Ruttle Plant Hire Ltd v The Secretary of State for the Environment, Food and Rural Affairs

This judgment is in seven parts, namely Part 1 - Introduction; Part 2 - The Facts; Part 3 - The Present Application; Part 4 – Are the Proposed Amendments Consequential on the Preliminary Issues Judgment? Part 5 - DEFRA’s Grounds for Opposing the Amendments; Part 6 - Upon What Terms should the Amendments be Allowed? Part 7 - Conclusion.

This is an application for permission to amend, which raises a novel question of principle. That question is whether the rule in Henderson v Henderson can be invoked as a ground for opposing amendments in existing litigation. The present judgment is a sequel to the judgment given by this Court in Ruttle Plant Hire Limited v The Secretary of State for Environment, Food and Rural Affairs [2006] EWHC 3426 (TCC). Anyone listening to or reading this judgment is assumed to be familiar with the matters set out in that earlier judgment.

After these introductory remarks, it is now time to turn to the facts.

In August 2000, there was an outbreak of “Classical Swine Fever” (“CSF”) in East Anglia. The Ministry of Agriculture, Fisheries and Food (“MAFF”) engaged Ruttle Plant Hire Limited (“Ruttle”) to provide plant and labour for the purpose of controlling the outbreak. Ruttle provided plant and labour for that purpose between August 2000 and June 2001. During that period, MAFF made payments to Ruttle totalling £4,130,393.67. Ruttle contended that substantial further payments were due. Ruttle claimed payment of those sums from the Department for Environment, Food and Rural Affairs (“DEFRA”). DEFRA is the Government department which has replaced MAFF since 8^th June 2001. All of MAFF’s rights and obligations have been transferred to DEFRA.

The Parties were unable to resolve, by negotiation, the outstanding issues concerning payment. Accordingly, by a claim form issued in the Technology and Construction Court on 26^th January 2006, Ruttle claimed against the Secretary of State for the Environment, Food and Rural Affairs £5,743.971.70 as representing the outstanding balance due in respect of the CSF Contract. This sum was the difference between the total value of Ruttle’s invoices and the total amount paid by MAFF to Ruttle in respect of CSF.

At a Case Management Conference held on 21^st March 2006, Ramsey J made an order for the trial of preliminary issues to commence on 11^th December 2006, with a time estimate of eight days. Thereafter, solicitors and counsel on both sides drew up a list of proposed preliminary issues which were crucial to the dispute between the parties. It was believed and hoped that, once these issues had been resolved, the parties and their advisors would be able to resolve the outstanding payment issues by negotiation and agreement.

The list of preliminary issues, which was placed before the Court for determination at the hearing in December 2006, reads as follows:

“2.

Was it a term of the contract between the parties that the claimant would

deduct from its labour charges a 30-minute meal break per labourer or

working foreman per day?

3.

Was a term to be implied into the contract between the parties to the effect that the Claimant was entitled to charge the Defendant an additional ‘administration charge’ of 3% on labour charges?

3a. Is the work described by Mr Carrol at paragraphs 49 to 53 of his witness statement dated 20th October 2006 properly described as tasks carried out by ‘working foremen’ so as to permit the claimant to recover at the agreed labour rate of £17.70 per hour for that work under the express alternatively applied term pleaded at paragraph 62 of the defence and counterclaim or is the value of that work recoverable if at all elsewhere?

4.

What, if any, plant hire rates were agreed between the parties for plant and equipment supplied by the claimant to the defendant to deal with the outbreak of CSF in Bury St Edmunds between August 2000 and June 2001?

5.

In particular, did Clause 1A of the ‘Schedule of Dayworks Carried Out Incidental to Contract Work’ produced by the Federation of Civil Engineering Contractors, dated 22nd January 1990, form part of the agreement between the parties to the effect that for those items of plant which the claimant obtained from subcontractors, the claimant was only entitled to charge the defendant cost plus 12.5%?

6.

If Clause 1A of the Schedule of Dayworks Carried Out Incidental to Contract Work produced by the Federation of Civil Engineering Contractors, dated 22nd January 1990, forms part of the agreement between the parties, is plant to be considered as having been obtained from subcontractors for the purposes of the schedule, in circumstances where plant was provided to Ruttle Plant Hire Limited from within the Ruttle Group?

7.

It being agreed between the parties that the CPA model conditions for the hiring of plant applied to the contract, what is the meaning of clause 24 and what is its application to this contract?

8.

If there was no concluded agreement between the parties as to the aforementioned plant hire rates, what would have been a reasonable rate for the claimant to have charged the defendant for plant and equipment supplied by it to the defendant to deal with the outbreak of CSF in Bury St Edmunds between August 2000 and June 2001?

9.

Was the claimant contractually entitled to charge the defendant hourly hire rates for vehicles such as vans and station wagons where mileage was also charged for the use of those vehicles by foremen and senior staff?

10.

Was the claimant contractually entitled to charge the defendant for plant (apart from scaffolding) that remained on site during close-down over holiday periods, e.g. Christmas and New Year, when there was no labour on site to use the plant? If so, at what rates and for what period of time was the claimant entitled to make such charges?

11.

Was the claimant contractually entitled to charge the defendant for plant in the following circumstances:

(a)

whilst plant remained unused on site at an infected premises pending demobilisation (for example, after cleansing and disinfection had been completed) and during the period when plant remained on site, there was no longer any labour on site to operate the plant;

(b)

where the claimant has removed plant from an infected premises, stored it at another location pending demobilisation and, during the period when the plant was stored at another location, no use was being made of the plant;

(c)

where the claimant has been instructed by the defendant to remove the plant from site as recorded in the defendant’s APO/CPH records?

If so, at what rates and for what period of time was the claimant entitled to make such charges?

13.

Was the claimant contractually entitled to charge the defendant for those items set out in paragraph 106 of the defence and part 20 counterclaim?

15.

Pursuant to section 5 of the Late Payment of Commercial Debts

(Interest) Act 1998, should any interest be paid on any sums due to the claimant for the period from 30^th May 2004 to 11^th February 2005 and, if so, how much?”

As ordered by Ramsey J, the trial of the preliminary issues duly commenced on 11^th December 2006 and lasted for two weeks. On Thursday, 19^th December, I gave judgment on the preliminary issues. Both parties achieved success on certain issues and neither emerged as outright victor (see Parts 7 to 17 of the previous judgment).

For present purposes, it is necessary to focus upon Issues 4 and 7. In respect of Issue 4, the Court made the following order:

“The expressly agreed contractual rates for plant were the full plant hire rates notified by the Claimant to the Defendant on 21^st and 31^st August 2000. Further, consequent upon this finding by the Court, the parties have agreed that:

(i)

where an item of plant does not feature in the lists of plant rates notified by the Claimant to the Defendant on either 21^st or 31^st August but does nevertheless have a rate specified in the FCEC 1992 schedules, that rate should apply to that item of plant; and

(ii)

where an item of plant does not feature in the lists of plant rates notified by the Claimant to the Defendant on either 21^st or 31^st August and does not have a rate specified in the FCEC schedules, then in those circumstances a reasonable rate should be agreed between the parties for that item of plant based upon industry custom and practice.”

The short term which is used commonly to refer to rates of the kind referred to in sub-paragraph (ii) is “Star Rates”.

In respect of Issue 7, the Court made the following order:

“Clause 24 of the CPA conditions sets out a procedure for terminating the contract between the Defendant and the Claimant. During the currency of that contract, reasonable notice for taking any specific piece of plant off hire was seven days notice in writing”.

Having given judgment promptly at the end of the trial, I hoped and expected that the parties would respond by dealing with ancillary matters swiftly and efficiently. That expectation was not fulfilled. Over three months elapsed before the parties returned to Court to argue about outstanding costs issues. No less than five months elapsed before the Claimant applied to make amendments, which are said to be consequential on the Preliminary Issues judgment.

The Technology and Construction Court endeavours to provide an efficient service to the business community, in particular by the prompt delivery of judgments. That process is not assisted if the parties or their lawyers then delay for months on end before dealing with consequential matters.

The matter which is now before the Court is Ruttle’s application to make what are said to be consequential amendments to the Particulars of Claim. Let me, therefore, turn to the present application.

By an Application Notice dated 21^st May 2007, Ruttle applied to re-re-amend the Particulars of Claim by inserting new paragraphs 12A to 12G and 16A to 16B. The new paragraphs, which Ruttle seeks to insert by way of re-re-amendment, read as follows:

“12A. The Preliminary Issue Judge found that the rates set out in the Claimant's faxes of 21 August 2000 and 31 August 2000 were the contractual rates to be paid by the Defendant to the Claimant in respect of the items of plant and equipment identified in those faxes.

“12B. Following and consequential upon such finding, the parties reached the following further agreement in relation to the rates to be paid in respect of items of plant or equipment which did not feature in the lists of plant rates notified by the Claimant to the Defendant on either 21 or 31 August:

Where no rate is specified in the FCEC 1992 schedules in respect of any item of plant or equipment, a reasonable rate should be agreed between the parties for that item of plant based upon industry custom and practice. Such rates have been referred to by the parties previously and are referred to in this statement of case as ‘star rates’. As found by the Preliminary Issue Judge, the parties expressly agreed. a number of star rates in August 2000, in that some of the rates specified in the faxes of 21 and 31 August 2000 were star rates because they related to items of plant or equipment for which no rate is specified in the FCEC 1992 Schedules. Paragraph I2C below sets out the Claimant's case as to the manner in which those star rates which have not yet been agreed (‘outstanding star rates’) should be arrived at.

DEFRA consents to the insertion of paragraphs 12A and 12B. DEFRA opposes the introduction of the other paragraphs. DEFRA does not rely upon limitation as an objection to making the amendments. DEFRA has two separate grounds of opposition to those amendments.

The first ground of opposition is that the draft re-re-amendments offend against the principle that a party cannot return to court and advance arguments, claims or defences which that party could have put forward for decision on the first occasion but failed to raise.

The second ground of opposition is that the proposed re-re-amendment of the Particulars of Claim would be incompatible with the overriding objective, as set out in the Civil Procedure Rules.

Before tackling these two grounds of opposition, I must first consider whether the proposed amendments are consequential on the Preliminary Issues judgment.

In relation to Issue 4, the effect of the Preliminary Issues judgment is that certain items of plant will have to be valued at star rates. Star rates are, by definition, rates which are not fixed and precise but fall to be assessed and negotiated.

Given the course of dealings between the parties to date, it seems to me increasingly improbable that the parties will reach agreement about star rates or, indeed, about much else. In those circumstances, the Court will have to fix the star rates for each individual item of plant. Against that background, it is clearly helpful for each party to plead its case in relation to star rates. This is precisely what Ruttle has done in paragraphs 12C and 12D of the draft Re-Re-Amended Particulars of Claim. Therefore, those paragraphs should properly be regarded as consequential amendments.

Let me now turn to Issue 7. At the trial last December, I rejected Ruttle’s contention that clause 24 of the CPA Conditions expressly required seven days’ notice to be given when any item of plant was taken off hire. However, I held that there was an implied term to that effect (see paragraphs 299 to 309 of the judgment).

It was an oddity of the pleadings that, although both parties wished the Court to determine this issue, Ruttle, in its invoices and Particulars of Claim, was not actually claiming all the money which would be due if Ruttle prevailed on the issue. Instead, Ruttle indicated that such a claim would be made in due course.

In paragraph 9 (i) of its Reply, Ruttle pleaded as follows:

“By condition 24, where the period of plant hire is indeterminate (as it was in this case), the contract is determinable by seven days notice in writing to the other party. In the event of the Hirer (i.e. the Defendant) desiring to terminate the contract and failing to give notice, hire for the period of the seven day notice period shall be chargeable at idle time rates in lieu of notice. The condition further provides that notice given by the Hirer to the Owner’s driver or operator is not deemed to constitute sufficient notice to comply with this condition. It is averred that no such notice was ever given and in so far as the Claimant has not so far charged for hire at idle rates for all plant for seven days in lieu of notice following receipt of the Defendant’s instructions to take the plant off hire such charges will be levied after the Court has determined the contractual basis for charging in due course”.

I am bound to say that this is an unconventional approach to pleading and not one which I feel able to commend. On the other hand, Issue 7 was placed by the parties before the Court for decision and the issue was fully argued. It was plain to everybody that Issue 7 was relevant not only to matters raised by the Defence but also to the claim which Ruttle proposed to make, if Ruttle succeeded on the question of principle. In the event, Ruttle did succeed on the question of principle. In paragraphs 12E to 12G of the draft Re-Re-Amended Particulars of Claim, Ruttle now seeks to be paid hire charges for each item of plant during the seven-day notice period.

I have come to the conclusion that these paragraphs are consequential upon the Preliminary Issues judgment. They set out a claim which follows from the court’s decision on Issue 7 and which Ruttle had always said that it would pursue if successful upon Issue 7.

I come finally to paragraphs 16A and 16B of the draft Re-Re-Amended Particulars of Claim. There is a background to this plea which needs to be explained. There was once an issue between the parties as to the dates upon which the various charges fell to be paid. On this issue, Ruttle based its case upon the Scheme for Construction Contracts (England and Wales) Regulations 1998, to which I shall refer as “the 1998 Regulations”. In relation to the claims that were currently pleaded, this dispute was compromised by an agreement between solicitors. Under the compromise agreement, both parties accepted that invoices became payable after 30 days. The compromise agreement does not apply to any claims which may now be added to the Particulars of Claim by way of re-re-amendment. Accordingly, if and in so far as any such additional claims are permitted by way of amendment, both parties will have to plead their respective cases as to the dates when the additional claims (if valid) became payable. It is, of course, open to the parties to extend the compromise agreement to newly-pleaded claims. However, no such extension has yet been agreed. That must be a matter for the parties, not the Court.

Paragraphs 16A and 16B of the draft Re-Re-Amended Particulars of Claim set out Ruttle’s case as to when the newly-claimed sums became payable by reference to the 1998 Regulations. These paragraphs are parasitic upon the earlier amendments. Accordingly, I am satisfied that paragraphs 16A and 16B are consequential upon the Preliminary Issues judgment.

Let me now draw the threads together. For the reasons set out above, I find that all the proposed amendments are consequential upon the Preliminary Issues judgment. My answer to the question posed in Part 4 of this judgment is “yes”.

DEFRA’s grounds for opposition have been set out in Part 3 above. Mr Jonathan Acton Davis QC bases his first ground of opposition upon the rule in Henderson v Henderson (1843) 3 Hare 100. In that case, the Plaintiff brought proceedings for an account of money owed to him by his late brother. The action was brought against the brother’s personal representative and various family members who had received money from the estate. The Defendants issued a demurrer (in effect, an application to strike out) on the grounds that these matters had already been decided by the Supreme Court of Newfoundland. The issue then arose as to what had been the scope of the Newfoundland proceedings. Sir James Wigram, the Vice-Chancellor, held that all relevant matters had been litigated in the Newfoundland proceedings. Accordingly, he allowed the demurrer.

At pages 114 to 115, the Vice-Chancellor said this:

“In trying this question, I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising responsible diligence, might have brought forward at the time.”

This famous and eloquent passage has become known as the rule in Henderson v Henderson. A long line of authorities built upon the dictum in Henderson v Henderson establishes that the Court will strike out as abusive claims which should have been raised but were not raised in the course of earlier litigation. That long line of authorities was reviewed and digested by the House of Lords in Johnson v Gore Wood & Co [2002] 2 AC 1.

The cases in the Henderson line of authorities upon which Mr Acton Davis places principal reliance are the following: Greenhalgh v Mallard [1947] 2 All ER 255; Yat Tung Investment Co Limited v Dao Heng Bank Limited [1975] AC 581; Barrow v Bankside Agency Limited [1996] 1 WLR 257; Johnson v Gore Wood and Co [2002] 2 AC 1.

I endeavoured to summarise the effect of those authorities, as well as certain related authorities, in Aldi Stores Limited v WSP Group Plc [2007] EWHC 55 (TCC). Both counsel in the present case placed some reliance upon the review of the Henderson line of authorities to be found in Aldi Stores.

The crucial issue in the present case is whether the rule in Henderson v Henderson can be invoked in order to prevent a party from pleading, at a late stage in litigation, issues which might have been pleaded earlier. Mr Andrew Spink QC, for Ruttle, contends that it cannot be so invoked.

Both counsel have diligently researched the law on this issue. Neither Mr Acton Davis nor Mr Spink can find any previous decision in which this question has been considered. Therefore, they have both made their submissions by reference to general principles and by reference to the usual formulations of the Henderson rule.

Having considered the competing submissions of counsel, I have come to the conclusion that the rule in Henderson v Henderson cannot be invoked in order to prevent a party from pleading at a late stage in litigation issues which might have been pleaded earlier. I reach this conclusion for four reasons.

Let me now turn to DEFRA’s second ground of objection. Mr Acton Davis contends that it would be inconsistent with the overriding objective of the Civil Procedure Rules to permit the proposed re-re-amendments.

The overriding objective of the Civil Procedure Rules is set out in Rule 1.1 as follows:

“(1). These Rules are a new procedural code with the overriding objective of enabling the Court to deal with cases justly.

(2). Dealing with a case justly includes, so far as practicable -

(a)

ensuring that the parties are on an equal footing;

(b)

saving expense;

(c)

dealing with the case in ways which are proportionate:

(i)

to the amount of money involved;

(ii)

to the importance of the case;

(iii)

to the complexity of the issues; and

(iv)

to the financial position of each party;

(d)

ensuring that it is dealt with expeditiously and fairly; and

(e)

allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”

In support of this ground, Mr Acton Davis has taken me through the history of this action in some detail. He points out that the trial of preliminary issues was always expected to lead to an overall resolution of the litigation. In the event, that has not happened. Instead, says Mr Acton Davies, Ruttle has taken the opportunity to re-group and re-formulate its case in the aftermath of the preliminary issues trial. It is quite wrong that Ruttle should now have the benefit of a further hearing in which yet more generic issues are determined by the Court.

These arguments were attractively presented, but I have come to the conclusion that they are unsound. The preliminary issues were expected to lead to an overall resolution of the litigation, not because there were no other issues between the parties, but because it was anticipated that the remaining issues might be capable of negotiation and agreement. It now appears that that is not the case. The matters which are now pleaded by way of re-re-amendment have been obvious from the outset as matters which, one way or another, might need to be resolved between the parties. These matters could have been avoided if, and only if, the preliminary issues had been decided in a different way.

I have come to the conclusion that the amendments which Ruttle seeks to make do not conflict with the overriding objective. On the contrary, these amendments are necessary in order to enable the true issues between the parties to be resolved, and in order to give financial effect to the court’s decision on the preliminary issues.

Let me now draw the threads together. I am not persuaded by the grounds of objection which DEFRA has put forward. Having considered all the circumstances of this case and in the exercise of my case management discretion, I conclude that it is proper to allow the amendments which Ruttle seeks.

Mr Acton Davis has urged upon me that, if the amendments are allowed, this should be on terms that interest does not start to run on the new claims until May 2007, when the latest batch of invoices was delivered. I can see some force in the argument that Ruttle should not recover interest on the sums claimed in paragraphs 12E to 12G of the Re-Re-Amended Particulars of Claim before May 2007. It was not until 4^th May 2007 that Ruttle first delivered invoices claiming those sums. On the other hand, the substantive argument about interest is one which ought to be dealt with at trial rather than in the context of an interlocutory application. I do not, therefore, make it a condition of permission to amend that certain claims cannot carry any interest before May 2007.

There is another matter in relation to interest which the trial judge will have to consider. There has been a delay of five months between the Preliminary Issues judgment and Ruttle’s application to make consequential amendments to its Particulars of Claim. That delay appears to me to be excessive. Work should have been put in hand before the Preliminary Issues hearing. The trial judge will have to decide what interest to disallow in respect of the entirety of Ruttle’s claim in order to mark the Court’s disapproval of that delay. As to the Court’s approach in relation to the disallowance of interest on the grounds of delay during the course of litigation, see Claymore Services Ltd v Nautilus Properties Ltd [2007] EWHC 805 (TCC).

All of these issues concerning interest are matters to be debated at trial. They should not affect my present order giving permission to amend.

I turn next to the question of costs. The usual order, when the Court gives permission to amend, is that the applicant should pay the costs of and caused by the amendment. This entitles the respondent to recover the costs of preparing for and attending the application and also the costs of any consequential amendment to his own pleadings (see paragraph 8.5 of the Practice Direction supplementing CPR Part 44).

Mr Acton Davis argues that I should make a far more swingeing costs order, in his favour, than the usual order. I am not persuaded, however, that, in the circumstances of this case, such a course is appropriate.

Mr Spink submits that this Court should make a costs order more favourable to Ruttle than the usual order. Mr Spink submits that, since Ruttle will have won on the substantive issues by getting permission to amend, DEFRA should pay the costs of the hearing.

There is force in the point that Mr Spink has won on the issues of principle and has obtained permission to amend in the face of strong opposition. On the other hand, I do not think it right to depart so far from the usual order as to award costs in favour of Ruttle. Having considered all the circumstances of this case, I conclude that the proper order in respect of costs is as follows:

For the reasons set out in Parts 4 and 5 above, I give Ruttle permission to re-re-amend the Particulars of Claim in accordance with the draft before the Court. In addition, I make an order for costs as set out in Part 6 above.

At the end of the hearing last December, I requested the lawyers to co-operate in drawing up an order to give effect to the Court’s judgment. That process took over three months, which is not acceptable. Today, I make a similar request of the lawyers on both sides, however I add this rider. The form of order must be lodged within two days from today.

Finally, I turn to the future conduct of this litigation. It will not be appropriate for this Court to try any further preliminary or generic issues. All outstanding issues between the parties must be determined in a single trial. I think that the best way forward is for this Court to give directions for the future conduct of the litigation at a Case Management Conference in the near future. The arrangements for that Case Management Conference should be made promptly.