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England and Wales High Court (Technology and Construction Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Fitzroy Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 3365 (TCC) (21 December 2009) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2009/3365.html Cite as: 128 Con LR 103, [2009] EWHC 3365 (TCC), [2010] BLR 165 |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
FITZROY ROBINSON LIMITED |
Claimant |
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- and - |
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![]() ![]() (A company incorporated in Jersey |
Defendant |
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And |
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FITZROY ROBINSON LIMITED |
Claimant |
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- and - |
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(1) GOOD START LIMITED (2) ANGLO SWISS HOLDINGS LIMITED (Both companies incorporated in Jersey) |
Defendants |
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-No 3- |
____________________
Mr Paul Darling QC (instructed by Mishcon de Reya) for the Defendants
Hearing dates: 10th, 14th and 15th December 2009
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Crown Copyright ©
Mr Justice Coulson:
1. INTRODUCTION
(a) I construed the payment terms of the Contracts largely in the way advanced by the Defendants although I also found that they were in breach of contract in failing to pay the instalments as they fell due;
(b) I concluded that FRL had been guilty of fraudulent misrepresentation in failing to disclose to the Defendants, before the Contracts were finalised, their knowledge that Mr Blake was not going to be with FRL for much of the projected period of the project. However, I found that, on the evidence then available, the only demonstrable loss flowing from the misrepresentation was the duplication between Mr Blake and Mr Hobart, his successor, a head of claim now assessed as being worth about £40,000;
(c) I concluded that the allegations against FRL of professional negligence and/or delay were unfounded and I dismissed them in their entirety.
2. THE CONTRACTUAL BASIS OF THE FEE CLAIM
"The Employer shall be entitled to suspend the Services by written notice. Upon any suspension of the Services the Consultant's fee entitlement shall be as provided for in Clause 16.3. If a suspension lasts more than 6 months the Consultant may make a written request for the Services to be resumed and if no such instruction to resume is given within 28 days after such request the engagement of the Consultant under this Agreement shall then terminate"
"In the event of any termination of the Consultant's engagement for any reason (other than those set out in Clause 14.1) or upon any suspension of the Services the Consultant will be entitled to a fair proportion of the Fee for any of the Services properly performed up to and including the date of termination or suspension having regard to the instalment schedule set out in Schedule [2] and the payments already made to the Consultant under this Agreement."
3. THE CORRECT APPROACH TO ASSESSMENT
a) The Time-Based Claim
b) Calculation of The Work Left to Perform
c) Percentage of the Services Performed
4. THE ASSESSMENT OF THE FEES DUE
a) Mentmore
/Stages E and F - the Defendants' case as to completion was, respectively, 35% and 25%, whilst FRL's case was 80% and 60%;
b) Piccadilly/Stages E and F – the Defendants' case as to completion was, respectively, 50% and 10% whilst FRL's case was 85% and 70%.
Project Work Stage Percentage Completion
a) Mentmore
Towers/
Mentmore
Towers limited
b) 90-95 Piccadilly/Anglo Swiss Holdings Limited
c) 100 Piccadilly/Good Start Limited
d) Summary
5. THE EFFECT (IF ANY) OF THE FRAUDULENT MISREPRESENTATION
"I find that the misrepresentation was a material inducement to the Defendants to enter into the Contracts. As a result of the finding of fraudulent misrepresentation, I conclude that, on all the evidence, it is a fair inference that, but for that misrepresentation, these Contracts would not have been executed. Whilst that opens up the possibility of a counterclaim for damages, such a counterclaim would not encompass delay (none being demonstrated as having been caused by the departure of Mr Blake) and would not encompass any disruption/duplication suffered directly by the Defendants or BSH (there being no pleading or evidence of such losses). Thus the only potentially recoverable area of loss is in relation to the disruption to or duplication by FRL arising out of Mr Blake's departure. The precise assessment of the financial consequences of this (if any) will have to await the quantum hearing, because it would, at most, lead to a reduction in the fees otherwise due to FRL. "
6. QUALITY, 'UNDERPERFORMANCE' AND DELAY
7. INTEREST
a) The Issues
(i) What is the nature of the issue of principle between the parties? (sub-paragraph (b) below).
(ii) Under which statutory provision is interest payable? (sub-paragraph (c) below).
(iii) For what period or periods should interest be calculated? (sub-paragraph(d) below) (vi)At what rate is interest payable? (sub-paragraphs (e) and (f) below).
I deal with each of those issues in turn below.
b) The Issue of Principle
c) The Statutory Regime
"Subject to rules of court, in proceedings (whenever instituted) before the High Court for the recovery of a debt or damages there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as rules of court may provide, on all or any part of the debt or damages in respect of which judgment is given…"
d) The Relevant Periods
e) The Relevant Rate
f) Interests of Justice
"31. The section needs to be read in context and in the light of the policy of the Act. As to context it is vital to bear in mind that mistakes in the supplier's invoice can be dealt with by way of remission pursuant to the section 5 powers. Because a wrong invoice may lead to a remission of interest rather than none at all there is no need to read "amount" so strictly as "the true amount, the whole true amount and nothing but the true amount". Nor to confine the second half of the provision to cases where for some reason one cannot calculate the sum due…
38. In summary, as regards the construction of section 4, I would say this: that my construction does not lead to any unfairness. A paying party can withhold payment for sums reasonably in doubt or not yet properly settled. The court will protect him by use of section 5 omission because the uncertainty to that extent was created by the supplier. What he cannot do is pay nothing at all and expect to escape high rates of interest imposed by the Act on what on any view is due."
8. CONCLUSIONS
(i) On the instalments due under each Contract but not paid, from the final date that the instalment should have been paid down to 23.1.08;
(ii) On the sums found due in this Judgment and summarised at paragraphs 33-36 above, from 23.1.08 to 21.12.09.