|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> PGF II SA & Anor v Royal & Sun Alliance Insurance Plc & Anor  EWHC 1981 (TCC) (29 July 2010)
Cite as:  EWHC 1981 (TCC)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
| PGF II S.A
PGF II(LIME) S.A
|- and -
|ROYAL & SUN ALLIANCE INSURANCE PLC
LONDON & EDINBURGH INSURANCE COMPANY LIMITED
|1st Defendant 2nd Defendant
Timothy Harry (instructed by Maples Teesdale) for the 1st Defendant
Martin Hutchings (instructed by Iliffes Booth Bennett) for the 2nd Defendant
Hearing dates: 23,24,25 February 2010
1,2,3,4,15,16 March 2010
21 June 2010
7 July 2010
13 July 2010(Costs hearing)
Crown Copyright ©
HHJ Toulmin CMG QC
1) Whether the Claimants were entitled to recover damages for dilapidations where the Defendants contended that, at the termination of the leases, the Claimants intended to redevelop the premises. The Defendants also contended that, even if there was no such intention at the due date, and the Claimants did redevelop, they were not entitled to substantial damages.
2) Particular issues relating to items on the Schedule of Dilapidations. Most of these had been resolved by the experts, in some cases during or immediately before trial. The remaining issues related primarily to alternative schemes for the renovation of the existing cladding including the need to treat or remove asbestos, but also included issues in relation to the cradle, the carpets and partitions and ceilings. The schemes to carry out repairs under the lease were hypothetical schemes because, in the event, the cladding was replaced and major refurbishment works were carried out.
3) The claim for lost rent.
4) The costs of the reinstatement claim against the Second Defendant.
5) Costs in the Third Party Claim.
a) The Defendants won on the cladding issue in that their expert Mr Plough's scheme was preferred to that of the Claimants' expert Mr Josey.
b) The claim was exaggerated and this amounted to unreasonable conduct which the Court should take into account. This contention was responded to by the Claimants in a supplemental skeleton and the Defendants abandoned this contention in the course of oral submissions.
c) The Defendant succeeded to a substantial extent on the lost rent claim.
d) Offers to settle were hampered by a lack of realism on the part of the Claimant.
e) Put tentatively in the skeleton argument, but relied on at the oral hearing, the Defendants argue that the Claimants failed to comply with the relevant Pre-action Protocol.
"44.3(1) The Court has a discretion as to –
a) Whether costs are payable by one party to another;
b) The amount of these costs;
c) When they are to be paid
(2). If the Court decides to make an Order about costs -
a) The general rule is that the unsuccessful party must pay the costs of the successful party; but
b) The Court may make a different Order
(4) In deciding what Order (if any) to make about costs, the Court must have regard to all the circumstances, including –
a) The conduct of all the parties;
b) Whether a party has been successful on part of his case even if he has not been wholly successful;
c) Any payment into court or admissible offer to settle made by a party which is drawn to the court's attention and which is not an offer to which cost consequences under Part 36 apply."
"a) the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant Pre-Action Protocol.
b) Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
c) The manner in which a party has pursued or defended a particular allegation or issue;
d) Whether a Claimant who has succeeded in his claim in whole or in part has exaggerated his claim."
"… If a case is not merely exaggerated but is put on a wholly unsustainable basis, it may prevent an early settlement. It may also prevent a Defendant from being able to assess realistically the value of the Claimant's case and make an appropriate Part 36 offer. This will be particularly the case when only the Claimant is able in the first instance to evaluate its own losses. In appropriate cases a Defendant should not be left at such a disadvantage. The situation may, of course, be different if the Defendant is in a position at an early stage fully to evaluate the Claimant's case."
"should include an endorsement by the surveyor preparing it. The surveyor's endorsement should confirm that, in the opinion of the surveyor, all the works set out in the Schedule are reasonably required in order to put the premises in the physical state referred to…that full account has been taken of the landlord's intentions for the property at or shortly after the termination of the tenancy; and that the costs if any quoted for such works are reasonable." In oral submissions the Second Defendant made a wider ranging criticism of the Claimant in relation to the Pre-Action Protocol.
"1. Whether the parties have complied in substance with the relevant principles and requirements;
2. The proportionality of the steps taken compared to the size and importance of the matter;
3. The urgency of the matter.
Contentions of the Parties
a) They succeeded on the cladding issue in that Mr Plough's evidence was preferred to Mr Josey
b) The claim was hugely exaggerated;
c) Although the Claimants recovery exceeded the Defendants Part 36 offers, it is substantially less than the Claimants own Part 36 offer on the main claim of £1.75 million plus 8% interest.