Octoesse LLP v Trak Special Projects Ltd

This matter concerns an adjudication which arose out of a project for the construction of residential and retail units in Long Acre, London WC2. The Claimant, Octoesse LLP (“Octoesse”), was the Employer and the Defendant, Trak Special Projects Limited (“Trak”), the Contractor. The parties entered into a contract dated 27 November 2013 on the standard form JCT Intermediate Building Contract (IC 2011). There were bespoke amendments to the standard form but these are not material to the present dispute. The Contract Administrator (“the CA”) was Works Architecture (and, in practice, Mr Southgate, a director of Works Architecture).

The Works were certified as practically complete on 13 February 2015. On 4 May 2016, a final certificate was issued for payment. On 16 May 2016 a pay less notice was issued deducting liquidated damages of £89,250. Trak’s case was that that pay less notice was invalid.

Trak commenced an adjudication claiming that further monies were due to them. It is not clear to me on what basis the sum claimed in the adjudication was calculated but the end result was that the adjudicator, Mr Bingham, in a decision made on 10 August 2016, decided that Octoesse was not entitled to deduct liquidated damages, that the pay less notice was invalid and that Octoesse should pay Trak £59,991.83 plus interest and other sums.

That decision turned on the proper construction of clauses 2.22 and 2.23 of the contract. Octoesse commenced these Part 8 proceedings seeking, in summary, declarations as to the construction of those clauses; that the pay less notice dated 16 May 2016 was valid; that Octoesse was entitled to deduct liquidated damages; and that the adjudicator’s award was unenforceable. Trak counterclaimed the sums due in accordance with the adjudicator’s decision and further sums which it claimed were due on invoices. CPR Part 8.7 provides that, where the Part 8 procedure is used, Part 20 (counterclaims and other additional claims) applies, except that a party may not make a Part 20 claim without the Court’s permission. So far as I am aware, Trak did not make an application for permission to bring a Part 20 claim but, at the hearing on 17 October 2016, Octoesse was sensibly content for me to deal with the counterclaim for payment of the sums awarded by the adjudicator. Trak did not pursue its claims on invoices.

At the conclusion of the hearing, I gave judgment in favour of Trak and ordered payment of the sums awarded in the adjudication. Written reasons were to follow and these are my reasons.

Clause 2.22 provides as follows:

“If the Contractor fails to complete the Works or a Section by the relevant Completion Date, the Architect/Contract Administrator shall issue a certificate to that effect. If an extension of time is made after the issue of such a certificate, the extension shall cancel that certificate and the Architect/ Contract Administrator shall where necessary issue a further certificate.”

Clause 2.23 provides as follows:

“.1 Provided:

.1 the Architect/ Contract Administrator has issued a certificate under clause 2.22; and

.2 the Employer has notified the Contractor before the date of the Final Certificate that he may require payment of, or may withhold or deduct, liquidated damages,

the Employer may, not later than 5 days before the final date for payment of the amount payable under clause 4.14, give notice to the Contractor in the terms set out in clause 2.23.2.

.2 A notice from the Employer under clause 2.23.1 shall state that for the period between the Completion Date and the date of practical completion the Works or that Section:

.1 he requires the Contractor to pay liquidated damages at the rate stated in the Contract Particulars, or a lesser rate stated in the notice, in which event the Employer may recover the same as a debt; and/or

.2 that he will withhold or deduct liquidated damages at the rate stated in the Contract Particulars, or at such lesser stated rate, from sums due to the Contractor.

.3 If the Employer in relation to the Works or a Section has notified the Contractor in accordance with clause 2.23.1.2 that he may require payment of, or withhold or deduct, liquidated damages, then, unless the Employer states otherwise in writing, clause 2.23.1.2 shall remain satisfied in relation to the Works or Section, notwithstanding the cancellation of any certificate under clause 2.22. ”

Under the contract, the Date for Completion stated in the Contract Particulars was 22 September 2013 (presumably a typographical error for 2014). The date was extended to 29 September because of a delay in commencement of the Works. The Works were not complete by that date and, on 3 October 2014, the CA issued a certificate of non-completion.

As I have said, the Works were certified as practically complete on 13 February 2015. On 3 July 2015 Trak submitted a claim for an 18 week extension of time. By letter dated 9 November 2015, the CA granted Trak an extension of time of 9.5 weeks. No further certificate of non-completion was issued.

As set out above, Octoesse gave notice of their intention to deduct and did deduct liquidated damages from the sum stated to be due in the final certificate.

In the adjudication, and in these Part 8 proceedings, Trak argued that Octoesse was not entitled to make that deduction. Under clause 2.23.1, it was an express condition of Octoesse’s entitlement to give notice under clause 2.23.2, and to deduct liquidated damages, that the CA had issued a certificate under clause 2.22. That condition had not been met. The effect of clause 2.22 was that the certificate of non-completion issued on 3 October 2014 had been cancelled when a further extension of time had been made in November 2015. No further certificate had been issued. The adjudicator agreed.

Octoesse argued that the purpose of clause 2.22 was to put the Contractor on notice that the Employer may levy liquidated damages. The argument emphasised the words “where necessary” in clause 2.22. Octoesse argued that it was not necessary, on the facts of this case, for the CA to issue a further notice of non-completion. That, said Octoesse, was because practical completion had already been achieved before an extension of time was made, so Trak was already fully aware of its potential liability for liquidated damages.

In my judgment, Octoesse’s argument simply fails to give effect to the wording of both clause 2.22 and clause 2.23.

Clause 2.22, by the use of the word “shall”, imposes mandatory obligations on the CA:

In any event, since the effect of the making of an extension of time is to cancel any certificate previously issued, Octoesse could not rely on the October certificate as fulfilling the condition in clause 2.23.1.1 even if there was any merit in the argument that the issue of a further certificate of non-completion was not necessary.

On behalf of Octoesse, Mr Wygas also placed some reliance on clause 2.23.3. It does not seem to me that that clause assists his argument at all. This clause has the effect that the Employer’s notification under clause 2.23.1.2 survives, so to speak, the grant of an extension of time and issue of a further certificate of non-completion. If the Employer has given notice of his intention to deduct liquidated damages but an extension of time is then made and a further certificate of non-completion issued, the Employer does not need to give notice of his intention again. The conditions in both clauses 2.23.1.1 and 2.23.1.2 are thus satisfied. There is a clear distinction here in the treatment of the Employer’s notice under clause 2.23.1.2 and the certificate of non-completion. This clause cannot be construed as providing that a certificate of non-completion survives a further extension of time if the issue of a further certificate of non-completion is (on Mr Wygas’s argument) not necessary.

It follows that, in the light of the extension of time given in November 2015, the certificate of non-completion was cancelled; no further certificate was issued; and absent such a certificate, the condition in cl. 2.23.1.1 is not fulfilled and Octoesse is not entitled to deduct liquidated damages.

For these reasons, I declined to make the declarations sought and ordered payment of the sums awarded by the adjudicator.

At the conclusion of the hearing, having been successful in the enforcement of the adjudicator’s decision, Trak asked for its costs to be summarily assessed. Octoesse could have no objection to that in principle but took issue with the recoverability of certain costs. I reserved judgment on these issues (on which a total of £3,350 turns) but made an order for an interim payment on account.

Miss Krista Lee, who appeared on behalf of Trak, was instructed on a direct access basis. Trak’s costs schedule stated that “The matter has been dealt with by the Defendant’s own in house legal department” which was not accurate or consistent with the instruction of counsel on a direct access basis. In fact, the company that had dealt with the matter was Wellesley Construction Services Ltd. “Wellesley” who act as construction claims consultants.

Mr Wygas’s properly took no issue with the recoverability or amount of counsel’s fees but his argument was that Wellesley’s costs were not recoverable in these proceedings. Those costs cover consideration of the Claimant’s claim and evidence; preparation of the Defence and a witness statement; instructions to counsel; liaison with the Court; and attendance at Court.

Mr Wygas’s argument relied on the decision of the Court of Appeal in Agassi v Robinson (Inspector of Taxes) (No.2) [2005] EWCA Civ 1507 and the terms of CPR Part 48.6. In summary the argument is this:

Points (i) to (iii) are not contentious but Trak disputes that the Agassi case precludes the recovery of the consultants’ costs in circumstances such as these. At and subsequent to the hearing a number of first instance decisions were drawn to my attention in support of that case.

This case arose out of proceedings relating to the tax affairs of the American tennis player, Andre Agassi, and Mr Agassi’s liability to assessment for taxation in the United Kingdom. There were proceedings before the special commissioners; an unsuccessful appeal by Mr Agassi to the High Court; and a successful appeal to the Court of Appeal. Mr Agassi, had throughout, the assistance of Tenon, experts in tax law. Tenon had briefed counsel before the special commissioners. It is unclear what role they had in the High Court litigation but they instructed counsel to appear in the Court of Appeal. Mr Mills of Tenon was a member of the Chartered Institute of Taxation and he instructed counsel under the Licensed Access Scheme. The decision with which I am concerned related to the costs of that appeal.

There was a live issue before the Court of Appeal as to whether Mr Agassi was a litigant in person. It is unnecessary for me to recite the detail of that argument here. In short the Court concluded that, since Tenon did not have the right to conduct litigation, Mr Agassi was the only person who could do so and he was therefore a litigant in person (despite representation by counsel). As I have said, it is not contentious that Trak is in the same position here.

There was also a live issue before the Court as to whether Tenon had acted unlawfully so as to render their costs irrecoverable. The Court of Appeal held that they had not acted unlawfully. They had not been doing any acts which only a solicitor could perform or holding themselves out as solicitors. In this context, the Court of Appeal relied on the decision of Potter J. in Piper Double Glazing v D.C Contracts [1994] 1 WLR 777. That case arose out of an arbitration in which the successful claimant had been represented by claims consultants. Under s.18(2) of the Arbitration Act 1950 costs were, unless the award directed otherwise, to be “taxable in the High Court” and RSC O.62 (in relation to costs) was to “have effect with such modifications as may be necessary” in respect of such costs. Potter J., sitting with assessors, upheld the Master’s award of the costs of the claims consultants. He considered that the provision that O.62 might be modified as necessary anticipated modification of the rules to allow recovery of costs properly incurred in arbitration and that the claims consultants’ costs were recoverable in principle since they had not acted as solicitors, although much of their work was of a type commonly done by solicitors.

Having found that Mr Agassi was a litigant in person, the Court then considered what costs were recoverable under Part 48.6(3) (the relevant part of which is now Part 46.5(3)). Following the decision of the Court of Appeal in United Building and Plumbing Construction v Kajla [2002] CP Rep 53, the Court held that sub-paragraph (a) was concerned with the litigant’s own time and disbursements which he had made which would have been recoverable if made on his behalf by a legal representative.

In respect of disbursements, the Court then said this:

“73

It is true that the rule refers to costs which would have been allowed as a disbursement if the disbursement had been made by a legal representative. But this does not require the court to make a fanciful hypothesis as to what disbursements a legal representative might have made. The rule contemplates allowing as costs only those categories of disbursements which would normally have been made by a legal representative. If the expenditure is for work which a legal representative would normally have done himself, it is not a disbursement within the language of CPR r 48.6(3)(a)(ii).

…..

75

It follows in our view that Mr Agassi is not entitled to recover costs as a disbursement in respect of work done by Tenon which would normally have been done by a solicitor who had been instructed to conduct the appeal. This means that Mr Agassi is not entitled to recover for the cost of Tenon providing general assistance to counsel in the conduct of the appeals.

76

But it seems to us that it does not necessarily follow that Mr Agassi is not entitled to recover costs in respect of the ancillary assistance provided by Tenon in these appeals. Mr Mills is an accountant who has expertise in tax matters, especially in the kind of issues that arose in the present case. It may be appropriate to allow Mr Agassi at least part of Tenon’s fees as a disbursement. It may be possible to argue that the cost of discussing the issues with counsel, assisting with the preparation of the skeleton argument etc is allowable as a disbursement, because the provision of this kind of assistance in a specialist esoteric area is not the kind of work that would normally be done by the solicitor instructed to conduct the appeals. Another way of making the same point is that it may be possible to characterise these specialist services as those of an expert, and to say for that reason that the fees for these services are in principle recoverable as a disbursement.

77

It seems to us that the dividing line between legal services and the provision of expert advice in this area is a matter of some difficulty. Specialist accountants such as Mr Mills may well have far greater expertise in esoteric areas of tax law and practice than solicitors. ….”

The issue of whether any part of Tenon’s fees was recoverable on this basis was left to detailed assessment.

In my judgment, Agassi is not, therefore, authority for a general proposition that costs of claims consultants or other consultants who give advice and support in litigation can never be recovered. The principles I derive from that decision are these:

It is in this area of specialist assistance where there is a difficult dividing line between what is and is not recoverable. Although Dyson LJ characterised the kind of specialist assistance that he had in mind as “work that would not normally be done by the solicitor instructed”, it is equally clear that he had in mind matters such as briefing counsel which, on the face of it, is very much the work normally carried out by a solicitor. These two potentially conflicting approaches can be reconciled, if it is recognised that, in particular circumstances, a solicitor might well normally not carry out work himself but rely on a specialist, even though the work in its broad description might be “solicitors’ work”.

I consider that this is the approach that I should take in considering what costs would have been recoverable as solicitors’ disbursements. It seems to me that that approach allows for the fact that what are normal solicitors’ disbursements may vary according to the nature of the case or the type of case and reflect both differing norms in different areas of practice and indeed changes in practice.

Against this background, I observe that there are distinct features of adjudication and adjudication enforcement proceedings which can and should be taken into account in considering what disbursements would be recoverable if made by solicitors and which are, in consequence, recoverable by a litigant in person.

Firstly, in the adjudication process itself, parties are often represented by claims consultants or other consultants. When enforcement proceedings are brought, the grounds for resisting enforcement are often founded on issues such as jurisdictional challenges or breach of natural justice arguments relating to the conduct of the adjudication. Even if solicitors are instructed on the enforcement proceedings, and particularly where they have not acted in the adjudication, it would, therefore, be common practice, and in many cases necessary, for them to seek the assistance of the consultants involved in the adjudication.

Secondly, this Court has put in place standard procedures for dealing with adjudication enforcement claims which abridge time limits and enable applications for summary judgment to be heard promptly. That is a further reason why, if solicitors are instructed at that stage, not having been instructed before, it would be entirely normal, and indeed necessary, for them to seek the assistance of those who represented the parties in the adjudication. Given the accelerated timetable in such cases, it would not be realistic to constrain what assistance might be regarded as normal or necessary. For example, whilst solicitors would normally draft witness statements, in the circumstances of adjudication enforcement, it might be equally normal for them not to do so but to rely on those with specialist knowledge not of the adjudication process generally but of the particular adjudication.

A number of cases were cited to me in which the costs of claims consultants have been recovered where they have provided services in connection with the enforcement of an adjudication. I take those cases chronologically.

In Mead General Building v Dartmoor Properties [2009] EWHC 200, Mead were represented by counsel instructed (either on a direct access or licensed access basis) by claims consultants. Having allowed Mead’s application for summary judgment, Coulson J. summarily assessed Mead’s costs including those of the claims consultants. The defendant did not appear and there was clearly no issue taken with the recoverability of these costs in principle.

I was referred (very much in passing) to the decision of Akenhead J. in Dawes v. Treasure and Son Ltd. [2010] EWHC 3218. In Dawes there were court proceedings arising out of an arbitration (although there had been an earlier adjudication). Claims consultants who had acted throughout instructed counsel to act in these proceedings (including drafting pleadings and appearing) and a proportion of their costs was recovered. There appears to have been no issue taken that those costs were not recoverable in principle.

In NAP Anglia Ltd. v Sun-Land Development Co. Ltd. [2012] EWHC 51, Edwards-Stuart J. had given summary judgment in favour of NAP (but with a partial stay of execution) and now had to deal with the issue of NAP’s costs. NAP had been represented in the adjudication by claims consultants, Henry Cooper Consultants (“HCC”). On the application for summary judgment, NAP instructed solicitors, Prettys, but HCC continued to provide assistance to Prettys. The same issue that I have to deal with in this case arose, namely whether HCC’s costs were recoverable in principle.

It does not appear from the judgment that the Agassi case was cited to Edwards-Stuart J. He was referred to Piper Double Glazing and to R (Factortame) v Secretary of State of Transport [2003] BLR 1 in which the costs of accountants carrying out work under the direction of solicitors were recovered. From these two cases, Edwards-Stuart J derived the following propositions [at 20]:

“From these two authorities I derive the following three propositions:

(1)

Sums paid to a third party incurred solely for the purpose of advancing or assisting with the prosecution or defence of a claim may in principle be recoverable as costs provided that a third party is not doing any acts that only a solicitor can do and/or does not do any act whilst purporting to be a solicitor.

(2)

It does not matter that the work done by the third party, even if it employs non-practising barristers or solicitors to do it, is work of a type commonly done by solicitors.

(3)

The costs of a third party engaged in these circumstances may be assessed by the court. To be recovered, they must have been reasonably incurred and be reasonable in amount.”

He therefore rejected Sun-Land’s case that HCC’s costs were not recoverable in principle and turned to the question of whether those costs were reasonably incurred and reasonable in amount. In that context he said this:

“23.

In my experience it is not that common for solicitors to be instructed for the first time in a dispute following the conclusion of an adjudication and solely for the purpose of taking proceedings to enforce the adjudicator’s decision. Accordingly, this is a factor which must be borne in mind when considering the reasonableness of the costs in question. I do not accept the submission made on behalf of Sun-Land that such an arrangement inevitably involves duplication of work and therefore of time. On the contrary, I regard it as fairly self-evident that it would be more economical, in terms of both time and money, for NAP’s solicitors to take advantage of HCC’s already acquired knowledge of the documents and the issues in the adjudication, rather than read themselves into the documents from scratch. HCC will (or should) have had the facts at their fingertips and been familiar with the documentation produced in the adjudication, as well as being broadly aware of what other documents might be in the possession of NAP.

24.

Nevertheless, I do not consider that the court can adopt a blanket approach to the assessment of the costs claimed in respect of HCC: they need to be looked at on an item by item basis. It is of course obvious that NAP should not be able to recover costs incurred by HCC unless those costs were directly attributable to the conduct of this application and are not greater in amount and [sic] the costs that would have been incurred by the solicitors if they had done the relevant work themselves.

25.

For example, I consider that it would be reasonable for Prettys to ask HCC for its views on the contents of a witness statement served on behalf of Sun-Land in response to the application if that witness statement raised matters of detail in relation to the conduct of the adjudication or the issues raised in it.”

In the light of what is said in Agassi about disbursements, the second of Edwards-Stuart J.’s propositions may be too broadly stated. In the context of adjudication enforcement cases, however, what is said about the experience of the court in relation to the use of claims consultants is entirely in line with the views I have expressed about the particular features of adjudication enforcement proceedings and the application of the Agassi decision in this context.

I was also referred to the decision of His Honour Judge Grant in MSJ Associates Ltd. v Brett Halliday (2013, unreported) but since the focus of that decision was on whether the claims consultants were carrying out reserved services, it does not assist me here where there is no argument of that nature.

Further, following the hearing, I considered the decision of Stuart-Smith J in Devon County Council v Celtic Bioenergy Ltd. [2014] EWHC 309. The proceedings involved an application for declarations relating to an adjudication. The defendant was represented by solicitors and counsel but a large proportion of the work was carried out by claims consultants. Stuart-Smith J. held that it would be wrong in principle to allow the defendants to recover more for the claims consultants’ work than they would have done if the work had been carried out by solicitors. No point appears to have been argued, however, that the costs were not recoverable in principle.

I was also provided with the decision of Chief Master Marsh in Campbell v Campbell [2016] EWHC 2237 which considers aspects of a litigant in person’s entitlement to recover for disbursements and legal services. This decision did not seem to me to provide any particular guidance on the issue I have to deal with.

In my judgment, costs incurred by claims consultants assisting a litigant in person will usually be recoverable on adjudication enforcement proceedings, assuming that the same consultants have represented the party in the adjudication. Given the particular aspects of adjudication to which I have referred and to which Edwards-Stuart J referred in NAP Anglia, such costs will usually fall within the meaning of disbursements in CPR Part 46.5(3)(a). The apparent acceptance of this recoverability in principle in proceedings in the Technology and Construction Court relating at least to proceedings arising out of adjudication reflects the knowledge and experience of those involved as to the scope of work normally carried out by solicitors and consultants in this scenario.

In this particular case, the costs were incurred initially in defending Part 8 proceedings which went to the substance of the dispute in adjudication but it would, in my view, be unrealistic to treat these proceedings differently from enforcement proceedings brought by way of a summary judgment application. Had solicitors been instructed to conduct the litigation, it would have been both practical and normal for them to seek the assistance of those who had acted below and were familiar with the factual background, the conduct of the adjudication and the arguments that Octoesse had advanced. Those disbursements would, subject to assessment, have been recoverable following the decision in NAP Anglia.

Turning then to the specific sums claimed, the sums claimed are all entirely reasonable and it was not argued otherwise. However, on the basis set out above:

Mr Wygas took a further point that the Court fee of £5,257.34 was not recoverable as it was only payable because of the counterclaim on the additional invoices which was not, in the event, pursued. My understanding is that the court fee is payable if a monetary counterclaim is made in proceedings, so that a court fee was or would have been payable in any event because of the counterclaim for the payment of the sum awarded in the adjudication. The schedule of costs annexed a letter from Trak to the Court enclosing a cheque for the court fee and explaining that it had been calculated as 5% of £105,146.80. That was the total sum claimed including the further invoices in the sum of £39,807.17. I agree with Octoesse that Trak should not recover the 5% court fee relating to this latter amount but I see no reason why Trak should not recover the balance of the fee, namely £3,266.98.

I, therefore, summarily assess the Defendant’s costs in the total sum of £10,866.98 (excluding VAT).