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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 >> Cockell (t/a Cockell Building Services) v Holton (No 2)  EWHC 1117 (TCC) (22 April 2015)
Cite as:  EWHC 1117 (TCC)
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Rolls Building, 7 Rolls Buildings
London EC4A 1NL
B e f o r e :
| Simon Cockell
(t/a Cockell Building Services)
|- and -
Robert Bourne Esq (instructed by Blythe Liggins) for the Defendant
Hearing dates: 1st April 2015; 21st April 2015
Crown Copyright ©
Mr. Justice Edwards-Stuart:
The witness statement served by the Defendant's solicitor
"Instructions were received by my solicitors from insurers to enable them to produce that pleading on Wednesday, 18 March 2015".
That was confirmed at the hearing. Since that was only two days before the final date for service, that in itself required explanation.
The affidavit sworn by Mr. Barnes
The proposed Amended Defence and Counterclaim
The original case
i) Non-stress graded timber had been used throughout.
ii) Green wood with a high moisture content had been used and every piece would have to be removed and stress tested.
iii) None of the wood had been treated with preservative.
iv) The woodwork was of a poor standard and the joints had excessive notching.
v) The supports for the roof had been taken off non-load bearing walls causing the roof to deform.
vi) Tiles and gutters had deformed as a result of shrinkage and movement.
vii) The roof as constructed did not comply with listed building permission because it did not match the original.
viii) The glazing was defective.
The allegations in relation to the roof
i) "The connections between the principal rafters and the queen posts were poorly executed and displayed opening of the joints. The open joint [sic] demonstrated a combination of cross grain shrinkage of the post combined with inaccurate fabrication."From this it is not clear whether the only defect alleged is the "opening of the joints". The phrase "poorly executed" implies that there were other defects but, if so, they are not identified. Further, no indication is given as to either how widespread was the opening of the joints or as to the extent of the opening in each case (was it, say, less than 1 mm or was it several millimetres?).
ii) "Typically the connection consisted of a post mortice rather than a tenon with 2 wooden dowels 10-12 mm in diameter through the tenon and a pair of horizontal 50 × 10 straps tying the rafter to the truss head strut."This sentence can be parsed in at least three ways. Mr. Bourne said that there should have been a comma after "post mortice", but he was quite unable to tell me what the sentence meant. I pointed out to him that if he could not tell me what it meant, it was hard to see how the Claimant could be expected to understand it. Turning to the specific allegation, so far as I am aware a mortice is not in itself capable of being a joint (although a "post mortice" may be something different): a typical joint used in woodwork consists of a tenon (the tongue at the end of a length of timber) and a mortice, which is a slot or hole (usually rectangular in cross section) into which the tenon slots. If well-made it will be a tight fit, but the tenon is then usually secured in place with wooden dowels. The most obvious reading of the paragraph is that the connection consisted only of a "post mortice", instead of a tenon (and mortice) with dowels through it. However, if this is correct, it does not sit very easily with the allegation in the next paragraph.
iii) "The dowels were too small with insufficient edge distance to possess a calculable shear capacity."Leaving aside the difficulty of reconciling this allegation with the one in the previous sub-paragraph, neither the diameter of the dowels installed nor the allegedly correct diameter is stated and no indication is given as to what is meant by "with insufficient edge distance".
iv) "The straps were not properly bolted with bolts coinciding with timber joints."This is ambiguous. The word "with" may be there to show that what follows is a description of the defect. However, it can also be read as indicating how a strap should properly be bolted - although the latter seems unlikely since inserting bolts at the position of joints is not what one would expect.
v) "The tenons were cut too long causing the joints to open due to shrinkage."The meaning of this is not obvious, although what I anticipate is being said is that the length of the tongue of the tenons was such that the end of the tenon was in contact with the base of the mortice so that if the timber in which the mortice had been cut were to shrink across its grain, a gap would open up at the point where the two pieces of timber should have been in contact. This is probably acceptable as a description of the defect, but as with other allegations, it is not clear whether this occurred in the case of every joint, or a proportion of the joints. (This is now explained in more detail in the new draft.)
vi) The allegation in this sub-paragraph is self-explanatory (although it no longer appears in the new draft).
i) "Truss 1 - T members were adequately sized but the maximum compressive strength in the principal rafter was 1.83N/mm2 which was well below the permissible measure."The "permissible measure" is not stated, which it should have been. In addition, it is not clear to me why the compressive stress of a rafter is of particular importance - I would not expect it to be in compression. However, I accept that this may be self-evident to an appropriate expert.
ii) "Trusses T2 and T3 was [sic] undersized. The Trusses were taking support from a non-load bearing partition and the first floor joists below. Additional support was required. Trusses T2 and T3 required the addition of a support post beneath the bottom chord, to be set immediately inside the line of the existing partition between the corridor and rooms 1.10 and 1.11. The head and base of the posts required a bespoke steel bracket for fixing purposes."This is unacceptable at a most basic level: no dimensions are given either of the trusses as installed or of what they should have been. Further, if the trusses were not properly supported as alleged, the causal relevance of the trusses being undersized is not immediately obvious.
iii) "Truss T4 was supported on the 103 mm internal corridor wall and stairwell between rooms 1.01 and 1.06. The members were adequately sized. The maximum bending strength is 4.2325 N/mm2 in the bottom chord at the offset bearing adjacent to the wall. Maximum compressive strength in principal rafter was 1.85 N/mm2 well below the permissible. The corridor wall was not load-bearing."The relevance of the maximum bending strength is wholly unclear. If it is immaterial it should not have been mentioned. If it is material, the pleading should say why it is material. In relation to the compressive strength of the principal rafter, the same point arises as that in relation to paragraph (1).
iv) "Trusses T5 and T6 - These trusses were overstressed by a factor of 4 or more. Trusses were both undersized. The corridor wall between rooms 1.01 and room 1.03 was non-load bearing. Trusses were taking support via a non-load bearing partition and first floor joists below..."Again, no details are given of the actual dimensions of the trusses or what they should have been.
v) This allegation is clear enough.
The allegations in relation to the chimneys
"The roof [sic] the loss of the roof support left the chimneys exposed to the elements and wind permitting movement in wind and damage internally and externally."
I assume that the first two words "The roof" are surplusage. I think that the pleader is saying that the loss of support was the result of the fire, rather than any subsequent defects in the Claimant's construction of the roof. I will proceed on this basis.
Gutters and rainwater goods
Damage to stone mullions
The electrical work
Driveway and landscaping
Does the Amended Counterclaim (as served) comply with the order?
"… whether the text of the amendment is satisfactory in terms of clarity and particularity."
"7. The Defendant is to re-plead the liability and quantum of his Counterclaim with the particularity to be relied upon at trial by 4 pm on 21st January 2015.
11. The scope and timing of expert evidence will be addressed following provision of full particulars of the Counterclaim as set out above and will be the subject of application to the Court if not agreed."
The submissions made at the adjourned hearing
The appropriate approach
"The first stage is to identify and assess the seriousness and significance of the 'failure to comply with any rule, practice direction or court order' which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate 'all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]'. We shall consider each of these stages in turn identifying how they should be applied in practice. We recognise that hard-pressed first instance judges need a clear exposition of how the provisions of rule 3.9(1) should be given effect. We hope that what follows will avoid the need in future to resort to the earlier authorities."
The seriousness and significance of the breach
The reason why the default occurred
"… addressing (i) when instructions were received from the Defendant's insurers in respect of the counterclaim and why they were not received earlier; and (ii) if, as appears to be the case, no responses were sent to the Claimant's letters in January and February 2015 seeking information about the re-pleading of the counterclaim, why this was the case."
i) The advice that was given to himself and underwriters. However, he says that neither he nor the insurers are prepared to waive privilege in this advice.
ii) There appears to have been a breakdown in communications between the insurers and the loss adjusters: each seemed to think that the other was responsible for providing the relevant information to Mr. Holton's solicitors. This misunderstanding was not resolved until 12 March 2015.
iii) For the past two years the Claimant has spent a lot of time "harassing Mr. Kendall", the forensic accountant retained by Mr. Holton. He then says that he believes that this behaviour by the Claimant "… may have inhibited witnesses and the production of information".
iv) It was a "commercial decision influenced by advice and instructions received and given which is privileged".
v) The unless order which imposed the deadline of 20 March 2015 for service of the Amended Counterclaim.
The third stage
The appropriate course
i) Paragraphs 93 and 94.
ii) The first 10 words of paragraph 95.
iii) Paragraph 96.
i) whether or not the Claimant overcharged the Defendant, together with the circumstances in which the "January Agreement", the "February Agreement" and the March Deed came to be made and/or signed; and
ii) whether or not the Claimant is entitled to recover any further sum in respect of the work carried out having regard, amongst other things, to whether or not the work was defective in any of the respects alleged by the Defendant.
Note 1 It is alleged that they were told that “you have lovely children .... It would be a shame if anything was to happen to them”. [Back] Note 2 Letters of 23 January, 4 and 11 February 2015 from the Claimant’s solicitors chasing service of the new Counterclaim all went unanswered. [Back] Note 3 Interestingly, neither this nor the preceding allegation is included in the new counterclaim. The reference to the “post mortice” has disappeared and it is now alleged that there were no dowels in the joints at all, only screws. [Back] Note 4 This allegation is explained in more detail in the new draft. [Back] Note 5 For example, 2 mm of shrinkage across the grain of timber accommodating a mortice could be significant. However, if a long horizontal timber were to shrink by 2 mm it may not matter. This allegation is now pleaded more fully in the new draft and the reference to “2 mm of shrinkage” no longer appears. [Back] Note 6 These allegations have been both expanded and modified in the new draft and, as a result, are much clearer. [Back] Note 7 The new pleading is clear in identifying the work carried out by the Claimant and what is alleged to have been wrong with it. However, the causation point raised here is not addressed, although the figures claimed for the different aspects of work are reasonably clear. [Back] Note 8 These claims, and that mentioned in the following paragraph, are now much more clearly identified in the new draft. [Back] Note 9 The new draft makes the position rather clearer, but since the sum claimed against this head is about £20,000, it is not a major item. For example, the windows affected are now identified individually. [Back]
Note 1 It is alleged that they were told that “you have lovely children .... It would be a shame if anything was to happen to them”. [Back]
Note 2 Letters of 23 January, 4 and 11 February 2015 from the Claimant’s solicitors chasing service of the new Counterclaim all went unanswered. [Back]
Note 3 Interestingly, neither this nor the preceding allegation is included in the new counterclaim. The reference to the “post mortice” has disappeared and it is now alleged that there were no dowels in the joints at all, only screws. [Back]
Note 4 This allegation is explained in more detail in the new draft. [Back]
Note 5 For example, 2 mm of shrinkage across the grain of timber accommodating a mortice could be significant. However, if a long horizontal timber were to shrink by 2 mm it may not matter. This allegation is now pleaded more fully in the new draft and the reference to “2 mm of shrinkage” no longer appears. [Back]
Note 6 These allegations have been both expanded and modified in the new draft and, as a result, are much clearer. [Back]
Note 7 The new pleading is clear in identifying the work carried out by the Claimant and what is alleged to have been wrong with it. However, the causation point raised here is not addressed, although the figures claimed for the different aspects of work are reasonably clear. [Back]
Note 8 These claims, and that mentioned in the following paragraph, are now much more clearly identified in the new draft. [Back]
Note 9 The new draft makes the position rather clearer, but since the sum claimed against this head is about £20,000, it is not a major item. For example, the windows affected are now identified individually. [Back]