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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Briggs & Forrester Electrical Ltd v Southfield School for Girls & Anor [2005] EWHC 1734 (TCC) (20 July 2005) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2005/1734.html Cite as: [2005] BLR 468, [2005] EWHC 1734 (TCC) |
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THE
HIGH COURT
OF
JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY & CONSTRUCTION COURT
![]() ![]() Strand London |
||
B e f o r e :
____________________
![]() ![]() |
(Applicant) | |
-and- | ||
(1) ![]() ![]() |
||
(2) NORTHAMPTONSHIRE COUNTY COUNCIL | (Respondents) |
____________________
JL Harpham Ltd Official Court Reporters and Tape Transcribers
55 Queen Street Sheffield , S1 2DX
____________________
For the
Applicant: MISS KATE GRANGE
For the
Respondents: MR SIMON HARGREAVES
____________________
OF
JUDGMENT
Crown Copyright ©
20th July 2005
HIS HONOUR JUDGE COULSON QC:
Introduction.
The
Protocol Procedure
"6. Sincethe
work done by B&W was not satisfactory, and caused some asbestos pollution and contamination to
the school
, it is inevitable that B&F will be held liable
for
breach
of
contract to
the school
. B&F had a contractual obligation to carry out their work in a good and workmanlike manner, and it is clear that they, through B&W, did not do so".
"It is not accepted thatthe school
was contaminated by asbestos prior to
the
breaches
of
contract on
the
part
of
your client. Your letter contains no evidence to that effect. If you do have such evidence, then it should be disclosed, please. Failing that, we shall be forced to conclude that your remarks are pure speculation. Indeed it is apparent that much
of
your pre-action disclosure request is calculated to provide fuel
for
this speculation".
Relevant principles
"1. This rule applies when an application is made tothe
Court under any Act
for
disclosure before proceedings have started.
2.The
application must be supported by evidence.
3.The
Court may make an order under this rule only where
(a)the
respondent is likely to be a party to subsequent proceedings,
(b)the
applicant is also likely to be a party to those proceedings,
(c) if proceedings had started,the
respondent's duty by way
of
standard disclosure - set out in Rule 31.6 - would extend to
the
documents or classes
of
documents
of
which
the
applicant seeks disclosure, and
(d) disclosure before proceedings have started is desirable in order to: (i) dispose fairlyof the
anticipated proceedings, (ii) assist
the
dispute to be resolved without proceedings, or (iii) save costs".
"76: In general, however, it should in my judgment be remembered thatthe
extent
of
standard disclosure cannot easily be discerned without clarity as to
the
issues which would arise once pleadings in
the
prospective litigation had been formulated. This Court touched on
the
question in Bermuda International Securities -
v
- KPMG [2001] Lloyd's Rep PN 392 397, Paragraph 26, when Waller LJ there said that
'The
circumstances spelt out by
the
rules show that it will only be ordered where
the
Court could say that
the
documents asked
for
will be documents that will have to be produced at
the
standard disclosure stage. It follows from that that
the
Court must be clear what
the
issues in
the
litigation are likely to be, i.e. what case
the
claimant is likely to be making, and what defence is likely to be being run, so as to make sure
the
documents being asked
for
are ones which will adversely affect
the
case
of
one side or
the
other, or support
the
case
of
one side or
the
other.'
77: It also seems to me to follow that if there would be considerable doubt as to whetherthe
disclosure stage would ever be reached, that is a matter which
the
Court can and should take into account as a matter
of
its discretion."
"81: It is plain not only thatthe
test
of
'desirable' is one that easily merges into an exercise
of
discretion, but that
the
test
of
'dispose fairly' does so too. In
the
circumstances it seems to me that it is necessary not to confuse
the
jurisdictional and
the
discretionary aspects
of the
paragraph as a whole. In Bermuda International Securities, Waller LJ contemplated that Paragraph 3(d) may involve a two-stage process. I think that is correct. In my judgment,
for
jurisdictional purposes
the
Court is only permitted to consider
the
granting
of
pre-action disclosure where there is a real prospect in principle
of
such an order being fair to
the
parties if litigation is commenced, or
of
assisting
the
parties to avoid litigation, or
of
saving costs in any event. If there is such a real prospect, then
the
Court should go on to consider
the
question
of
discretion, which has to be considered on all
the
facts and not merely in principle but in detail.
82Of
course, since
the
questions
of
principle and
of
detail can merge into one another, it is not easy to keep
the
two stages
of the
process separate. Nor is it perhaps vital to do so provided however, that
the
Court is aware
of
a need
for
both stages to be carried out.
The
danger, however, is that a Court may be misled by
the
ease with which
the
jurisdictional threshold can be passed, into thinking that it has thereby decided
the
question
of
discretion, when in truth it has not. This is a real danger, because first, in very many if not most cases, it will be possible to make a case
for
achieving one or other
of the
three purposes, and secondly, each
of the
three possibilities is in itself inherently desirable."
"… discretion is not confined and will depend on allthe
facts
of the
case. Among
the
important considerations, however, as it seems to me, are:
the
nature
of the
injury or loss complained
of
;
the
clarity and identification
of the
issues raised by
the
complaint;
the
nature
of the
documents requested;
the
relevance
of
any protocol or pre-action inquiries; and
the
opportunity which
the
complainant has to make his case without pre-action disclosure."
"The
more diffuse
the
allegations and
the
wider
the
disclosure sought,
the
more sceptical
the
Court is entitled to be".
(b) As to the
reality that applications
of
this sort inevitably involve at least some speculation, Langley J in XL London Markets said:
"It hasof
course to be kept in mind, as Miss Blanchard submitted, that by definition this is a jurisdiction which typically will involve some element
of
speculation, and may not lend itself to precision. It is a powerful argument against an order that
the
applicant can well make a case without disclosure. It follows than an applicant will often, if not usually, be unsure
of the
specific nature
of
any case he may have and indeed one
of the
salutary objectives
of the
rule is to resolve claims without proceedings."
(c) Ms. Grange, who appeared on behalf of the
Applicant, also referred me to Paragraphs 31 and 32
of the
Judgment
of
Langley J in XL London Market. I have borne in mind his comments both in relation to fairness and discretion, although I think that, as I have already indicated, they are further examples
of
a Judge applying
the
general principles to
the
particular factual matters in
the
case before him.
The
application generally
"Unfortunately, and despite repeated requests,the
proposed Claimants' solicitors, Shoosmiths, have failed to disclose any documentation relevant to
the
claim, and as such it has remained impossible
for the
proposed Defendants to consider various issues, namely quantification
of the
claim, and liability".
At the
end
of the
statement, Ms. Maher makes plain
the
basis
of the
application, at Paragraphs 21 to 23. She says:
"21: It isthe
proposed Second Defendant's submission that without
the
requested documentation. it is impossible
for the
proposed Defendants to quantify
the
proposed Claimants' claim. If
the
proposed Defendants are unable to quantify
the
claim, it is also impossible to put forward a sensible offer
of
settlement, if so inclined, with a view to attempting resolution
of the
dispute and saving
the
costs
of
proceedings, possibly to arbitration or to trial.
22:The
total sum claimed in respect
of
reinstatement and decontamination works is substantial. And in order
for the
proposed Defendants' solicitors and their experts to consider
the
validity
of
such claims, supporting documentary evidence to
the
work done,
the
reasons justifying
the
work and
the
cost
of
such work, are essential.
23:The
proposed Defendants deny that this application represents a fishing expedition, as suggested by
the
proposed Claimants' solicitors.
The
documentation requested is simply that which is required to fully evaluate
the
proposed Claimants' claim, and justification
for
decisions made during
the
clean-up procedure.
The
proposed Defendants are simply attempting to be proactive in
the
disposal
of
this case by seeking documentation which they have a right to review at an early stage, rather than at a later stage when proceedings have been issued and costs have increased."
Standard Disclosure
Desirability
Discretion