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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 >> McDonald & Anor v D&F Contracts Ltd  EWHC 1600 (TCC) (19 March 2018)
Cite as:  WLR(D) 424,  WLR 5695,  1 WLR 5695,  EWHC 1600 (TCC)
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QUEEN'S BENCH DIVISION
TECHNOLOGY & CONSTRUCTION COURT
7 Rolls Buildings
London EC4A 1NL
B e f o r e :
| (1) DONALD McDONALD
(2) RUTH McDONALD
|- and -
|D&F CONTRACTS LIMITED
THE DEFENDANT did not appear and was not represented
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
Crown Copyright ©
"Where a claim is based upon a written agreement: (1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim "
But that is not what has been done in this case. In at least one little respect, that has caused me some concern on this application.
The application for judgment in default
In the Taylor case Popplewell J said this at paragraph 36:
"The next point that is taken is that the condition in Rule 12.3(1)(a) is not satisfied because the first defendant has filed an acknowledgement of service, albeit late and without, as I have decided, it being appropriate to grant an extension of time. Mr. Harding [who was counsel] referred me to some dicta of Blair J in ESR Insurance Services Limited v. Clemons & Ors" [and I note that that case has also been put before me. ] "That was a case in which on the facts, Blair J granted an extension of time and therefore the point now under consideration did not arise, although he expressed himself as saying he had some doubt as to whether a default judgment could be entered where there had in fact been an acknowledgement of service, albeit late.
37. In my view, there are potentially two answers to this point the first of which is decisive. The relief to which the claimant is entitled must be judged by reference to the date of the application. At that time, Rule 12.3 was indisputably fulfilled because there had been no acknowledgement of service then entered and time had expired. In my view, a defendant cannot defeat a claimant's entitlement to relief at the date on which the application is made by subsequently serving an acknowledgement of service outside the time allowed for by the rules, in circumstances where there has been no extension of time, a fortiori where there has been an application for an extension of time which has been refused. That is sufficient of itself to dispose of the point. [ I say at that point that is the decision with which I have already agreed.]
Popplewell J continued,
"Secondly, there is much force in the argument that what is meant in Rule 12.3 by an acknowledgement of service is a timeous acknowledgement of service; if so even in circumstances (which are not the circumstances of this case) in which an application for judgment in default of acknowledgement of service is made after an acknowledgement of service has been served out of time, Rule 12.3 would be fulfilled in the absence of any extension of time by the court."
" the first defendant argues that on a literal reading of CPR 12.3(2) by filing and serving his defence albeit out of time it follows that the pre-condition in CPR 12.3(2)(a) is no longer met and that as a result default judgment can no longer be sought."
[ I pause to observe that that rule, 12.3(2)(a), is the one that applies where there has been an acknowledgement of service but the defence is then served late. But for the purposes of my consideration of this issue that does not seem to me to be a material difference.]
The Deputy Master went on:
"In other words, so the first defendant argues, an application for judgment in default of a defence would automatically be defeated whenever a defendant files a defence however late. In support of this argument, reliance is placed on Coll v Tattum (2002) 99(3) LSG 26 in which Neuberger J [as he then was] observed that the provisions of the CPR on this point were 'not entirely clear' and that 'the footnotes to the Rules appear to point in different directions'."
"That further reasoning on the face of it creates an inconsistency with the first line of reasoning, because if an acknowledgement of service is invalid for the purposes of CPR 12.3 if out of time, then that would be an answer regardless of whether acknowledgement of service was filed prior to the application notice. It would also entail that a claimant would be entitled to automatic default judgment where permission of the court is not required, even if there is an acknowledgement of service on file where the request for judgment was presented, putting the court offices in the position of having to determine whether acknowledgement of service was valid or not."
The defendants' position
i. At paragraphs 14.1 to 14.5 they plead in general terms breaches of contract giving rise to defects in the works. Paragraph 14.16 pleads what may be an allegation of over-valuation or apparently a breach in overcharging as does paragraph 14.8. Both may be construed as setting out a claim for moneys had and received. Paragraph 14.7 pleads a failure to pay subcontractors which is not, absent some unusual express terms, a breach of contract between the employer and the contractor. I pause to observe again that I have not seen, as I ought to have done, a copy of the contract.
ii. Paragraph 15 then explains clearly that these allegations are not exhaustive but are indicative only of the range of problems encountered and "that the loss and damage suffered by the claimants is not limited to those arising from the failures set out above".
iii. That loss is then pleaded in paragraph 18.
i. the first item is a claim for £68,000 for "profit on D&F invoices". That claim is incoherent. It is wholly unclear what it is referring to. The best I can do is speculate that it refers to profit that has been claimed by and paid to D&F but that is not a claim for damages for breach of contract and/or there is no breach pleaded that could give rise to such a claim.
ii. Paragraph 18.2 claims £51,000 for "works required to make the property habitable". Those are, I would assume, claims for the cost of remedial works albeit that is not stated.
iii. Paragraph 18.3 claims £106,000 for "incomplete works" which I surmise is the additional cost of completion.
iv. Paragraph 18.4 claims £65,500 for "defective works" which is presumably a claim for the cost of remedial works.
v. Although these claims under paragraphs 18.2, 18.3 and 18.4 are expressed in the most general terms, they are at least recognisable claims that can be related back to the sample allegations of breach in paragraph 16. That cannot be said for the claim in paragraph 18.5 for £21,000 for "electrical works" or for the claim in paragraph 18.7 for £3,000-odd for "landscaping works". The claim for a little over £1,500 for "lift repair" can be related back to one of the allegations of breach.
vi. There is then a claim for £39,000 for payments "not made to subcontractors". That would appear to be the claimants' claim that they are entitled to recover monies paid to the defendant in respect of subcontractors' works that were not then paid to the subcontractors by the defendant. Whether the subcontractors are paid or not is usually, in contractual terms, not a concern of the employer. There may be, unusually, particular terms that alter the position in this case but the Particulars of Claim articulate no basis at all for this claim.
vii. The last amount in paragraph 18 is a claim for nearly £10,000 for "items paid for but not delivered to site".
"There is no back up of any of the figures contained in the claim. We have not received the documents listed. The claimant has not paid our adjudication award dated 24 June 2015 in the sum of £25,325.25."