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Neutral Citation Number: [2005] EWHC 1734 (TCC) |
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IN
THE
HIGH COURT
OF
JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY & CONSTRUCTION COURT
|
|
Royal Courts of Justice Strand London
|
|
|
20th July 2005 |
B e f o r e :
HIS HONOUR JUDGE PETER COULSON Q.C.
____________________
Between:
____________________
Transcribed from Tape by
JL Harpham Ltd Official Court Reporters and Tape Transcribers
55 Queen Street Sheffield , S1 2DX
____________________
APPEARANCES:
For the
Applicant: MISS KATE GRANGE
For the
Respondents: MR SIMON HARGREAVES
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
20th July 2005
HIS HONOUR JUDGE COULSON QC:
Introduction.
- This is an application by
Briggs
& Forrester Electrical Limited, whom I shall call
the
Applicant,
for
pre-action disclosure pursuant to CPR 31.16.
The
original application sought 55 separate categories
of
documents but this has been reduced by
the
Applicant's solicitor's letter
of
5 July 2005 to 32 categories.
The
application arises in this way. In 2003
the
buildings at
Southfield School for Girls
in Kettering were
the
subject
of
extensive electrical works.
The
Applicant was engaged to carry out that work. Because asbestos tiles had to be removed to allow
the
electrical works to be carried out, a specialist removal contractor, B&W Asbestos Removal Specialists Limited, who I shall call "B&W", were engaged to act as
the
Applicant's sub-contractors.
The
work was overseen by an architect, Peter Haddon & Partners.
- There is no dispute on
the
documents that I have seen that this work
of
tile removal was badly carried out. As a result,
the
Respondents to this application (who are
the
prospective Claimants in any litigation, namely
the governors of the school
and
the
relevant education authority) allege that there was extensive asbestos contamination
of the school
buildings, which had to be evacuated in consequence. Thereafter extensive remedial works were carried out.
The
Protocol Procedure
- On 15 October 2004
the
Respondents sent to
the
Architect,
the
Applicant and B&W a detailed letter
of
claim. This was sent in accordance with
the
Construction and Engineering pre-action protocol.
The
letter
of
claim, in a form similar to a pleading, set out a detailed claim
for
about £5 million damages arising from
the
asbestos contamination.
The
Applicant responded in detail on 4 February 2005.
The
response included an admission
of
liability couched in these terms:
"6. Since
the
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".
The
letter also complained
of the
difficulties in making an offer to
the school
and
the
Council due to their alleged failure "... to quantify
the
losses claimed by reason
of
B&F's breaches
of
contract, as opposed to
the
losses brought about by
the
state
of the
building".
- On
the
same day,
the
Applicant's solicitors wrote a separate letter enclosing a document entitled "Pre-action disclosure required by Second Defendant from Claimant". This list was essentially
the
same as
the
list that was attached to
the
Applicant's original application
for
pre-action disclosure dated 12 April 2005, and it also forms
the
basis
of the
reduced list upon which
the
application was made before me.
The
Respondents replied to
the
letter
of
response on 15 June. They dealt, amongst other things, with
the
suggestion made by
the
Applicant that
the school
was already
the
subject
of
contamination before their work commenced; and they also addressed
the
Applicant's second main point, namely that
the
remedial work related to
the
state
of the
building rather than
the
breaches
of
contract. In particular, at Paragraph 13
of
that response,
the
Respondents said:
"It is not accepted that
the 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".
The
next stage in
the
Construction and Engineering protocol procedure would be a pre-action meeting. Indeed
the
Construction and Engineering protocol is
the
only one
of
all
the
CPR protocols which requires such a meeting. If
the
procedure outlined in
the
protocol and
the
subsequent meeting fail to bring about a resolution
of the
differences between
the
parties, then they are required by Paragraph 5.5
of the
protocol to use their best endeavours to agree various matters. At sub-paragraph (ii) one
of
those matters is "
the
extent
of
disclosure
of
documents with a view to saving costs". That is, as far as I am aware,
the
only specific reference to disclosure in
the
Construction and Engineering protocol. In relation to this case I am told that, whilst
of
course,
the
letter
of
claim and
the
response letter stages have both been completed, there has as yet been no pre-action meeting.
Relevant principles
- Before turning to
the
detail
of the
application, it is necessary to set out some
of the
relevant principles. I deal first with CPR 31.16.
The
relevant parts provide as follows:
"1. This rule applies when an application is made to
the
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 fairly
of the
anticipated proceedings, (ii) assist
the
dispute to be resolved without proceedings, or (iii) save costs".
The
principal authority dealing with this Rule is
the
decision
of the
Court
of
Appeal in Black & Others -
v
- Sumitomo Corporation [2002] 1 WLR 1562. In his Judgment, Rix LJ went through
the
rule and explained that an applicant had broadly to do two things: first, to demonstrate that each
of the
four elements
of
31.16 (3) were in place; secondly, to persuade
the
Court that it was appropriate in all
the
circumstances
for the
Court to exercise its discretion in favour
of
granting pre-action disclosure.
The
four requirements
of
Rule 31.16(3) in this case, therefore are: (a) that
the
Applicant was likely to be a party to subsequent proceedings; (b) that
the
Respondents were likely to be a party to subsequent proceedings; (c) that
the
documents sought would be disclosable in proceedings by way
of
standard disclosure, and (d) that pre-action disclosure was desirable.
- As to
the
standard disclosure point at (c), Rix LJ said:
"76: In general, however, it should in my judgment be remembered that
the
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 whether
the
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."
- As to
the
question
of the
desirability
of
ordering pre-action disclosure at (d), Rix LJ said:
"81: It is plain not only that
the
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.
82
Of
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."
- Finally as to discretion, Rix LJ, at Paragraph 88 said:
"… discretion is not confined and will depend on all
the
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."
- A number
of
other cases were cited to me, including
the
decision
of
Langley J in XL London Market -
v
- Zenith Syndicate Management Limited [2004] EWHC 1182 Comm;
the
decision
of
Lawrence Collins J in Meretz Investments -
v
- First Penthouse Limited [2003] EWHC 2324 (Chancery), and
the
decision
of
Morison J in Snowstar Shipping -
v
- Graig Shipping plc [2003] EWHC 1367 Comm Save
for the
particular points noted at Paragraph 17 below, I regard those cases as examples
of the
particular application
of the
general principles outlined by Rix LJ in Black and it is therefore unnecessary
for
me to identify any particular parts
of
those Judgments in any detail.
- Specific points from those authorities which may have some relevance to
the
issues before me are: (a) As to
the
need
for
precision in applications
of
this kind, Morison J in Snowstar said:
"
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 has
of
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.
- It will be noted that none
of the
authorities to which I have made reference deals with
the
situation where
the
application under CPR 31.16 is made during a period when
the
parties are actively complying with
the
requirements
of
a pre-action protocol. I have already referred to
the
general reference by Rix LJ to pre-action protocols, and their relevance to discretion, in
the
Black case. Rix LJ also referred to protocols in a general way in Bermuda International . In his Judgment in that case, Rix LJ said, by reference to
the
Engineering and Construction protocol. that under Paragraph 5.5( ii), "
The
question
of
disclosure is met with at a rather late stage in
the
relevant protocol". I have previously referred to Paragraph 5.5(ii). Unlike other protocols,
the
Engineering and Construction protocol does not provide
for
pre-action disclosure during
the
protocol period. Paragraph 5.5(ii) merely encourages parties who have utilised
the
protocol but not settled their differences to use their knowledge to try and agree
the
parameters
of
disclosure in any forthcoming litigation.
- Both counsel agreed that
the
fact that there was ongoing protocol compliance in this case was a factor which I could take into account in considering
the
exercise
of
my discretion under Rule 31.16. I agree with that proposition. It seems to me to be entirely in accordance with Rix LJ's comment at Paragraph 88
of
his Judgment in Black. I therefore do that exercise at Paragraph 47 below.
The
application generally
- Ms. Grange told me that
the
documents that were sought fell into two broad categories.
The
first category comprised documents concerned with causation, which was relevant because
the
Applicant was going to argue that
the school
was polluted by asbestos prior to
the
commencement
of the
Applicant's work on site. In other words,
the
Applicant was going to run a positive case that some, perhaps a good deal,
of the
asbestos contamination about which
the school
and
the
council now complain was already in existence, and therefore nothing to do with
the
Applicant.
The
second category
of
documents, also said to be relevant to causation, comprised documents relating to
the
remedial work put in hand after
the
problems had been discovered. I was told that
the
Applicant was going to argue, amongst other things, that much
of the
work carried out related to
the
removal
of
pre-existing asbestos which therefore bore no relation to
the
breaches
of
contract on
the
part
of the
Applicant.
- Whilst, as I have made clear, these two points feature in
the
Applicant's letter
of
response dated 4 February, and were again referred to in Ms. Grange's helpful skeleton argument, I was still a little surprised that
the
application was put in that way. My surprise stemmed from
the
fact that that is emphatically not how it is put in
the
statement made in support
of the
application by Nicola Ann Maher. There is no mention in that statement
of the
pre-existing contamination, nor is there a reference to
the
suggestion that
the
remedial work, on which
the
damages claim is based, bore no relation to
the
breaches
of
contract alleged. In my judgment
the
statement is very specific as to
the
reasons why, at that stage,
the
55 categories
of
documents were said to be relevant and should be disclosed. At Paragraph 9, Ms. Maher states:
"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 is
the
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."
- There can be little doubt that many
of the
categories
of
documents sought in
the
application are not, in truth, required
for the
reasons set out in that statement to which I have just referred (namely, to allow
the
Applicant to understand quantum) but
for the
other two reasons clearly and helpful outlined by Ms. Grange, concerned with aspects
of
causation. Ms. Grange realistically accepted that that was
the
case. Whilst I do not accept Mr. Hargreaves' submission that on that basis alone I should dismiss
the
application,
the
absence
of the
evidential material that I would have expected to find in
the
statement does create some difficulties
for the
Applicant. In particular, as I put to Ms. Grange in
the
course
of
argument, it is difficult
for
me to conclude that some
of the
categories sought would be disclosable pursuant to standard disclosure - which is
the
point at CPR 31.16(3)(c) - when
the
reasons in support
of
such a contention are not set out in
the
evidence. Similarly,
the
absence
of
evidence does not assist me in concluding whether or not pre-action disclosure is desirable, which is Rule 31.16(3)(d).
- No points arise under 31.16(3)(a) or (b). Both parties before me are likely to be parties to TCC proceedings. Accordingly, mindful
of the
general point that I have made in Paragraph 22, I now go on to consider each category
of
documents sought by reference to CPR rule 31.16(3)(c), namely whether on
the
material before me these categories would be disclosable by way
of
standard disclosure. I then go on, at Paragraphs 39 to 44, to consider
the
point at rule 31.16(3)(d), and then, at Paragraphs 45 to 57, to set out my conclusions as to
the
exercise
of
my discretion.
Standard Disclosure
- Part 1 Category A is
the Southfield School
Full Asbestos Register. This is referred to in
the
letter
of
claim. Despite
the
Applicant's admission
of
liability, I consider on
the
balance
of
probabilities that this document would be disclosable by way
of
standard disclosure.
- Part 1 Category B is described as "
Southfield School
's Maintenance and Capital Works Programmes since its construction in
the
1960s, i.e. previous records
of
service alterations, installing IT cabling and other alterations, refurbishments and repairs involving
the
asbestos ceiling tiles, together with any documentation evidencing how
the
asbestos regulations were dealt with". I am in no doubt at all that that category is far too wide. On
the
material I have, I do not believe
the
Applicant would be entitled to such documents by way
of
standard disclosure. Ms. Grange's clever attempt to limit this category
of
documents to those just involving ceiling tiles is not, I think, as a matter
of
construction
of
this item, a fair reading. But even if she were right, I would still be
of the
view that
the
category was much too wide to be susceptible to standard disclosure.
- Part 1 Category C is said to be "Documents evidencing
the
clearance testing regime adopted in respect
of the
operations dealt with by
the
previous items", and then various inclusive items are identified. Again, really
for the
same reasons as in Paragraph 25 above, I must conclude that this category is too wide
for
me to decide that it would be disclosable by way
of
standard disclosure. Obviously, in relation to both those categories,
the
remarks made in
the
cases which I have previously cited about
the
dangers inherent in casting one's pre-action disclosure net too wide are directly applicable.
- Part 1 Categories D and E relate to documentation evidencing particular air testing from 1999. These categories are referred to in
the
letter
of
reply from
the
Respondents dated
the
15th June 2005. On that basis I would conclude on
the
balance
of
probabilities that they would be disclosable by way
of
standard disclosure.
- Part 1 Category F is
the
architect's appointment document. That is probably disclosable by way
of
standard disclosure, even though its relevance to
the
remaining issues between
the
Respondents on
the
one hand, and
the
Applicant on
the
other, is not entirely easy to discern.
- Part 1 Category G is an alleged letter from somebody at
the
council to
the school
informing them
of
asbestos management. Ms. Grange in her submissions said that this was a letter that had been referred to at a meeting. There was no evidence about this letter or indeed that meeting. This is perhaps a small example
of the
difficulties created by what I see as
the
lack
of
evidence behind
the
Applicant's real reasons
for
their application. On that basis I cannot conclude that
the
letter exists, much less that it would be disclosable by way
of
standard disclosure.
- Part 1 Categories H and I are said respectively to be "All correspondence between
the school
and Peter Haddon & Partners relating to
the
tender/quotation", and "All correspondence between
the school
and Northamptonshire County Council relating to
the
tender and
the
existence
of
asbestos at
the school
". It follows from what I have said previously that I regard those categories as being too widely drawn to allow me to conclude that they would be disclosable by way
of
standard disclosure. I should make
the
point that I have been told that
the
architects, Peter Haddon and Partners have been engaged by
the school for
a number
of
years, and therefore
the
potential scale
of the
documentation sought under these categories might be very large.
- Part 2 Category A is
the
video footage taken by Ensafe, showing alleged areas
of
contamination. This is expressly referred to in
the
Ensafe report, attached to
the
letter
of
claim. It is therefore plainly disclosable by way
of
standard disclosure.
- Part 2 Category B are
the
full laboratory test reports in support
of the
test samples relied on by Nsafe in their report
of the
12th September 2003. That report was served with
the
letter
of
claim. Paragraph 3.6
of the
report describes
the
information contained within
the
report as "
The
full details
of the
investigation sampling results". Ms. Grange says
the
Applicant would like to see
the
'raw documentation', as she put it. But it is unclear why or how that goes to
the
issues between
the
parties. I am not at
the
moment persuaded that that material would be disclosable by way
of
standard disclosure.
- Part 2 Category C is all correspondence between
the school
and Peter Haddon and Partners relating to
the
existence
of
asbestos tiles. And Category D is all correspondence between
the school
and Peter Haddon and Partners relating to
the
removal
of the
asbestos tiles. Ms. Grange confirmed to me that this was intended to relate to all
the
correspondence, both before and after
the
contract with
the
Applicant, which
for the
reasons that I have given might stretch back years. Again it follows from what I have said above that I consider that such categories are too widely drawn, and therefore I am unable to conclude that they would be disclosable by way
of
standard disclosure.
- Much
of
Part 3 is concerned with
the
documents relating to quantum. As such, many
of the
categories are plainly disclosable by way
of
standard disclosure. This would include
the
documents at Categories A, B, C, E, F, H and N. Category J, which is
the
method statement, and Category O, which is
the
specification, are in my judgment also disclosable by way
of
standard disclosure. Indeed, it seems to me that they would be documents that
the
Respondents would be relying on in any subsequent litigation. I accept Mr. Hargreaves' submission that Categories D, G and I are part
of the
almost traditional fishing expedition to see if
the
remedial works overran, and it has therefore not been demonstrated to me that those documents would be disclosable by way
of
standard disclosure.
- Part 3 Category K is said to be "Documentation evidencing
the
cleaning works carried out, including identification
of the
results
of
any previous tests". I raised with Ms. Grange
the
question
of
what precisely was meant by
the
"cleaning works", since,
for the
reasons that I have already given,
the
documentation concerning
the
remedial works being carried out was plainly disclosable, and it was not clear what this category added. She was not really able to help. It seems to me that in
the
light
of
that uncertainty,
the
category as drawn is too wide, and it has again not been demonstrated what these documents are, or how they would be disclosable by way
of
standard disclosure.
- Part 3 Categories L and M are concerned with documentation "Evidencing
the
extent
of the
ceiling construction" to Blocks A and B, and Ensafe's "Justification
for
their proposals to remove all non-asbestos ceilings and metal grids". In addition there is also sought Ensafe's proposals, and justification
for
those proposals as set out in
the
method statement. These categories may be disclosable by way
of
standard disclosure, but it is not possible
for
me to say on
the
material that I have that it has been demonstrated, even on
the
balance
of
probabilities, that they will be. I have already said that I think that
the
method statement is a document which should be disclosed, but I have to try and ensure that there is a limit to
the
extent
of
any pre-action disclosure process. It seems to me, on
the
material that I have, that Categories L and M go beyond that limit, and that it is not clear at all that they would be disclosable by way
of
standard disclosure.
- Finally Part 3 Categories P and Q are described as two categories
of
documents evidencing (in one case) which socket outlets were cleaned and which tests were undertaken prior to carrying out such cleaning, and (in
the
other case) which cables were cleaned and what tests were undertaken prior to carrying out such cleaning. Ms. Grange said, realistically, that these were minor matters. It is difficult to see how and why these documents might be disclosable on standard disclosure. Again there may be some particular issue or point
of
evidence which makes these documents disclosable, but if so, that is not contained in
the
material before me. I therefore conclude, at this stage at any rate, that those documents would not be disclosable by way
of
standard disclosure.
- In summary, therefore,
the
categories
of
documents which I have found on
the
material before me to be disclosable by way
of
standard disclosure are Part 1 Categories A, D. E, F; Part 2 Category A, and Part 3 Categories A, B, C, E, F, H, J, N and O. In general terms, I found that these categories would be disclosable by way
of
standard disclosure either because they are expressly referred to in
the
letter
of
claim,
the
letter
of
response and
the
letter
of
reply, which are
the
equivalent
of the
pleadings at
the
protocol stage; or because they go to
the
quantification
of the
claim which
the
Applicant has to meet. I have rejected
the
categories
of
documents which cannot be shown on
the
present material to be relevant to
the
issues, and in particular those categories
of
documents which are much too wide to permit me to conclude that such documents would be disclosable by way
of
standard disclosure.
Desirability
- I now turn to consider
the
question as to whether it would be desirable to order pre-action disclosure
of the
documents identified in Paragraph 38. Ms. Grange urges me that I should allow such disclosure, because that would narrow
the
issues, cut down on expert evidence and accelerate
the
timetable that would hopefully lead to offers and settlement.
- Mr. Hargreaves says that
the
pre-action disclosure
of
documents will make no difference because they would not ultimately assist
the
Applicant in demonstrating either
of the
causation points, which I have outlined above. He submits that even if
the
Applicant could show that a particular part
of the school
was not affected by their works, but was later
the
subject
of
remedial works, it would make no difference because
of the
clear evidence that
the
asbestos particles which escaped as a result
of the
Applicant's breaches
of
contract were trafficked round
the school
, obliterating their precise source. He also says that there has been an offer, so
the
suggestion that these documents have prevented an offer is plainly incorrect.
- I do not accept Mr. Hargreaves' submission that I can or should dismiss
the
chance that, properly formulated,
the
Applicant's points might succeed. Neither do I think that I can speculate too far as to what might happen in any future litigation. On
the
other hand, I do accept his point that there does appear to have been an assumption on
the
part
of the
Applicant that if they got over
the
hurdle at r31.16(3)(c), they would in some way automatically clear
the
hurdle at r31.16(3)(d), because
of the
general references to
the
narrowing
of
issues and
the
like.
- It is difficult, on
the
material which I have, to conclude that
the
documents at Part 1 Categories A, D, E and F, or Part 2 Category A, would
of
themselves make any or any real difference to
the
overall commercial position between
the
parties. Again, I am afraid that
the
lack
of
specific evidence on this point is a handicap
for the
Applicant. Given that an offer has been made, and a detailed response has been put in to
the
letter
of
claim, I do not consider that
the
Applicant has satisfied me on Rule 31.16(d) in respect
of
those categories
of
documents. They may lead to a costs saving and
the
swift disposition
of the
issues. Equally, so it seems to me, they may make no difference at all.
The
documents in Part 3, A, B, C, E, F, H, J, N and O are
of
a different kind. They are documents highly relevant to quantum, and I shall refer to them hereafter as "
the
quantum documents". Their disclosure plainly would satisfy both
the
grounds at r31.16(3)(d)(ii) and r31.16(3)(d)(iii).
The
application is therefore made out on
the
ground 31.16(3)(d) in respect
of
those quantum documents.
For the
avoidance
of
doubt, I should say that if I was wrong and there were other categories
of
documents not set out in Paragraph 38 above, but which were disclosable by way
of
standard disclosure, I am entirely satisfied that
the
Applicant has not demonstrated that it would be desirable
for
them to be
the
subject
of
a pre-action disclosure application in any event. Just taking one example, I could not possibly conclude that
the
disclosure
of
all
Southfield School
's Maintenance and Capital Works Programmes since its construction in
the
1960's would save costs or lead to an early settlement.
Discretion
- It seems to me that there are a variety
of
general factors relevant to my discretion. In
the
Applicant's favour I accept
the
following: (a) This is a potentially large claim which
the
Applicant is striving to resolve before litigation is commenced; (b)
The
Applicant has taken a clearly proactive stance throughout
the
protocol stage; (c)
The
documents which
the
Applicant seeks are within
the
possession and control
of the school
and
the
council.
- In favour
of the
Respondents, there are
the
following points: (a) A lot
of the
quantum documents have been either disclosed or offered
for
inspection, and (b)
The
costs incurred in
the
sort
of
wide pre-action disclosure exercise
of the
kind required by
the
Applicant, would be extensive.
- As I have already indicated, I am also conscious
of the
ongoing protocol procedure. As I have said, that has not yet reached
the
pre-action meeting stage. There is nothing in
the
protocol that requires large-scale disclosure at any stage during
the
protocol. I accept
the
point made by Mr. Hargreaves, by reference to
the
introduction to
the
Pre-Action Protocols in
the
CPR, that
the
requirement there is
of
disclosure
of
"Key documents". In addition, I am aware that prospective claimants complain that compliance with
the
Engineering and Construction protocol can be an expensive exercise which 'front-loads'
the
costs to their detriment. There would be concern in
the
construction and
the
related insurance industry if it was thought that a prospective claimant embarking on
the
Engineering and Construction protocol procedure was routinely obliged to discharge
the
sort
of
onerous disclosure obligations contended
for
by
the
Applicant here.
- Considering all
the
circumstances set out above, and with
the
exception
of the
quantum documents (paragraph 43 above), with which I deal separately below, I do not consider that it would be appropriate to exercise my discretion in favour
of the
Applicant in respect
of
any
of the
categories
of
documents sought.
The
categories are too wide and too peripheral to
the
real issues
for
me to conclude otherwise on
the
material that I have.
For the
avoidance
of
doubt, that finding applies to all
the
categories
of
documents sought, not just those which survived
the
application
of
rule 31.16(3)(c).
- As to
the
quantum documents, which I have expressly excepted from that ruling, I am aware that
the
Respondents have offered many
of
these documents - although not, I think, all -
for
inspection. Some were inspected in January, and others were offered later. It is perhaps appropriate
for
me to set out as briefly as possible
the
relevant recent sequence.
- On
the
15th June
the
solicitors acting
for the
Respondents informed
the
Applicant's solicitors that they had received a significant quantity
of
documents relevant to quantum which were being reviewed. They go on to say: "We suggest that
the
next stage would be
for the
quantity surveyors retained by our respective clients to meet
for the
purpose
of
auditing
the
claim, by which we mean that your client, whilst reserving its position with regard to arguments as to
the
proper scope
of the
claim, can satisfy itself that all
of the
costs that are being claimed by our client have actually been incurred in connection with
the
decontamination and
the
refurbishment
of the school
. It will therefore not be a function
of the
meeting between quantity surveyors
for
there to be a debate,
for
example, with regard to issues about
the
condition
of the school
prior to
the
contract with your client."
The
response to that was dated 24th June 2005. It said: "In our view and that
of
our expert, such a meeting would not be
of
value to us unless we had already received your disclosure documentation. Indeed, to proceed with such a meeting on
the
basis that your own expert had access to all
the
documents but ours had not, would be inequitable in our view".
- On
the
8th July
the
response to that from
the
solicitors acting
for the
Respondents referred to
the
inspection in January and accepted that
the
Applicant's solicitors were entitled to inspect
the
latest tranche
of
quantum documents. They reiterated
the
suggestion
of
a meeting between quantity surveyors, although they again said that that should be "Purely
for the
purpose
of
auditing
the
claim".
The
letter went on to offer copies
of
documents subject to receiving an undertaking as to
the
payment
of the
costs
of
photocopying, and what was called "a suitably-worded collateral purpose undertaking".
The
correspondence on this topic ends on
the
13th July, when
the
Applicant's solicitor wrote to say: "We now turn to
the
documents that you recently received and which we have not yet inspected. We are grateful to you
for
your confirmation that you will provide us with access
of the
same, together with copies. However, before we can determine whether or not such disclosure satisfies our pre-action request, we require a List
of
Documents or other indication
of the
nature
of the
documents that you are prepared to disclose".
- Mr. Hargreaves complains that
the
Applicant's approach was unco-operative and unduly formal with its reference to
the
provision
of
a List
of
Documents. There is some force in that criticism. On
the
other hand it was, at least with hindsight, unwise
of the
Respondents' solicitors to link
the
provision
of
such documents to
the
expert quantity surveyors' meeting and
the
so-called audit procedure.
- In my judgment, what should have happened was that
the
Respondents, during
the
months since
the
letter
of
claim, should have produced, or have had produced on their behalf, a schedule, or possibly a series
of
schedules, identifying
the
full quantum claimed under each head
of
claim, and demonstrating clearly how each headline figure had been made up.
The
quantum in
the
letter
of
claim is just a collection
of
bald figures, many
of
which are estimates, and there is no further schedule or explanatory document which has been provided.
- Accordingly, taking all those points into consideration, and in
the
absence
of
what I would regard as a helpful quantum schedule, I exercise my discretion in favour
of the
Applicant in respect
of the
quantum documents. Whilst I acknowledge that
the
offer by
the
Respondents' solicitors to provide documents may well be relevant to other matters, such as costs, it is in all
the
circumstances appropriate
for
me formally to require those documents to be produced pursuant to this application. I am also aware that this result has
the
effect, which I do not regard as unreasonable,
of
my having accepted
the
basis
of the
application as set out in
the
Applicant's own witness statement, and rejected
the
basis
of the
application that was put forward subsequently.
- Accordingly,
the
application is dismissed, save in respect
of the
quantum documents at Part 3 Categories A, B, C, E, F, H, J, N and O.
The
application in respect
of
those documents is allowed. I will hear submissions as to
the
appropriate form
of the order to be drawn up in consequence.
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