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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Countryside Properties v MDS Civil [2009] EWHC 3418 (TCC) (11 December 2009) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2009/3418.html Cite as: [2009] EWHC 3418 (TCC) |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
B e f o r e :
____________________
COUNTRYSIDE PROPERTIES | Claimant | |
- and - | ||
MDS CIVIL | Defendant |
____________________
William Webb (instructed by Birketts LLP) appeared on behalf of the Defendant.
____________________
Crown Copyright ©
MR. JUSTICE AKENHEAD:
Introduction
The Factual Background
The Pleadings and the Proposed Amendments
"The notes to that drawing provided that the minimum foundation depths were to be 1,000 mms measured from the lower of the existing or proposed ground level and to be within the London Clay foundations within the vicinity of existing... as indicated on plan."
It is pleaded at Paragraph 11.3 that the drawing identified foundation depths at various locations in relation to the properties significantly in excess of 1,000 mms.
"There were the following express and/or implied terms as a matter of law and/or to give business efficacy thereto of the contract -
16.1 that the Defendant would carry out the works in accordance with their terms and conditions, and/or
16.2 that the Defendant would carry out the works in accordance with the drawings."
Paragraph 16.3 indicates that it was a term of the contract that the defendant would carry out works in accordance with the trade specification. Paragraph 16.4 pleads that by one of the Claimant's terms and conditions various particular terms were incorporated, including this at Clause 2.1:
"The subcontractor will carry out and complete the works referred to and shown upon or described by the contract documents and in accordance therewith the subcontractor shall use materials and workmanship of the quality and standard specified in the contract documents or, where none is specified, those which are in accordance with any appropriate British Standard or code of practice or, in any event, those which are to the reasonable satisfaction of the developer. Without prejudice to the generality of the foregoing, the subcontractor warrants that he was exercised or will exercise reasonable skill, care and diligence and intention being... carrying out and completing the works. The subcontractor further warrants that the works or that part of the works for the design of which the subcontractor was responsible be fit for their or its intended purposes."
"Insofar as it is necessary that the Defendant would undertake the works with reasonable skill and care and/or in a good and workmanlike manner."
Paragraph 16.6 reads:
"That the Defendant would undertake the works using goods and materials that were of good quality and fit for the purpose for which they were intended."
"16.7 That the Defendant would carry out and complete the works such as they were fit for the purpose for which they were intended.
16.8 That the Defendant would warn the first-named Claimant if and to the extent that the works and/or instruction were or might result in defects and/or serious and/or dangerous defects in the property if and to the extent that the Defendant was or should have been aware of the same."
"London Clay is a highly shrinkable material subject to volume change by the extraction or addition of moisture. Such volume change can be caused by tree root action in particular.
18.1 The roots growing from trees extract the moisture from the clay causing it to shrink, and if the roots extend beneath property foundations, subsidence may occur.
18.2 If the trees are removed, dried-out clay will slowly recover its natural moisture content, swelling in the process. Heave may thus occur."
This relates back to the generally accepted knowledge about heave and subsidence on London Clay.
"[The Defendant] Failed to construct the foundations to the depth required by the drawings and/or the contract and/or applicable NHBC guidelines. For example, and without prejudice to the generality of the foregoing -
30.14.1 As regards the front elevation near the southeast corner of number 7, the Defendant constructed the foundations to a depth of 2 metres. The drawings specified a minimum depth of 2.5 metres.
30.14.2 As regards the west elevation near the northwest corner of number 7, the Defendant constructed the foundations to a depth of 2.3 metres. The drawings specified a depth of 3 metres.
30.14.3 As regards the southwest corner of number 9, the Defendant constructed the foundations to a depth of 2.2 metres. The drawings specified a depth of 2.7 metres."
"The Defendant had constructed the foundations or some of them such as they were not straight and they were wider at the bottom than at the top and/or were of greater widths than required by the contract.
"(i) any damage which has occurred to the properties will have occurred even if no breaches had occurred due to the inadequate depth of foundation designed by and/or instructed by the Claimant;
(ii) alternatively, the inadequate design of the properties was the sole effective cause of any damage which has occurred, and in particular the decision to use concrete trench foundations instead of piled foundations
"... failed to carry out or instruct the Defendant to carry out adequate investigations for tree roots at founding level."
"7.2.2. [The ITT included inter-alia] Certain drawings including Drawing N00011/E/1010, which identified the minimum depths to which the foundations… were to be instructed and specified where Claymaster was to be applied to the foundations and (by Note 7) that "all foundation depths are subject to final inspection on site. If active root growth is apparent at founding level then foundation must be deepened to extend 300 mm below any active roots". A copy of the drawing is attached hereto at Appendix 2.
11.1 The drawings included Drawing N00011/1/124…That drawing identified the locations at which Claymaster was to be applied to the foundations, and the minimum depths to the foundations were to be constructed…
11.2 The Notes to the drawing provided inter alia:
"2. Minimum foundation depths to be 1000 mm…"
11.4 The Drawings also included Drawing N000/E/120 entitled 'Foundation Key Plan'. A copy is attached hereto at Appendix 3B. The Foundation Depth Specification and Notes to that drawing provided inter alia as follows:
"Zone 1 Minimum foundation depth to be 1000 mm measured from the lower of existing or proposed ground level and to bear within the undisturbed London Clay. Foundation depths to be increased in vicinity of new/existing tree planting in accordance with drawings N00011/E121-129
Note where soft clays are encountered at formation level the foundation depth must be increased to fully penetrate these deposits and bear upon firm strata
Zone 1 Sections and details refer to drawing N00011/E/130
…
7. All foundation depths are subject to final inspection on site. If active root growth is apparent at founding level then foundation must be deepened to extend 300 mm below any active roots.
…
9. This drawing must be read in conjunction with the ground investigation report number 7865 dated October 2000 carried out by RSA Geotechnics Ltd"
16.2A Without prejudice to the generality of the foregoing, [there were terms] that
16.2A.1 The Defendant would construct the foundations to the minimum depths and specified in the Drawings; and/or
16.2A.2 The Defendant would inspect at founding level and if active root growth was or should have been apparent at founding level then the Defendant would deepen the foundations to extend the 300 mm below any active roots…"
So, essentially what is added are amendments which seek to assert that the Defendant had an obligation to construct the foundations at least to the depths specified but as necessary to go further down, particularly where they were tree roots, no undisturbed London Clay or where soft clays were encountered.
"30.11A [The defendant] Failed to construct the foundations such that they were sufficiently deep. Without prejudice to the generality of the foregoing, the Defendant:
30.11.A1 Failed to undertake any or any adequate inspection at founding level; and/or
30.11A2 Failed to note and/or advise as the presence of roots and/or active root growth; and/or
31.11.A3 Failed to deepen the foundations to extend 300 mm below active roots."
In respect of Bridge End Lane, the following complaints were added:
"30.14.4 [The Defendant] failed to construct the foundations for the depths required by the Drawings and/or the Contract and/or the applicable NHBC Guidelines. For example (and without prejudice to the generality of the foregoing):
…
30.14.4 Failed to undertake any or any adequate inspection at founding level; and/or
30.14.5 Failed to note and/or advise as the presence of roots and/or active root growth; and/or
30.14.6 Failed to deepen the foundations to extend 300 mm below active roots…
30.15A Founded the rear left corner of No. 7 Bridge End Lane on gravely [sic] sand not undisturbed London Clay and such that the property was not founded on a uniform bearing strata [sic] which caused and/or contributed to and/or risked causing or contributing to differential movement across the property"
"Had the Defendant properly inspected the founding level of the foundations when excavation met the minimum depth and/or reported roots and/or active root growth, consideration could have been given to alternative design and/or methodology."
The Law
"35 New claims in pending actions: rules of court.
(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced
(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and
(b) in the case of any other new claim, on the same date as the original action.
(2) In this section a new claim means any claim by way of set-off or counterclaim and any claim involving either —
(a) the addition or substitution of a new cause of action; or...
(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1) (b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim….
(4) Rules of court may provide for allowing a new claim to which subsection(3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
(5) The conditions referred to in subsection (4) above are the following —
(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action.."
"The court may allow an amendment whose effect will be to add or substitute a new claim but only if the new claim arises out of the same or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings"
"A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person".
"Where there are found in completed buildings serious defects of the type here under review the facts relating to design, execution and superintendence are inextricably entangled until such time as the court succeeds in elucidating the position through evidence. The design has inevitably to be closely examined even if the only claim relates to superintendence, and all the more so if the designs are, as is further alleged here, experimental or such as need amplification in the construction progresses. The architect is under a continuing duty to check that his design will work in practice and to correct any errors as they emerge. It savours of the ridiculous for the architect to be able to say, as it was here suggested to him that he could say: 'true, my design was faulty, but, of course, I saw to it that the contractors followed it faithfully' and be enabled on that ground to succeed in the action.
The same, or substantially the same set of facts, falls to be investigated in relation to the design claim and the superintendence claim. The plans and specifications and ancillary documents are relevant to the superintendence claim as well as to the designer claim: hence the inability of the defendant to allege prejudice with regard to the preparation of his defence if this appeal is allowed. Accordingly, the "new cause of action" falls within the ambit of RSC Ord. 20 r. 5(5), and it is one which the court has jurisdiction to permit to be pursued".
Cross LJ added:
"It is no objection to amendment under Ord. 20, r. (5) that some of the facts out of which the new cause of action arises are peculiar to it, and some of the facts out of which the old cause of action arises are peculiar to it. It is enough if the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action. For the reasons given by Sachs L.J. I think that this is the case here and that there was power to allow the amendment in question under Ord. 20, r. 5(5)"
"From this review I derive five propositions which are relevant to the present case:
(i) If the claimant asserts a duty which was not previously pleaded and alleges a breach of such duty, this usually amounts to a new claim.
(ii) If the claimant alleges a different breach of some previously pleaded duty, it will be a question of fact and degree whether that constitutes a new claim.
(iii) In the case of a construction project, if the claimant alleges breach of a previously pleaded duty causing damage to a different element of the building, that will generally amount to a new claim.
(iv)When considering whether one claim arises out of "substantially the same facts" as a previous claim, it is necessary to examine the extent to which the facts of the first claim and the facts of the second claim overlap, and the extent to which they diverge. It will then be a matter of impression whether the test is satisfied.
(v) When carrying out the analysis required by section 35 of the 1980 Act and CPR r. 17.4, the judge must treat as part of the original claim those amendments which he has already decided to allow."
"39. In Goode v Martin [2002] 1 WLR 1828 the Court of Appeal held that, in the light of the ECHR, CPR 17.4 (2) should be interpreted as though it permitted an amendment whose effect would be to add or substitute a new claim where the new claim arises out of the same facts or substantially the same facts as are already in issue on an existing claim.
A new claim?
40. …"A claim for damages is a new claim, even if in the same amount as originally claimed, if the claimant seeks, by amendment, to justify it on a different factual basis from that originally pleaded"; per Auld, LJ, in Lloyds Bank Plc v Rogers [1999] 3 EGLR 83. Here the claim put forward in the Reply (which is not in the same amount as originally claimed) is sought to be justified on a different factual basis.
57. Whether a new claim arises out of the same or substantially the same facts may in a borderline case essentially be a matter of impression but in others it must be a matter of analysis: Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409, 1418D; Paragon Finance plc v DB Thakerer & Co [1999] 1 AER 400, 418; Aldi Stores Ltd v Holmes Building [2003] EWCA Civ 1882. Both my impression and my analysis is that the claims do not so arise."
(a) The authorities suggest that in reviewing whether a new claim arises out of the same or substantially the same facts as a claim already pleaded, one can and should have regard not just to the pleading of the party which is seeking amendment but also all the pleadings.
(b) A facet of this is that it may be highly material for the Court, in order to form a view on this issue, to consider the extent to which any or any additional significant factual investigation would be required to research the new claim over and above that which would have been required for the originally pleaded claims.
Discussion
Costs