildings, called Annie's Cottage; it is going to be asserted, he tells me, that a separate system of procurement could and should have been recommended with regard to that on the basis that the site was small and reasonably self‑contained.  That may be the case; I do not know.  But if that is and forms part of a primary complaint, the size of the cottage, the size of  the plot around the cottage and the access to it are going to be matters which are relatively easily resolvable and presumably have already been considered in some detail by the experts. If there are some photographs which show what the areas in and around the cottage were at a given time,  they may give some added support or not as the case may be to either parties' contentions.  But I cannot see at the moment that there will be many photographs, for instance, in relation to that and, even if there are, the point will already have been considered.  So at best, it seems to me that a number of these photographs are going to be corroborative rather than directly probative.

25.	That said, it must be right that the experts probably in all the disciplines, but certainly in the architectural and M&E disciplines, should have the opportunity to consider the photographs and indeed so should the witnesses.  It is accepted on behalf of the Claimant that matters will have to at best be concertinaed into the last week before the trial, at least in relation to the architectural experts involved in the production of expert evidence towards the end of the week before the trial and that is not satisfactory.
 
26.	It is not satisfactory for a number of reasons, but one of the main reasons advanced by Mr Furst QC, with which I concur, is that it does not leave the lawyers, who are not unimportant in the context of a case like this, sufficient time to prepare the case, particularly, for instance, in relation to skeleton and opening submissions, but also in terms of preparing cross‑examination.  It does not give them sufficient or may not give them sufficient time.  It does seem to me that a fair point is made so far as that is concerned.
 
27.	I cannot see, however, there should be any great difficulty in the experts studying and considering the photographs and deciding broadly what are or may be relevant and for the witnesses to consider them in detail by the end of next week. It does seem to me that one should not place these photographs on some key pedestal as photographs, as documents which are bound very substantially to effect the impact of the case; they may do, they may not, but I do not see at the moment that the copious evidence that has already been produced by both sides is going to be severely impacted by looking at even a large number of photographs; it is not uncommon in this court that progress photographs, good or bad quality as the case may be are produced.  They are often produced for illustrative purposes rather than directly probative purposes and I would be very doubtful that competent witnesses, competent experts and above all competent solicitors and barristers who I know are retained in this case will not be able to take these photographs on board.
 
28.	It does seem to me, however, that given the point that Mr Furst QC has made about the lawyers having sufficient time to take matters fully on board and to prepare themselves for skeletons that it would be right to defer the start of this case until 28 November.  That will give an additional week. It will give time for witness statements, supplementary witness statements to be served which can address the photographs by the end of next week, 11 November, and that is the date I take from Mr Furst QC.  That is the date by which his witnesses of fact would be, he thinks, able to take the photographs on board.  Expert reports and expert joint statements are to be finalised no later than 17 November and some earlier than that, but the last one which I think is the architect's expert report to be by then.  That then gives Counsel plenty of time, particularly since they will be well versed in the case already, to get ready for a trial.

29.	I am very, very reluctant to defer the trial until next year. The reasons are, first of all, the general one that this Court much prefers if it ever can, in my experience in the light of the overriding objective and its general practice, to bring matters on for trial as soon as it is fair and reasonably practicable.  Secondly, if this matter was to be deferred, as I have indicated to Counsel, it would not be possible to defer it by a couple of months because the Court is simply unable to accommodate a trial of this length safely before the Autumn of next year.  It is possible that one could treble book, the Court could treble book in June or July, but the parties would then take the risk that they would not get a High Court judge.
 
30.	It has been suggested by Mr Furst QC that this is a case that could be dealt with by a competent recorder and we certainly have competent experienced recorders available to do trials. It is sometimes quite difficult to get recorders who are in private practice for as much as three weeks or four weeks and to expect them to produce a judgment within as short a time as a full scale judge would be able to produce one.  Also, both parties have been proceeding on the basis until now that the matter would be dealt with by a High Court judge and I do not think that it would be fair to deny the parties, in particular the Claimant who has made it clear he would very much prefer to keep the High Court judge, to deny the parties that opportunity.
 
31.	But, it is very much hoped in any event that the trial will not last 16 days; it will last less and obviously the less that it does, the less close to the week before Christmas we  get.  Mr Furst has made it clear that he may have a professional difficulty for one or two days of the week leading up to Christmas, but that said there is a reasonably good chance that we will complete the evidence and argument before then.  If we do not, we will just have to cross that bridge when we come to it, but it seems to me that this matter can safely and fairly be tried starting on 28th.

32.	It will probably be Coulson J who will try the case, but I will have to check with him, given his circuit commitments for January and February 2012, whether he is confident that he will produce a judgment reasonably promptly.  If it is not him, it will probably be me.  I very much hope the parties would get on with their preparation.  As I said, I have no doubt that competent counsel and competent solicitors will get this matter ready for trial and neither party will feel that they are not getting a fair enough time to prepare themselves.
 
33.	I should have added, although it must be speculation at the moment, that the Claimant's architect expert has formed the view that a relatively limited number of the photographs will be relevant, around 10 or 20 per cent.  Of course, the Defendant's expert has not yet analysed them, but the two experts are meeting this afternoon and one would hope that between competent experts and independent experts ‑‑ of which there is no reason to doubt they are anything but ‑‑ will be able to grab the photographs metaphorically “by the scruff of the neck” and identify the ones that are likely to be helpful, either to the Court or either party's case.  I would very much doubt that they would not reduce the number of relevant photographs of the 1100 or 1200 that have been disclosed down to a manageable 200 or 300 at the outside.  That level of photographs in a case like this is not that excessive.  Thank you very much.