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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 >> Alfred McaLpine Capital Projects Ltd v Siac Construction (UK) Ltd & Ors [2005] EWHC 3139 (TCC) (19 December 2005) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2005/3139.html Cite as: [2006] BLR 139, 105 Con LR 73, [2005] EWHC 3139 (TCC) |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
B e f o r e :
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ALFRED McALPINE CAPITAL PROJECTS LIMITED (formerly ALFRED McALPINE CONSTRUCTION LIMITED) |
Claimant |
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- and - |
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(1) SIAC CONSTRUCTION (UK) LIMITED (2) SIAC CONSTRUCTION LIMITED (3) NORMAN & DAWBARN LIMITED (in creditors' voluntary liquidation) (4) WHITE YOUNG GREEN CONSULTING LIMITED |
Defendants |
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A N D B E T W E E N : |
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(1) SIAC CONSTRUCTION (UK) LIMITED (2) SIAC CONSTRUCTION LIMITED |
Part 20 Claimants |
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- v - |
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(1) NORMAN & DAWBARN LIMITED (in creditors' voluntary liquidation) (2) POWELL TOLNER & ASSOCIATES (3) WHITE YOUNG GREEN CONSULTING LIMITED (4) PARKER DESIGN ASSOCIATES |
Part 20 Defendants |
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Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel: 020 7831 5627 Fax: 020 7831 7737
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MS. KATE GRANGE (instructed by Osborne Clarke) appeared on behalf of SIAC.
MR. SIMON HARGREAVES (instructed by Reed Smith) appeared on behalf of Norman & Dawbarn.
MS. KATE VAUGHAN-NEIL (instructed by Hill Dickinson) appeared on behalf of Powell Tolner Associates.
MS. S. SOOD and MR. KEITH SELL (Solicitors of Beale & Co.) appeared on behalf of White Young Green Consulting Ltd.
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Crown Copyright ©
MR. JUSTICE JACKSON:
PART 1: INTRODUCTION
PART 2: THE FACTS
"As you will see, SIAC UK are threatening to commence proceedings against AMCP (see page 2, paragraph 1.2 of Osborne Clarke's letter of 3rd March 2005). Equally, AMCP might have to sue SIAC UK. An issue has arisen concerning the allowances, if any, that were made in the cladding and glazing systems for structural and other movements in the building (see pages 16 and 17, paragraphs 1.5 to 1.12). SIAC UK suggest that if AMCP commences proceedings against them, they will bring contribution proceedings against Powell Tolner Associates and/or White Young Green (page 16, paragraph 1.9). As you know, they were the structural engineers on the project (the latter replacing the former). We do not know what SIAC's intentions, if any, are concerning you. Given your role on the project, we should be grateful for your comments on SIAC's allegations at paragraphs 1.5 to 1.12 on pages 16 to 17 of Osborne Clarke's letter of 3rd March 2005."
"We advise that as of 11th April 2005 Norman & Dawbarn Ltd. entered into administration and its assets and business was subsequently acquired by Capita Symonds. Capita Norman & Dawbarn are now operating as a trading division of Capita Symonds. Prior to reviewing and commenting on your document, a new set of appointment documents will need to be put in place between Capita, Norman & Dawbarn and Alfred McAlpine for this project. In addition, our involvement with this particular issue will be an additional service. We will therefore need to agree hourly rates to cover our time input."
"It is clear from the background documents (copies of which we have provided to you) that Norman & Dawbarn played a significant role in relation to the provision of required allowances for structural and other movements to SIAC. Although it appears that SIAC will be alleging that the structural engineers involved in the project, PTA and WYG, were responsible for any inadequacies in the allowances for movement, from the documentation we have seen SIAC's allegation could apply equally to Norman & Dawbarn Ltd. In the event that SIAC's version of events is correct, AMCP are entitled to compensation from Norman & Dawbarn Ltd. for the losses they have suffered as a result of the inadequate allowance for movement in the cladding installed by SIAC at Onslow House. AMCP therefore have a claim against Norman & Dawbarn Ltd. Please confirm that this claim has been notified to your insurers and provide us with their identity and contact details. We consider it very much in your interest to assist AMCP in clarifying Norman & Dawbarn Ltd.'s role in respect of allowances for movement without the need for formal action to be taken by our client."
PART 3: THE PRESENT PROCEEDINGS
PART 4: HOW DOES THE PROTOCOL APPLY TO ADDITIONAL PARTIES WHO ARE BROUGHT INTO A MULTI-PARTY ACTION?
"The objectives of this Protocol are as set out in the Practice Direction relating to Civil Procedure Pre-Action Protocols, namely:
(i) to encourage the exchange of early and full information about the prospective legal claim;
(ii) to enable parties to avoid litigation by agreeing a settlement of the claim before commencement of proceedings;
(iii) to support the efficient management of proceedings where litigation cannot be avoided."
"The general aim of this Protocol is to ensure that before court proceedings commence:
(i) the claimant and the defendant have provided sufficient information for each party to know the nature of the other's case;
(ii) each party has had an opportunity to consider the other's case, and to accept or reject all or any part of the case made against him at the earliest possible stage;
(iii) there is more pre-action contact between the parties;
(iv) better and earlier exchange of information occurs;
(v) there is better pre-action investigation by the parties;
(vi) the parties have met formally on at least one occasion with a view to:
• defining and agreeing the issues between them; and• exploring possible ways by which the claim may be resolved;
(vii) the parties are in a position where they may be able to settle cases early and fairly without recourse to litigation; and
(viii) proceedings will be conducted efficiently if litigation does become necessary."
"COMPLIANCE
If proceedings are commenced, the court will be able to treat the standards set in this Protocol as the normal reasonable approach to pre-action conduct. If the court has to consider the question of compliance after proceedings have begun, it will be concerned with substantial compliance and not minor departures, e.g. failure by a short period to provide relevant information. Minor departures will not exempt the 'innocent' party from following the Protocol. The court will look at the effect of non-compliance on the other party when deciding whether to impose sanctions. For sanctions generally, see paragraph 2 of the Practice Direction - Protocols 'Compliance with Protocols'."
"2.1 The Civil Procedure Rules enable the court to take into account compliance or non-compliance with an applicable Protocol when giving directions for the management of proceedings (see CPR rules 3.1(4) and (5) and 3.9(e)) and when making orders for costs (see CPR rule 44.3(5)(a)).
2.2 The court will expect all parties to have complied in substance with the terms of an approved Protocol.
2.3 If, in the opinion of the court, non-compliance has led to the commencement of proceedings which might otherwise not have needed to be commenced, or has led to costs being incurred in the proceedings that might otherwise not have been incurred, the orders the court may make include:
(1) an order that the party at fault pay the costs of the proceedings, or part of those costs, of the other party or parties;
(2) an order that the party at fault pay those costs on an indemnity basis;
(3) if the party at fault is a claimant in whose favour an order for the payment of damages or some specified sum is subsequently made, an order depriving that party of interest on such sum and in respect of such period as may be specified, and/or awarding interest at a lower rate than that at which interest would otherwise have been awarded;
(4) if the party at fault is a defendant and an order for the payment of damages or some specified sum is subsequently made in favour of the claimant, an order awarding interest on such sum and in respect of such period as may be specified at a higher rate, not exceeding 10% above base rate (cf. CPR rule 36.21(2), than the rate at which interest would otherwise have been awarded.
2.4 The court will exercise its powers under paragraphs 2.1 and 2.3 with the object of placing the innocent party in no worse a position than he would have been in if the protocol had been complied with."
"There can often be a complaint that one or other party has not complied with the Protocol. The court will consider any such complaints once proceedings have been commenced. If the court finds that the claimant has not complied with one part of the Protocol, then the court may stay the proceedings until the steps set out in the Protocol have been taken."
(1) When was it known that the party in question was going to be joined in the action?
(2) What information about the action and the underlying dispute was given to that party before joinder and when?
(3) How large a part does the new party play in the action as a whole?
(4) What stay, if any, could be accommodated in the proceedings against the new party without jeopardising the overall timetable?
(5) Does justice require that the whole timetable should be put back and that a new trial date should be fixed?
(6) Could the new party be compensated in costs for any non-compliance with the Protocol? If so, should the question of costs be addressed immediately or should that question be addressed at the end of the action?
(7) Is there any way (other than a stay) within the parameters of the existing timetable by which the new party could be put in the same position that it would occupy if the Protocol had been followed?
PART 5: NORMAN'S APPLICATION FOR A STAY OF THE PART 20 PROCEEDINGS
PART 6: MCALPINE'S APPLICATION TO JOIN NORMAN AS DEFENDANT IN THE MAIN ACTION
"10. Although [McAlpine] originally intended to pursue this litigation against only SIAC (the party which appears to [McAlpine] to be primarily responsible for the deficiencies in the curtain walling), [McAlpine] has (particularly since it became clear that SIAC intended to join other parties to the proceedings) been actively considering whether and if so to what extent it has claims against the other parties which SIAC has joined. [McAlpine] considers that it has claims against [Norman] and [White Young], which it wishes to pursue in these proceedings and have determined at trial together with its claims against SIAC, and SIAC's Part 20 claims against those (and other) parties. Accordingly [McAlpine] has prepared an Amended Claim Form which adds [Norman] and [White Young] as Third and Fourth Defendants in the main action… and is well advanced in preparing (a) Amended Particulars of Claim which incorporate claims against these two additional parties, and (b) an Amended version of the Non-Compliance Schedule which deals with [McAlpine's] claims against [Norman] and [White Young] by reference to the specific Non-Compliances. [McAlpine] expects to be in a position to serve final versions of these Amended Particulars of Claim and supporting documents within six days of the [case management conference] on 16 December, i.e. by 22 December 2005.
11. There is a significant degree of overlap between the Part 20 claims made by SIAC against [Norman] and [White Young] and [McAlpine's] proposed claims against those parties, in that, as against each of [Norman] and [White Young]:
(a) plainly, both SIAC's Part 20 claim and [McAlpine's] proposed claim arise out of the same design, co-ordination and inspection work carried out by (and obligations owed by) the particular consultant in relation to the Project;
(b) like SIAC, [McAlpine] proposes to claim against each consultant in relation to the movement joint allegations, i.e. there is complete overlap in the claims so far as these allegations (Spn01, Spn02, Kaw01) are concerned. As against [Norman], [McAlpine] first told [Norman] that it would claim against them in respect of these allegations on 25 April 2005. In early June 2005 [White Young] confirmed that they had produced a document for us setting out their position in respect of the movement joints allegations... We have yet to see this document;
(c) as regards the further Non-Compliances in respect of which SIAC pursues these consultants, listed at paragraph 9 above, [McAlpine] proposes to proceed against [Norman] and [White Young] in respect of some but not all of these. However, it is [McAlpine's] present intention to pursue [Norman] and [White Young] also in relation to further Non-Compliances which are not (presently) pursued by SIAC in relation to these consultants. In relation to [Norman] there are about 50 such further Non-Compliances, and in relation to [White Young] there are about six. Two thirds or more of these further Non-Compliances which [McAlpine] intends to pursue (particularly against [Norman]) relate purely to failures on the part of [Norman] to notice (and notify [McAlpine]) of the Non-Compliances during the course of [Norman's] inspections of the works."
PART 7: THE POSITION OF WHITE YOUNG AND POWELL TOLNER
"We confirm our client's consent to your application to join them as defendants in the main action. We confirm our client's agreement to the sensible proposed directions contained in your letter of 14th December with the following caveats. We note you accept our clients have agreed to a time for service of their defence without seeing the amended particulars and as such this may give rise to unforeseen difficulties with the timetable. We agree our client will be in a position to deal with this and raise it with the court during January if necessary. While we do not consider it is appropriate for experts to meet prior to the mediation, it would facilitate resolution if they prepare and exchange preliminary reports. We are grateful for your willingness to provide advanced disclosure as we anticipate some disclosure will clearly be of benefit to us in assessing the claim made against our client. It is likely that advanced disclosure will be sought from other parties."
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