The Bullring Limited Partnership & Ors v Laing O'Rourke Midlands Ltd

This is an application by the defendant for early specific disclosure. In order to deal with the application properly I need to set out the background in rather more detail than is usual for an application of this sort. I then address the law after which I deal with the particular items of disclosure which are sought.

The building in question is the iconic Selfridges building in Birmingham, the showpiece for the regeneration of Birmingham city centre. It is said that there is cracking damage to the surface of the exterior of the building. It is also said that there is water ingress. The claimants are the developers/owners/leaseholders of the relevant buildings; the defendant was the contractor. There are parallel proceedings against two consultants.

The building was completed some time ago. The defendant says that practical completion was certified on 15 August 2003. It appears from the documents that problems with water ingress and cracking were first identified in around 2011. Matters have proceeded slowly since then.

In April 2015 the claimants notified the defendant of the problems by sending a report, known as “the Workman report”, which is very detailed, dealing with those two aspects of the complaint.

On 18 August 2015 the defendant sought further documents from the claimants. There were a total of 17 categories. It is those same 17 categories which form the basis of the application today, albeit very recently some of those have fallen by the wayside for one reason or another. It is therefore of note that the application made by the defendant in these proceedings is made some 15 months after they first sought those same 17 categories of document.

Also in August 2015 (indeed, the day after the documents had been requested) the parties entered into a Standstill Agreement. One of the purposes of that, so it was said, was to try and resolve the dispute. After entering into the Standstill Agreement the claimants indicated that they did not object to providing relevant further information and documentation. However, thereafter, the request for documents was not acted on by the claimants. The request was repeated in September, October and December 2015. The defendant made it plain that they wanted these documents because they said they were relevant to any consideration of their liability and to the potential causes of the defects.

Eventually, in February 2016, the claimants responded and, contrary to their previous helpful stance, they said that the defendant would have to show how the provision of the documents requested would help the investigations. At that time the investigations were the claimants’ own. The response was therefore making it plain that, unless the documents helped with their own investigations, they would not be provided.

The defendant’s solicitors understandably became frustrated and they terminated the Standstill Agreement in early March 2016. That then meant that the claimants had to issue a Claim Form; they did that on 30 March 2016 but almost immediately issued an application ex parte for an order to stay the proceedings until January of next year. Although an order was made by Edwards-Stuart J, it had subsequently to be amended once the defendant became aware of the application and the order made. The upshot was that, as a result of the amendments to the order obtained by the defendant, the claimant was required to comply with the TCC pre-action protocol.

In the parallel proceedings the other defendants were seeking further time to respond to Letters of Claim and the like and so the claimants sought the defendant’s consent to extending time in these proceedings so that the timetable was the same in both actions. That would have meant that the Particulars of Claim not being provided until January 2017. The defendant wanted to see the Letters of Claim against the other defendants, but that was refused by the claimant. In the end Edwards-Stuart J, on 12 October, made various orders. One of them was that, although the formal Particulars of Claim would not be provided until January 2017 he required a draft to be served on the defendants in these proceedings. That has now happened. At para. 6 of his reasons for his order, Edwards-Stuart J said:

“There is not the slightest doubt that the claimants’ refusal to provide copies to the defendant of the Letters of Claim against the other defendants, whilst at the same time requiring those defendants to consent to the actions being managed together, coupled with the fact that the claimants did not make their applications until the day of the expiry of the stay was the principal cause of the failure by the parties in this action to agree appropriate directions.”

As a result he did not make a costs order.

The application for the specific disclosure of these 17 categories of document was then made on 3 October and was fixed for today. On 2 November Mr. Pickavance, the claimant’s solicitor, served a witness statement which addressed those 17 categories. It was the first time that the application for the 17 categories of documents had been the subject of a detailed response from the claimant. It was accepted that some of the documents could be and would be provided, but it was said that many of the others would not be provided.

The chronology, therefore, as I have just outlined it, is not a happy story. I have identified from the papers six separate concerns which I have about the history of the matter to date. I identify them because I am concerned about the potential unfairness to the defendant which has arisen from the claimants’ conduct of the proceedings to date. That is obviously a matter which may be relevant to the exercise of my discretion on the disclosure application.

The first and most obvious point is that the delays have been completely unjustified and unreasonable. If the defects first became apparent in 2011 it is quite unacceptable that a draft particulars of claim has not been prepared until the end of October/beginning of November 2016, more than five years on. The delay and that passage of time, therefore, has to be considered when one then moves on to decide what needs to be done in the future.

The second is that it was simply inappropriate for the claimants not to comply with the TCC pre-action protocol until they were ordered to by the court in April of this year. The whole point of the pre-action protocol was to try and do what the Standstill Agreement so patently did not: level the playing field between the parties so as to ensure that the matter was either capable of being resolved or, if not, the parties were at least operating on the same basic data.

The third point is that it is almost always inappropriate for a party to seek a stay of its own proceedings ex parte. That looks underhand. Here, I consider that it was underhand. It is not appropriate for a judge, with a pile of papers to address, to be put in a position of having to work out what the opposition to the application might be, if only other side knew about it. In this case, that misconduct was compounded by the fact that Mr. Pickavance’s statement in support of the stay was misleading because it omitted certain important facts.

Fourthly, of course, as Edwards-Stuart J has already found, it was unreasonable for the claimants to expect the defendants to agree to yet further delays because of the other proceedings, but not provide copies of the claim documents against those other defendants. I simply do not understand how that sort of approach could have been justified even internally within the claimants’ legal team.

Fifthly, there is the fact that, on looking at the documents generated by the claimants dealing with their own claim, there is no doubt that the level of information available to them has plainly improved, as one would hope, given the huge passage of time. But that improvement in understanding has been denied to the defendants because of the ongoing failure to provide them with information. Although it is not relevant to the application, I should say that, in my view, having looked at the draft Particulars of Claim, when the final version is served it will need a Scott Schedule.

Finally, I note that the claimant issued its own application for specific disclosure against the defendant. That was issued on 27 October and was addressed by the defendant by early November and is, I am told, now the subject of a consent order. There is an unmistakable feel of ‘tit for tat’ about that, another aspect of 1970’s litigation interest in the claimants’ approach that was inappropriate.

Those are all criticisms of the claimants’ conduct of this case, made even more surprising by the nature of the building and the alleged nature of the problems. I do think that something has gone awry thus far in the preparation of the claimants’ case.

I then turn to the application for specific early disclosure and the authorities. I have been referred to a number of authorities; it is unnecessary to set them all out. The starting point for this is the leading case of Black v Sumitomo [2001] 1 WLR 1562. There are also a number of other important first instance decisions, including Parker v CS Structured Credit Fund Ltd [2003] 1 WLR 1680, Marme Inversiones 2007 SL v Royal Bank of Scotland [2015] EWHC 173 (Comm) and two decisions of Vos J (as he then was), Alstom Transport v Eurostar International Ltd [2010] EWHC B32 (Ch) and Arsenal Football Club v Elite Sports Distribution Ltd [2002] EWHC 3057 (Ch). In addition to those cases I was referred to my judgment in Roche Diagnostics Limited v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC).

It does not seem to me that, in reality, the parties are very far apart in terms of their formulation of the test that I should apply. Mr. Hargreaves formulates it in this way:

“Taking into account the overriding objective and the respective consequences of making or not making the order, whether, in all the circumstances of the case, the applicant has demonstrated that there is a proper basis for early disclosure as opposed to disclosure after close of pleadings.”

I think that is apposite, although I would say that, for a proper basis to be identified, there does need to be something important or significant which can be achieved by ordering early disclosure.

Mr. Hanham’s test is lengthier, with a number of stages, but in general terms I accept the majority of it. He says it has to fall within the probable ambit of CPR Part 31.5, and I agree with that. He says that the making of the order requires something ‘out of the ordinary’. As I have already said, I agree that there has to be a good reason to order early disclosure: ‘out of the ordinary’ may possibly overstate the nature and extent of the good reason for the order. This is not a pre-action disclosure case. Mr Hanham also says that the request must be for specific class of documents; I agree with that. He says that the reasons for the value of the early provision need to be analysed and measured; I agree with that too. Relevant considerations must be the overall importance of the issue and the impact upon the utility of the statement of case: I agree with both of those elements. Mr Hanham’s last two subspecies of matters to be considered concerned the question of costs. Obviously, cost is a matter that is relevant to any consideration of an application for specific disclosure. But I think Mr. Hargreaves is right to say that it is only one consideration. There is also the question of the effect of any order (or not making an order) on the timetable, on court time, and on other court users. Ultimately, it does seem to me it comes back to a question of proportionality and the justice of the individual circumstances of the case taking into account all of those relevant factors. That, then, is the law.

Then we come to the relevant categories. I can deal with category 4 first and separately because I consider the position there to be very straightforward. Category 4 seeks the relevant maintenance records. Maintenance records are going to be very important in this case because the location of the cracking may correlate with the locations worked on by the maintenance crew on what must be a rather difficult building to clean and maintain. The documents demonstrate an acknowledged potential correlation between the damage that has been suffered and the maintenance and cleaning systems. The Workman report makes that point and, in a different form, it is also referred to in the draft Particulars of Claim. It seems to me, therefore, that the maintenance records are potentially critical in this case to both sides. On that basis, given their importance, it seems to me that prima facie they should be the subject of early disclosure subject to the more general points arising out of the application of the relevant tests, to which I shall refer in a moment.

The documents in categories 7-9 and 11-14 are essentially concerned with complaints, reports, and investigations into the problems with the building. These points go to limitation. The defendant has been quite up-front about that. They say that the question of when complaints were made and when investigations were ordered is clearly going to be critical to the claim against them in tort (the claim in contract being, on the defendant’s case, already statute-barred). The limitation period may be triggered by the claimants’ knowledge of those problems or the date the physical damage actually occurred. Either way, the defendant says that these documents are relevant to that important aspect of the case and so they say that those should be provided.

There are then separate reasons put forward to further support early disclosure in some of these categories. I take, for example, category 7, where it is said that the defendant wants to see the complaints from Selfridges because there is a claim for an indemnity in respect of all claims made by Selfridges. If there is a claim for an indemnity, then the defendant is entitled to see what claims have been made.

In relation to those categories, that is to say 4, separately, and then 7-9 and 11- 14, having considered the tests noted above, I have concluded that (whichever test you apply) these documents should be the subject of an early disclosure order from the court. In broad terms, I consider on the evidence before me that any additional difficulties caused to the claimants are wholly outweighed by the advantages of early disclosure. There are, I think, six specific reasons why I have reached that conclusion.

First, it seems to me, that the disclosure of these documents, that is to say the maintenance documents on the one hand, and the complaints and reports/investigations on the other, are separate stand alone areas of disclosure. Accordingly, it would not be right to say that this is an exercise that which the Court is ordering to be done twice. It is simply an exercise being done early: two distinct categories of documents are being provided sooner than they would otherwise be. On the face of it, therefore, it seems to me that any extra costs to be incurred by doing it this way round would be modest. I notice that Mr. Pickavance has not dealt with costs save in his statement. Therefore, as I have said, on the material before me, I conclude that this would not add very much to the claimants’ costs.

Secondly, as to the extra time and trouble that this may cause, that is again not something dealt with in Mr. Pickavance’s lengthy statement. It does not seem to me, in the absence of any evidence of particular problems as to how these documents might be identified and found, to be a difficult task. There must be records; maintenance records on the one hand, complaint records on the other, which ought to be capable of being separately and easily identified. Indeed it would be astonishing if that were not the case, particularly given the nature of this building.

The third point is that, in my view, this exercise ought to have been done years ago. Take the maintenance records as an example. I have already said that the maintenance is potentially linked, in one way or another, to the damage. Therefore one would have expected the maintenance documents to have been carefully combed through in order for the claimants to reach their own view as to whether the problems were being caused by the maintenance, or whether there were cracks in a particular area of the roof where, from an engineering perspective, one would expect cracks if there were structural problems, which were not related to maintenance. Indeed, there is a third potential outcome, which is that in some way the design of the building for which the defendants are said to be responsible, meant that the maintenance was not properly designed or thought through. That may come back to the defendant. But, either way, it seems to me plain that those documents ought to have been foregathered years ago.

The same analysis applies to the complaint documents. Complaints are always relevant in defects cases because the claimants always wish to rely on them to demonstrate the practical consequences of what has gone wrong. In a case where a lengthy period has gone past between completion and the complaints, they are also relevant for limitation purposes. Again, it seems to me that those documents ought to have been put together years ago and the claimants cannot now complain if they have to do that exercise rather more promptly that they would have liked. The claimants have had an enormous period of time to put together their claim in this case and they ought already to have undertaken this aspect of the preparation work.

Fourthly, I think Mr. Hargreaves is right to say that this is a good opportunity for the disclosure work to be done because, in relation to these proceedings, nothing is happening other than the finalisation of the points of claim. Everybody else is waiting for the response of the other defendants in the other proceedings. It seems to me that this is a good opportunity for the early disclosure work to be done. Of course, the corollary of that is that after January 2017, if it were done by way of normal disclosure, then doubtless there would be a whole host of other things that also had to be done. So actually it would be less disruptive for these separate categories of documents to be searched for and obtained now.

Fifthly, I am in no doubt that the early provision of this information and documentation (which, as I say, ought to have been provided years ago), will narrow the issues and will ensure a level playing field in terms of a common database. It will allow both parties and their experts to be operating on the basis of the same material in respect of maintenance, and the allegations and counter-allegations that will come out of that. Similarly the questions of actual date of damage or knowledge of damage which are relevant to limitation will also become much more obvious. At the moment, they have not been provided, and the court can and should order that they be provided now.

Finally, it seems to me that this order for early disclosure does provide the defendant with at least some of the benefits of the lengthy periods of evidence- gathering which the claimants have already enjoyed. I made the point that the claimants are in a position where, five years after the matter was first being investigated, they have still only provided a draft Particulars of Claim. In those circumstances, it does seem to me that it is appropriate to ensure that the defendant, who sought these documents 15 months ago, has at least some of the benefits of all of the work done by the claimants during those periods.

There was a suggestion in Mr Hanham’s submissions that this application could and should be dealt with in an alternative way, and no order made. The difficulty with that is that this request was made 15 months ago. It was only suggested on 2 November 2016 that there may be other ways of approaching it. There has been, as Mr. Hargreaves said, a failure of co-operation on the part of the claimants. Therefore I have little sympathy with the claimants now seeking to say that in some way the order ought to be amended or modified so that they do not have to bear the full brunt of disclosing these documents early. On a related topic, Mr. Hanham said that there were issues as to how the requests were formulated. Again, the claimants have had 15 months to come back on the question of formulation and have failed to do so. Again, it cannot be said that in some way the court should not now make the order that is sought.

Finally, in relation to modifications or alternative wording, the point was made that some of these documents (for instance, the maintenance records and the complaints) could be limited to the documents that were given to Workman for the purposes of their report. This is an approach that Mr. Pickavance advocates in more than one of his statements, because he seeks to make a detriment out of what I consider to be a benefit, namely that the defendant is making the same application now as they made 15 months ago. The difficulty with that submission, it seems to me, is that the Workman documents are likely to be just a fraction of the documents which fall into these categories. In any event, if there were separate documents on which the Workman report was prepared, why were they not provided years ago? Again, it seems to me, it would be wrong now to water down the order sought by the defendants by reference to a modification which the claimants have never before suggested. It does not seem to me that there is any real difficulty in the formulation of these categories.

I have also said that any practical difficulties that the claimants may face in complying with this Order have not been dealt with in Mr. Pickavance’s statements. That is because he has been fighting the principle of the early disclosure of these documents as opposed to looking at what can or cannot be done logistically. That may be unfortunate, but I can only address the evidence that I have. The only way in which I can account for the potential problem of compliance is to adopt this course. I shall make the order sought. Clearly those documents will have to be disclosed by a particular date, and I will hear submissions on that date. It would also be appropriate to give the claimants liberty to apply as to the practicalities of carrying out that order if it becomes apparent that there is some logistical difficulty (which is not currently in evidence because these matters have not been considered) which might make compliance with the court’s order impossible. So I will make the order sought, but I will give the claimants liberty to apply to vary either the terms or the date once the early disclosure exercise commences.