Fitzpatrick Contractors Ltd v Tyco Fire & Integrated Solutions (UK) Ltd

This is an application by the Claimant, Fitzpatrick Contractors Limited (“Fitzpatrick”), to adjourn the trial which is currently due to start on 10th November 2008. The application is hotly contested and, therefore, I need to set out some of the background material.

The parties were, respectively, the main contractor and the subcontractor in respect of the refurbishment of the Blackwall Tunnel. Fitzpatrick commenced proceedings against Tyco Fire and Integrated Solutions (UK) Limited (“Tyco”) in July 2007. Their claims involve, broadly speaking, allegations of delay against the subcontractor and allegations of defective work. Tyco defend the claims and bring counterclaims against Fitzpatrick. The claims are relatively large, even by the standards of the TCC. The overall claims made by Fitzpatrick are in the order of £20 million and the counterclaim is in the order of £6 million.

I am told that, as and when the trial occurs, there will be a large number of documents. Indeed, this morning, Mr Livesey QC threatened that there would be “literally hundreds of bundles”, but I sincerely hope that that is not the case because, even in a claim worth £20 million, a trial involving hundreds of bundles is unlikely to be justified. That said, it is clear that this is a complex case which will involve a large amount of consideration of the detail. On that point at least, I am in the happy position of knowing something about the background, because earlier this year I tried various preliminary issues in relation to the terms of the contract between the parties. I, therefore, know that this is going to be a complex trial.

Following the commencement of proceedings, Ramsey J gave directions on 12th October 2007. It was on that occasion that the trial date was fixed for November 2008. That was a trial date which was earlier than Fitzpatrick wanted, who were arguing for a date in 2009. The directions took the parties up to disclosure and a fixing of the preliminary issues, but did not deal with witness statements or expert reports. On 20th December 2007, the parties again appeared before Ramsey J, who identified the preliminary issues which, in the event, I tried. He also set out a timetable for the various steps in the litigation leading up to the trial on 10th November. Again, I should note that those directions were made at a time when Fitzpatrick contended before the judge that the trial timetable was too tight and that the trial date should be moved to 2009.

The outstanding steps as at 20th December 2007 started with the service of a reply to the amended Defence and a Defence to the amended Counterclaim for which document Ramsey J allowed a period of two months. Thereafter, there were witness statements to be exchanged in the middle of February and experts meeting from 27th June, completing their joint statements by 29th August and filing their experts’ reports by 26th September. As I have said, although this led up to the trial date of 10th November, at paragraph 10 of his order, Ramsey J indicated that there would be a further case management conference on 6th June 2008 in order to review the trial date and length and the directions for expert evidence to which I have just referred.

The preliminary issues took place before me in March. Since I was aware of the proximity of the trial date, I gave answers to the preliminary issues on 28th March 2008. In relation to one further issue, which was not capable of being resolved at that point and which required a further hearing in April, I indicated to the parties the answer on 16th May. My full judgment was then handed down on 13th June, that day being the adjourned case management conference that Ramsey J had originally fixed for the 6th.

At that hearing, and somewhat to my surprise, Fitzpatrick, who had been almost entirely successful on the preliminary issues, indicated that they wanted an adjournment. There was no evidential material to support that application and it was difficult to see, in the immediate aftermath of the preliminary issues, how an adjournment application could be justified. I, therefore, suggested that, rather than dealing with it on that occasion, the parties should exchange amended pleadings to reflect what had happened on the preliminary issues and then, if Fitzpatrick still wanted an adjournment, come back before me today, 25th July. That effectively is what has happened. On 22nd July, a formal application was made by Fitzpatrick for an adjournment. That application was supported by a witness statement of Fitzpatrick’s solicitor, Mr Crossman, and there is a witness statement in response from Mr Bessey. Both of those statements exhibit letters from the experts dealing with the proposed timetable and trial in November.

Turning then to the application to adjourn, the first question is the identification of the relevant principles. I have been referred to the overriding objective; and it seems to me to be right that I have to consider the application to adjourn against the background of CPR 1.1(2) and, in particular, whether or not the adjournment would save money or deal with the case in a way that is proportionate, and in particular whether that is proportionate to the amount of money involved, the importance of the case and the complexity of the issues. It is also important under CPR 1.1(2)(d) to ensure that the case is dealt with expeditiously and fairly. CPR 1.1(2)(e) is also relevant, namely the question of the appropriate share of the court’s resources, given that questions of adjournments can affect the resources which the court may have available at any given time: planning by the Court Service to ensure that particular cases can be dealt with by particular judges takes place months in advance of the trials themselves.

My attention has also been drawn to two other principles. The first is the Practice Direction to Part 29, which deals with the consequences of a failure to comply with a case management direction. It seems to me that that is of some relevance because both parties have failed to comply with some of the recent orders of Ramsey J, and of course by their application Fitzpatrick are seeking to effectively subvent a number of those orders. Paragraph 7 of the Practice Direction makes plain that an adjournment is an order of last resort, and paragraph 7.4(5) also deals with the situation in which the court ends up with no option but to adjourn the trial. It seems to me that it is right that a court considering any application to adjourn should treat it as a matter of last resort or, as it has been put elsewhere, “an application that faces something of an uphill struggle”.

The other matter to which my attention was drawn is the Court of Appeal decision in Rollinson v Kimberly Clark Limited[2000] CP Rep. 85, one of a number of cases in which a claimant sought an adjournment of a trial in circumstances where there was a difficulty with the expert who was otherwise going to be giving evidence, but where those difficulties were entirely self-inflicted, in that the expert had always been unavailable for the particular trial dates. The court had to deal there with the clash between the overriding objective on the one hand, and ensuring relative speed on the other. The court concluded that the judge who had refused the adjournment properly exercised his discretion or, as Judge LJ (as he then was) put it, that the claimant had not shown that the exercise of the judge’s discretion was wrong in the sense that the court should intervene. In the last sentence of his judgment, he referred to the importance of progressing litigation as rapidly as reasonably possible, consistent with justice.

I consider that all of those points apply here. I do also consider, as I have indicated to the parties, that it is not irrelevant that the hearing on 6th June was expressly for the purpose of reviewing the trial date. That was in accordance with Ramsey J’s order. He made that order because, as at 20th December, it was not entirely clear that the trial date was going to be capable of being maintained and he believed that the parties would be in a better position to know whether or not it could be maintained on 6th June. That review, therefore, came before me originally on 13th June, but, for the reasons I have given, it was effectively delayed until today. Therefore, I do consider that at least part of the argument today would always have been necessary as a result of the review of the trial date originally ordered by Ramsey J.

The first question, so it seems to me, is whether this case can be ready for a proper and effective trial in accordance with the overriding objective on 10th November 2008. For four reasons, I have concluded that it cannot be ready. I deal briefly with each of those four reasons.

The first is a simple comparison between the timetable required by Ramsey J and the timetable that would be required now in order to meet that trial date. As I have indicated, Ramsey J started off with the service by Fitzpatrick of a reply to the amended Defence and a Defence to the amended Counterclaim. From 20th December 2007, with that as the first step, until the trial on 10th November, there was a period of ten and a half months. It so happens that the first thing that I will have to order is the service of an amended reply to the re-amended Defence and a re-amended Defence to the re-amended Counterclaim. Therefore, all of the steps that Ramsey J required still have to be taken. Of course, some of the work has already been carried out, in the sense that the original pleadings already exist and some work will have been done on some of these intervening steps. However, the fact remains that we are looking at endeavouring to do ten and a half months’ work in three and a half months or thereabouts, and it does seem to me that that comparison above demonstrates the difficulties that the parties would have in meeting this timetable. For example, in accordance with Ramsey J’s order, there was a period of about three months between witness statements and experts’ reports. That seems to me to be the right sort of period. On the present timetable, it would be about a bare month, which seems to me to be far too short. So a comparison of the two timetables is quite a useful indication and my first reason for concluding that the trial could not take place in November.

The second reason concerns the question of the experts’ reports. Mr Thomas QC has made very fair submissions about the contents of the letters from the various experts and has helpfully compared what they say. It is right that Tyco’s experts believe that the dates effectively can be met so as to ensure a trial, although they both identify possible difficulties and the inevitability of abortive work based on the tight timetable proposed.

As far as Fitzpatrick are concerned, their experts vary slightly in how they deal with the point. There is no doubt that Mr Crane, the programmer, is by far the clearest in concluding that the proposed timetable is unrealistic and unachievable and sets out in his letter why. It is also right, as Mr Thomas QC pointed out, that he is dealing with slightly earlier dates than those now proposed, but, in the round, I cannot conclude that there is any significance in the fact that the dates now proposed are slightly later. In any event, one of the difficulties with those dates is that they envisage a pre-trial review before the exchange of experts’ reports, which is not a practice that I would encourage. The other two experts who will be giving evidence on behalf of Fitzpatrick are slightly less clear in what they say, although the general thrust of what they say is that the timetable is unrealistic. For example, Mr Walmsley sets out much later dates which he says constitute a realistic timetable; and the only inference I can draw from that is that any earlier dates would otherwise be unrealistic. Mr Cross talks about the difficulties of the timetable and foreseeing that, on that basis, the joint statement is likely to be considerably less comprehensive than would have been the case had more time been available.

Speaking from the point of view of the judge, I regard the experts’ joint statements, particularly in a case like this, to be just about the most important documents that I am given. I view with a large amount of trepidation a case where, this far in advance of the trial, I am told that the joint statement will not be comprehensive. In addition, Mr Cross talks about meeting the dates as presenting a “significant challenge”, but he does not put it higher than that. It is also right to note that Mr Cross was only recently appointed, so any complaints that he might have about the timetable are of consequently less weight. However, in the round, I consider that that expert material does demonstrate that meeting the timetable in a way that properly does justice between the parties is not something that can happen if the November date is maintained.

In relation to the evidence as to the preparation of witness statements, that is dealt with in the statement of Mr Crossman. Mr Crossman concludes that it will not be possible to prepare witness statements by 12th September, which is, as it were, the last gasp date in the timetable that allows the trial date of 10th November to be met. Mr Crossman is an experienced solicitor and it is he who has to prepare these statements: if that, therefore, is his view, then there is little that the court can do to gainsay it. I come back to the question of preparation of statements in a moment when I consider the reasons for the parties being in this present position, but certainly, as things presently stand on the face of Mr Crossman’s evidence, Fitzpatrick will not be ready to meet that date. I note that Mr Bessey, the solicitor acting on behalf of Tyco, is confident that those dates can be met, and it is plain, on the face of the statement, that Mr Bessey is considerably more advanced in the preparation of his case on behalf of Tyco than Mr Crossman is on behalf of Fitzpatrick. But, in the round, the difficulties with statements is the third reason for concluding that a trial in accordance with the overriding objective would not be possible on the basis of the timetable proposed to get us to 10th November.

As to the fourth and final reason, it is really based on the small gaps between each step in the proposed timetable, and my experience of trying to shoehorn into a short period of time a large number of important preparatory steps in a complex case like this. For example, the timetable identifies an amended Reply and Defence to Counterclaim to be served by Fitzpatrick by or about 18th August 2008. Two points arise in relation to that. Firstly, I am always very suspicious of any major step that has to be taken in August and, unless I can absolutely avoid it, I never do make such orders. Secondly, on this point, whilst I consider that some of Mr Rowlands’ points about and criticisms of the re-amended Defence and Counterclaim from Tyco are overstated, I can see that there is plenty of justified ground for requesting further information or clarification from Tyco. That is a step, of course, which this very tight timetable simply makes no allowance for.

The other examples of the practical difficulties with this timetable that I would identify include the service of witness statements on 12th September, which is another important step which is again in the Vacation. I notice, from the availability indications from the experts, that a number of them intend to be away not in August but in September. Since the witness statements in a delay case are of prime significance, in order to allow the experts to come to their views for the purposes of their reports, this creates further problems. There will be two rounds of joint statements, being 5th and then 25th September, and all the experts appear agreed that, although this is likely to be necessary if this tight timetable were met, it is very likely to give rise to abortive work. I have already made the point that the timetable envisages experts’ reports before the pre-trial review, which is, again, not a good idea. There is no allowance for supplementary reports and the gap between the provision of reports and the preparation for trial is almost non-existent. The difficulty with that, so it seems to me, is that it deprives the parties of any thinking time and, in my experience, when an over-tight timetable such as this is being followed, the problem can often be that the case fights in any event because the parties are too busy just dealing with the next step in the process rather than considering the underlying merits of the claim.

For all those reasons, I conclude that it would not be possible to have a trial on 10th November 2008 in this case that would meet the overriding objective and would be a fair or just trial. Therefore, in accordance with the review identified by Ramsey J, but also on the basis of the formal application to adjourn which I indicated to Fitzpatrick they would have to make, I would adjourn the trial. I would adjourn the trial until 21st April 2009 because, of the two dates suggested, that is the date for which I am available and for which I may be available to go through until the conclusion of the trial.

However, unfortunately, that is not the end of the matter, because it seems to me, again in accordance with the overriding objective, I ought to deal in a little more detail with my conclusions as to how and why this position has been reached. The question is: how have we got to this position and was it inevitable? I believe that there are two explanations for the delay, for how and why, as at today’s date, Fitzpatrick are not ready for a trial and Tyco are not ready, in my judgment, for the sort of detailed trial that would have to take place on the basis of these new pleadings.

The first and the most significant of the two reasons is that I have been left in no doubt that there have been delays on the part of Fitzpatrick. I do, however, also consider that the new pleadings served by Tyco will also themselves create delays. I make it plain that I consider that that is a subsidiary reason for the present position.

I deal with those two points in a little more detail. Firstly, dealing with the position of Fitzpatrick, I have already made the point that Fitzpatrick’s attitude throughout has been that 10th November 2008 date was too soon and that the trial should take place in 2009. They have already run that point unsuccessfully in front of Ramsey J on two occasions. Therefore, there is inevitably a suggestion that this present application reflects a determination on their part to get a later trial date no matter what Ramsey J had ordered in the past. Furthermore, I do consider that there has been delay on the part of Fitzpatrick in failing to appreciate the amount of work that was involved in order to comply with the timetable set down by Ramsey J on 20th September. As I have indicated, Mr Crossman, in his statement, deals with the question of witness statements, which in one sense is the most important area in which I consider that Fitzpatrick’s preparation has been delayed. He says in his statement:

“In the absence of Tyco’s case, we have been unable to progress witness proofing in a meaningful manner.”

I am bound to say that I cannot accept that. As I pointed out to Mr Livesey QC and Mr Rowlands, this is a case brought by Fitzpatrick. Fitzpatrick have to make the running because they are the Claimant. In order to prepare witness evidence in relation to the claim, the first and most important matter for the witnesses to deal with are the nuts and bolts of Fitzpatrick’s own claim. Of course they will have to deal with Tyco’s case and of course that will involve a consideration of the new documents. It may be that it will involve additions or omissions from that which had been in the pleadings before, but the vast bulk of any witness statement in this case prepared by Fitzpatrick should and could have been in place by now. The fact that it is not, so it seems to me, must be Fitzpatrick’s responsibility. I do not consider that it is appropriate for a claimant in their position to be so reactive rather than proactive. Mr Livesey QC made the point that they were reluctant to spend very much money on the preparation of witness statements until they had found out the answer to the clause 3.4 point. I find that slightly surprising, given that the clause 3.4 point did not really emerge during the preliminary issues until the final afternoon. Moreover, since I indicated to the parties the result of that issue on 16th May, two months have now gone past in which that work on those statements could have been carried out.

I hope that those comments are not unfairly the result of hindsight. It does seem to me that, once Ramsey J had ordered that timetable, it was incumbent on both parties to prepare the witness statements in accordance with it. Obviously neither party has achieved that, so, to that extent, both parties are in breach, but it is plain from Mr Bessey’s statement, as I have indicated, that Tyco are properly far more advanced with that than Fitzpatrick.

As to the question of expert evidence, it is very difficult for me to be able to say where Fitzpatrick are in terms of their expert evidence, but I have already made the point that Mr Cross was only appointed recently. Again, I do not get the impression from the letters from the experts that they are particularly far advanced in relation to their preparation. Therefore, I do consider that this application, first foreshadowed on 13th June (in other words at a time before Tyco provided their new pleading), has inevitably had to be made today because of those difficulties. For the reasons I have given, I consider that in real terms those difficulties affect both parties because the timetable simply cannot be shoehorned into the time that is left available. But that does not, it seems to me, exonerate Fitzpatrick from the position they are in, namely that they need an adjournment of their own claim because of delays in the preparation of certain key parts of their evidence.

All of that said, I also consider that there is a subsidiary reason for suggesting that there have been and will be further delays and that those further delays mean that the timetable is not capable of being achieved in any event. That subsidiary reason arises out of the Tyco amended Defence and Counterclaim. I am not, for the purposes of this judgment, going to go through each of the points that Mr Rowlands identified and to which Mr Thomas QC responded. I consider that, in relation to some aspects of it, Mr Thomas QC was correct to damn Mr Rowlands’ points with the slightly faint praise that it was a “nice forensic exercise”. But, that said, I conclude that some of the matters in the new Tyco claim are new and different to points raised before, and will require extensive further work on the part of Fitzpatrick. I am thinking in particular of the changes to the delay event charts, which seem to me introduce completely new periods, and a certain number of new reasons for delay. Given that each delay claim will turn on the reasons for delay and the period of delay caused, changes to both are inevitably going to have a radical effect. I also consider that some of the other parts of the pleading dealing with delay are also significantly different. This is not a minor part of the case given that, as I have indicated, the Counterclaim in relation to delay is about £4 million of the £6 million-odd currently claimed by Tyco.

Perhaps another example of the effect of these changes is that Tyco’s original case in relation to design approvals was to say that they only had to have 65% of the design ready at the outset; that they complied with that requirement; and, therefore, they denied their breach. That was a matter dealt with on the preliminary issues and the 65% case was rejected. Indeed, it was not really pursued. By way of their amended case, Tyco now say that, to the extent that they did not have everything ready, that was because of acts of prevention on the part of Fitzpatrick. That is a new case which will need to be dealt with as a matter of fact. Therefore, that is another reason why these delays have come about, and it is another reason why the trial, in my judgment, cannot take place in November.

Accordingly, I conclude that the trial cannot go ahead on 10th November and will have to be adjourned until 21st April 2009. Because I have concluded that the primary reason for Fitzpatrick’s difficulties is self-inflicted but that there is a further subsidiary reason which traces back to Tyco’s pleading, it does seem to me that the appropriate thing for me to order, in addition to the adjournment, is that Fitzpatrick pay a percentage of Tyco’s costs of and occasioned by the adjournment. I should say that, as a preliminary stab, I have in mind the figure of 60%, that is to say that Fitzpatrick must pay 60% of Tyco’s costs of and occasioned by the adjournment, but, since I have not invited the parties to make submissions on the percentage, I indicate that as a preliminary view and I invite both counsel to address me if they consider that the 60% is too much or too little.

My view is that Tyco were entitled to oppose the application. It was always going to be a bit difficult because, on any view, their proposed timetable is very, very tight and, as I have found, too tight to be realistic. But it seems to me appropriate that I should order the costs to be paid in the percentage that I have indicated. The order will be in respect of the costs of and occasioned by the adjournment and will therefore include the costs of today. Having heard both counsel on it, I do think that my 60% figure was right and so that is the order that I make.