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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Taylor Wimpey UK Ltd v Harron Homes Ltd [2020] EWHC 1190 (TCC) (13 May 2020) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2020/1190.html Cite as: [2020] EWHC 1190 (TCC), 191 Con LR 60, [2020] BLR 514 |
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BUSINESS AND PROPERTY COURTS
TECHNOLOGY AND CONSTRUCTION COURT (QB)
Fetter Lane London, EC4A 1NL |
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B e f o r e :
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Taylor Wimpey UK Limited |
Applicant |
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- and |
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Harron Homes Limited |
Respondent |
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Lucie Briggs (instructed by Clarion Solicitors Ltd) for the Respondent
Hearing date: 7 May 2020
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Crown Copyright ©
Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date for hand-down is deemed to be 13 May 2020.
Mr Justice Fraser:
Introduction
B. The agreement between the parties
C. The law
D. The jurisdictional threshold
E. Discretion
F. Conclusion
(1) Certain design documents: the iD Civils design drawings and the design calculations and correspondence concerning the designed allowances and flows from the Retained Land. The Retained Land is explained at [16] below.
(2) The as-built drawings of the drainage installed by or on behalf of HH.
(3) The adoption correspondence between HH and Yorkshire Water. Yorkshire Water is the statutory undertaker for the area where the Retained Land is situated, and this is explained further at [18] to [20] below.
B. The Agreement between the parties
"24.1 Save as otherwise provided herein any dispute or difference which shall arise between the Developers as to the construction of this Agreement or as to the respective rights duties and obligations of the Developers or as to any other matter arising out of or connected with the subject matter of this Agreement shall at any time by serve of a Dispute Notice be referred to an Expert for Expert Determination."
"(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 jurisdictional threshold is not, I think, intended to be a high one. The real question is likely to be one of discretion, and answering the jurisdictional question in the affirmative is unlikely in itself to give the judge much of a steer as to the correct exercise of his power."
"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."
"[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 the 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."
"It must be that, in almost every dispute, a case could be made out that pre-action disclosure would be useful in achieving a settlement or otherwise saving costs. It follows, in my judgment, that, in order to obtain pre-action disclosure, the circumstances must be outside "the usual run" to allow the hurdle to be surmounted: Trouw UK Ltd v Mitsui & Co (UK) Plc [2006] EWHC 863 (Comm) at [43]. The point is a somewhat barren one. The absence of any convincing grounds for distinguishing the case from the normal run would be telling grounds for not exercising the court's discretion. But for the moment I will consider the topic in the context of jurisdiction."
"In many TCC cases, disclosure is a labour-intensive exercise and a major head of costs. Therefore, disclosure before the proper time is not something which should be lightly ordered. On the other hand, the court encourages the early and candid exchange of information in the hope that this will promote settlement before excessive costs are incurred. Alternatively, it is hoped that the parties may at least narrow the issues between them. This is part of the philosophy which underlies the Pre-action Protocol for Construction and Engineering Disputes. It should be noted that this is the only pre-action protocol which requires a meeting between the parties before they resort to litigation."
He also added at [29] "Given the level of co-operation between opposing parties, which is a normal feature of TCC litigation, I would not expect an order for pre-action disclosure to be appropriate in most cases which come before this court."
D. The jurisdictional threshold
"In contradistinction [to arbitration clauses] expert determination clauses generally presuppose that the parties intended certain types of dispute to be resolved by expert determination and other types by the court (or if there is an arbitration clause by arbitrators). The rationale of Fiona Trust does not therefore apply, as the parties have agreed to two types of dispute resolution procedure for disputes which might arise under the agreement. The LLP agreement illustrates this: the parties agreed by Clause 26.2 to submit to the exclusive jurisdiction of the English courts, but reserved specific disputes under Clause 26.1 to the expert. They carved out of the exclusive jurisdiction of the English courts, to which they had submitted all disputes between the parties, a limited class of dispute."