DPM Property Services Ltd v Emerson Crane Hire Ltd

INTRODUCTION

In these proceedings, the claimant DPM Property Services Limited (whom I shall call “the appellant”) claims the balance due for work carried out for and on behalf of the defendant, Emerson Crane Hire Limited (whom I shall call “the respondent”). The work was carried out at two properties: the respondent’s yard at Freshwater Road, Dagenham, and a residential property at Fairlawns Close, owned by a director of the respondent company. The claim is for £115,220.

The respondent counterclaims for defects. At paragraph 33 of their pleading the sums claimed are £4,895 plus VAT in respect of Fairlawns Close, and £160,175 plus VAT in respect of Freshwater Road. It is the latter counterclaim which is at the heart of the appeal. The lump sum figure of £160,175 was not broken down, and comes from a quotation received many years ago by the respondent, which has long since been superseded.

The claim and counterclaim are due for trial in January 2018 in the Central London County Court, in the TCC list. The trial has been fixed for some time (having been adjourned twice), with a 5 day time marking. Everyone understands that, given the issues, that is already a very tight timetable.

At the PTR on 25 October 2017, the judge made a series of orders. One allowed the respondent to rely on a new liability expert’s report from Mr Harding, but deleted those parts of the report to which the appellant objected. Another permitted the respondent to rely on a new quantum expert’s report of Mr Ashley Woods dated 29 September 2017 and, in consequence, permitted the respondent to pursue counterclaims for losses totalling £332,671.34. However, this was on the basis that the judge restricted the respondent’s maximum entitlement to the originally pleaded sum of £160,175 plus VAT. The appellant seeks to appeal those parts of the judge’s order relating to Mr Woods’ new report.

The new routes of appeal mean that this appeal has to be heard in the High Court. Because the original case is in the TCC list in the Central London County Court, it was considered appropriate for the TCC to deal with the appeal. In view of the imminent trial, it has been heard as a matter of urgency, with the substantive appeal being dealt with at the same time as the application for permission to appeal. I am very grateful to both counsel for their clear submissions today.

It is necessary to set out in some detail the somewhat convoluted procedural history of the counterclaim. I do that in Section 2. I deal with the relevant principles in Section 3. In Section 4 I deal with the issue of delay. Thereafter, in Sections 5 and 6, I deal with the first ground of the appeal, and in Section 7, I deal with the second ground. There is a short summary of my conclusions in Section 8.

THE PROCEDURAL HISTORY

The appellant’s claim form and particulars of claim were served on 26 August 2015. The defence and counterclaim was served on 6 October 2015. Paragraph 30 (and appendix 1) dealt with the allegedly defective work at Fairlawns Close. Paragraph 31 (and appendix 2) set out the allegedly defective work at Freshwater Road, and records the lump sum figure of £160,175 plus VAT. It is those defects which matter for present purposes. Appendix 2 was a report from a Mr Anthony Harding. It did not contain any details of costing.

On 11 December 2015, the judge ordered the service of a Scott Schedule in respect of the counterclaim. The first three items relate to Fairlawns Close; the remaining items 4-28 relate to the Freshwater Road defects (Footnote: ¹). Only two of these have a figure in the ‘Cost of Remedy’ column; the other 22 just say “TBC”. The two exceptions are item 8, in respect of the Birco Drain area 2, which is costed at £46,552, and item 22, the coldwater stopcock, costed at £371.

Consistent with the usual practice in the TCC, the judge ordered that the experts should meet without prejudice, and produce a Joint Statement identifying those matters on which they were agreed and those matters on which they were disagreed. Their subsequent experts’ reports were to be limited to those matters on which they were not agreed. Experience shows that, if properly followed by the experts, this type of order is an efficient and cost-effective means of focussing the experts on the real issues. Unfortunately, for a variety of reasons, that did not happen here.

Within a fortnight of the Scott Schedule, on 15 and 16 March 2016, the three experts (Mr Tarling for the appellant; Mr Harding and Mr Woods for the respondent) produced a Joint Statement arising out of their without prejudice discussions. That Joint Statement included the detailed comments of Mr Tarling, the appellant’s expert, on matters of both liability and costing. It included a column headed ‘Arnold Tarling’s Cost’. For a few of the items which, in the Scott Schedule, were identified by the respondent as “TBC”, Mr Tarling offered a figure, usually on the basis that liability was disputed and the need to remedy the defect was also disputed, but that if he was wrong on both of those points, then the sum he identified would be a reasonable cost for remedial works. Thus, for item 13, a ‘TBC’ item in the Scott Schedule, Mr Tarling’s figure was £1,940. Most of the ‘TBC’ items are recorded by Mr Tarling as being worth “£0”.

The Joint Statement also set out Mr Woods’ figures for each of the Scott Schedule items. His total was around £550,000 for Freshwater Road only. As a result of the discrepancy between the modest figures in the Scott Schedule, and the large sum in Mr Woods’ part of the Joint Statement, the appellant’s solicitors immediately wrote to the respondent’s solicitors to object, and amongst other things, they requested a proper application to amend the counterclaim and/or the Scott Schedule. The relevant correspondence was set out at paragraphs 12-17 of the judge’s later ruling in January 2017 (to which I refer below). The respondent’s solicitors’ email of 7 June 2016 made clear that the respondent did not intend to amend.

In the summer of 2016, the experts exchanged reports. Mr Tarling’s report dealt with both liability and quantum. On the respondent’s side, as foreshadowed in the Joint Statement, Mr Harding dealt with questions of liability, and Mr Woods dealt with quantum. Mr Woods’ report was dated August 2016. His report put the cost of remedial work at Freshwater Road at £506,551.95. That was partly because his report addressed new allegations of defective work, or necessary remedial work that were not in the Scott Schedule, and partly because he had put large sums against many of the ‘TBC’ items. There was a report from Mr Harding that also went beyond the items in the Scott Schedule.

Unsurprisingly, the appellant objected to this attempt to widen the scope and significantly increase the value of the Freshwater Road counterclaim. This led to a hearing before the judge on 18 January 2017. The judge broadly agreed with the appellant, as his careful ruling makes clear. At paragraph 34 of his ruling, he agreed that the appellant was entitled to a debarring order in respect of anything outside the Scott Schedule. At paragraph 4 of the resulting order, the judge stipulated:

“In relation to the defects claims pleaded in paragraphs 30-34 of the Defence and Counterclaim dated 6 October 2015, the Defendant is debarred from adducing evidence at trial (whether relating to an alleged breach of duty, cost of remedial work or otherwise) of any issue that is not particularised in the Scott Schedule of Defects completed by the parties and signed by the Claimant on 4 March 2016.”

That was taken word for word from the appellant’s proposed order. In addition to that, the appellant had sought an order that the reports of Mr Harding and Mr Woods should be amended to exclude all the evidence which fell outside the debarring order. At paragraph 35 of his ruling, the judge said that that was an order to which the appellant was entitled, but he said that the cost of complying with the order would be disproportionate and the trial judge could simply ignore those parts of the reports that went beyond the pleaded case.

I have great sympathy with the judge’s approach. But the problem was that each side had a different view of the effect of the debarring order, which would have been quickly exposed if the reports had been amended in line with the order. The appellant would have said, as it says now, that the only two pleaded items in the Scott Schedule amounted to £46,000 odd, so that was the limit of the counterclaim. The respondent would have argued that, whilst the material relating to new items had to be excised, any material that could be related back to the Scott Schedule items, regardless of quantum, could stay. In that way, the argument that has arisen much too late, first at the PTR and now on this appeal, would have been resolved, one way or another, in or shortly after January 2017.

After this, nothing relevant happened for months. Then, on 11 October 2017, just a fortnight before the PTR, the defendant issued an application in which they sought to rely on new reports from Mr Harding and Mr Woods. The latter’s report, dated September 2017, purported to put figures on all of the Freshwater Road defects which were previously recorded as “TBC” in the Scott Schedule. At paragraph 5.147, Mr Woods said that the total cost of the repairs was £332,671.34, another new figure for the counterclaim.

The appellant objected to the application, for the same reasons as before. Thus, Mr Oram’s submission at the PTR was that this was a belated attempt to do what the respondent had already been debarred from doing in January 2017, albeit in a total sum of £330,000 odd, as opposed to £500,000.

In relation to Mr Harding’s report, the judge gave a short ruling. The judge refused to allow the respondent to rely on those parts of Mr Harding’s report to which the appellant objected. That was on the express basis that “there is no good reason for the delay”. No appeal arises in respect of that part of the order made on the PTR.

There is, however, no similar ruling in respect of Mr Woods’ report. That creates a major difficulty with this appeal. The judge’s approach has to be gleaned from his exchanges with counsel and the order which he subsequently made. That is very unsatisfactory, for obvious reasons. The pressures on the judge at the PTR are plain, and I do not ignore them, but I consider that the need for a short ruling, on an issue which might determine the outcome of the whole trial, was paramount.

Doing my best with the transcript, it appears that the judge thought that the respondent should be able rely on Mr Woods’ new report, principally because counsel for the respondent confirmed that he was not seeking permission to increase the value of the counterclaim beyond the old pleaded figure of £161,000 odd. As counsel said (transcript, page 24 line 10), “we are stuck with that”. It also appears from his comments that the judge thought that the £330,000 compared favourably to the figure of over £500,000 odd which he thought the appellant was anticipating.

The transcript shows that, quite early on in his submissions, it became apparent to Mr Oram that the judge was going to permit the respondent to rely on the new report from Mr Woods, whatever he said. So Mr Oram submitted, not without some exasperation (page 29, lines 7-14):

“My final point is, if your Honour suggests that this report is going in, I am going to have to ask for some sort of declaration or ruling as to what precisely is the defendant’s claim we are meeting, because it is not in their Scott Schedule. Their figures have to presumably come from somewhere in a Joint Statement that is so nebulously drafted that there is almost no agreement between the experts, so in effect we are saying their pleaded claim is somewhere in their own report, and their application in my submission comes down to this. The defendant comes to Your Honour and says “our pleaded case is so woeful that you have to allow us to find it somewhere in our evidence.””

In the end, following further argument on this topic, the judge said (page 32, lines 19-24):

“What I am ruling is…well, yes, I will. I mean they can have (inaudible) – alright – and they can – it probably doesn’t matter that this – the figures are reworked into a schedule, that would be neater if they were, but I’m saying at the same time because of the way in which they conducted themselves they can never be awarded more than £165,000. You go into this trial knowing that the maximum that can be awarded against you is the figure pleaded in paragraph 33 [the £161,000 odd].”

Following that hearing, the relevant part of the judge’s order on the PTR was as follows:

“(2)

The defendant has permission to rely on the expert report of Ashley Woods dated 29 September 2017. Sections 4, 5 and 6 of the report are relied upon in substitution for the corresponding sections (sections 6, 7 and 9.3-9.5 respectively) of Mr Woods’ report dated 25 August 2016.

(3)

The defendant is permitted to advance trial claims for the losses set out on page 43 on Mr Woods’ report of 29 September 2017, totalling £332,671.34; but shall not be entitled to recover judgment in respect of those losses, in excess of the cap of £160,175 plus VAT pleaded in paragraph 33.2 of the Amended Defence and Counterclaim.”

The appellant seeks permission to appeal against paragraphs (2) and (3) of the order, and instead seeks an order that the respondent’s application to rely on the new report of Mr Woods be refused in its entirety. There are two grounds of appeal, the first coming in two parts. First, it is said the judge was wrong because:

“1.1

The learned judge wrongly concluded that the losses and claims included within the report of Mr Ashley Woods, dated 29 September 2017, had been particularised by the defendant in the Scott Schedule of defects completed by the parties and signed by the claimant on 4 March 2016 (“the Scott Schedule”). Those losses and claims had not been particularised, adequately or at all.

1.2

Alternatively, the learned judge failed to give effect to his earlier order of 16 January 2017 by which the defendant had been debarred from adducing evidence at trial (whether relating to any alleged breach of duty, cost of remedial work or otherwise) of any issue that was not particularised in the Scott Schedule.”

In his helpful skeleton argument, Mr Oram said that it was convenient to take these two elements in reverse order. I respectfully agree.

Secondly, it is said that the judge was wrong to treat the £160,175 plus VAT as a cap. The second ground of appeal is put in these terms:

“By allowing the Defendant to advance at trail claims for losses totalling £332,671.34, and requiring the Claimant to meet those claims despite the fact that the pleaded value of the counterclaim was limited to £160,175 plus VAT, the decision of the learned judge was wrong and/or constituted a serious procedural irregularity that was unjust within the meaning of CPR r.52.21(3)(a) and (b) it was wrong or unjust, in particular:

2.1

Because it failed to give proper effect to the debarring order made on 16 January 2017;

2.2

Because the action had been set down for trial on the basis that the claimant was meeting a claim for a lower sum, not £332,671.34, and there is insufficient trial time allocated to that larger claim to be fairly determined; and/or

2.3

Because of the late stage at which the ruling was made, namely at the pre-trial review.”

Accordingly, it was in ground 2 that the question of delay arose.

THE RELEVANT PRINCIPLES

It is trite law that a party applying for permission to appeal to overturn a case management decision must cross a high threshold. In Abdulle v Commissioner of Police of the Metropolis (Practice Note) [2015] EWCA Civ. 1260, the Court of Appeal reaffirmed that it would not lightly interfere with case management decisions of lower courts. This approach is perhaps summarised best by Lewison LJ in Broughton v Kop Football (Caymen) Limited [2012] EWCA Civ. 1743 at paragraph 51:

“Case management decisions are discretionary decisions. They often involve an attempt to find the least worst solution where parties have diametrically opposed interests. The discretion involved is entrusted to the first instance judge. An appellate court does not exercise the discretion for itself. It can interfere with the exercise of the discretion by a first instance judge where he has misdirected himself in law, has failed to take relevant factors into account, has taken into account irrelevant factors or has come to a decision that is plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree. So the question is not whether we would have made the same decisions as the judge. The question is whether the judge’s decision was wrong in the sense that I have explained.”

Of course, that passage presupposes that there is a clear decision by the lower court, including a record of the matters relied on by the judge in reaching the decision in question. As I have explained, in relation to the respondent’s application to rely on Mr Woods’ new report, that is not the case here. Accordingly, it is much more difficult for me to be sure that, at the PTR, the judge took into account all the relevant factors when arriving at his decision.

DELAY

I take the issue of delay first. Although it is raised as part of ground 2 of the appeal, and both counsel have dealt with it as such, I consider that it arises at the outset of this application and that everything else follows from it.

At the hearing of the appeal, Mr De Gregorio fairly accepted that the respondent has provided no good reason for their failure to adduce Mr Woods’ new report much earlier in the year. However, he maintained that the judge took the delay and the lack of any explanation into account when reaching that conclusion, so it was not a matter that could give rise to an appeal. He also said that delay and the absence of justification for it should not be seen as an overriding factor. I reject both submissions.

As to whether or not the judge took the point into account, there is no reasoned decision from the judge, so it cannot be said for sure that the judge took the delay and the lack of explanation into account when making the order he did. If anything, the evidence suggests that he did not. After all, the judge ruled that those parts of Mr Harding’s report to which the appellant objected were to be deleted. That was solely because of the delay and the absence of any good reason for it. On the face of it, precisely the same factors applied to Mr Woods’ new report, and it should have been ruled out for the same reasons.

As a result of the absence of a ruling by the judge, it is therefore necessary for me to consider afresh the issue of delay.

It is only necessary to consider the principles from Mitchell v News Group [2013] EWCA Civ 1537 and Denton v TH White [2014] EWCA Civ 906, to conclude that the delay in the provision of Mr Woods’ new report was critical. Mr De Gregorio properly accepted that he could not bring himself within those principles. Applying the three stage test in Denton, for example, I consider, in respect of the first stage, that the failure to provide a report for almost 10 months after the hearing in January 2017, and to seek permission to rely on it only at the PTR, was a serious and significant failure. That was particularly so since the judge had decided not to order the amendment of the earlier reports on costs grounds. That order presupposed that there would be no further reports, so it was incumbent upon the respondent, if it wanted to try and salvage something from its failure in January by putting in a new report, to provide such a report within weeks.

The second stage is easy. Mr De Gregorio accepts that there is no reason at all for the delay, whether good, bad or indifferent.

As to the third stage, it was not just and reasonable, in all the circumstances of the case, to allow the respondent to rely on the late report of Mr Woods. I consider that the appellant would be significantly disadvantaged if it was required to deal, in a matter of weeks, with issues which the respondent’s expert took almost 10 months to formulate.

Mr Oram complained that the judge had allowed the respondent to advance new figures, and expected the appellant to meet that new case, even though the time remaining before the trial was very short and the time available during the hearing itself was very limited. Indeed, Mr Oram went as far as to say that the appellant would have been better off acceding to the respondent’s application in January 2017, because then, at least, the appellant would have had proper time to get to grips with the new case. There is much force in both those submission.

For these reasons, therefore, I consider that the judge failed to take into account the question of delay. Having considered that matter afresh, I conclude that the delay of almost 10 months, and the absence of any reason for it, leads to the inevitable result that the appellant’s application to exclude Mr Woods’ report of September 2017 should have been allowed.

On one view, that is the end of this appeal, although I go on to consider the other arguments, in case I am wrong to regard the delay in the provision of Mr Woods’ new report as critical.

GROUND 1.2: THE DEBARRING ORDER

The appellant’s first argument before me, just as it was before the judge, is that the debarring order meant that the counterclaim in respect of Freshwater Road was limited to £46,923, namely the only items in the Scott Schedule that were not marked as being “TBC”. Essentially, Mr Oram argued that the debarring order of January 2017 froze the respondent’s counterclaim in that sum.

I am bound to note at the outset that this is not what the judge said he intended to do. During the argument in October 2017, when referring to the debarring order, he said:

“Well, I really can’t remember quite what was going through my head when I made the finding, but I am sure it wasn’t to make an order which prohibited the defendant from running any pleaded Scott Schedule item simply because it hadn’t been quantified.”

Of course, the fact that the relevant wording was that of the appellant, and not that of the judge, may explain this disjunct.

The order is set out at paragraph 13 above. Mr Oram said that the part in brackets clearly related to quantum just as much as alleged defects. Mr De Gregorio said that the debarring order prevented any additional defects from being added to the counterclaim, but it did not prevent the respondent from providing amended figures for the defects already set out there.

It is unfortunate that the parties are now arguing over the order as if it were a Deed; it is also unfortunate that each party’s interpretation is so extreme. On the one hand, it could be said that, if the appellant had wanted the judge to order that all items in the Scott Schedule which were marked “TBC” were effectively struck out (which is what they say the order means) they could have sought such an order in January 2017. On the other hand, the respondent knew that, having lost the arguments in January, it had no clear case on quantum at all unless it took prompt steps to resolve the difficulties.

Against that background, in my view, the appellant’s interpretation is to be preferred. The respondent’s construction does not give proper weight to the part in brackets and the express reference to “cost of remedial work”.

But let us assume that I was wrong about that, and the respondent was entitled to provide later cost figures for the items in the Scott Schedule. That still does not help the respondent, because it has never attempted to amend the Scott Schedule. Moreover, even on the respondent’s interpretation, any new information as to cost figures would have had to have been provided in accordance with the CPR and, as set out in the preceding section, the respondent wholly failed to do that.

For these reasons, I consider that ground 1.2 of the appeal has been made out.

GROUND 1.1: LOSSES HAD BEEN PARTICULARISED ALREADY

The appellant’s related complaint is that, although the transcript suggests that the judge considered that the losses identified in the new report from Mr Woods had already been particularised, he was wrong to do so. Again, the absence of a ruling has hampered the full analysis of this complaint.

There are, I think, two particular points to make. First, as I have demonstrated, the only pleaded figures for the Freshwater Road counterclaim are the lump sum of £160,175 and the Scott Schedule figure of £46,000 odd. No other losses have been pleaded or particularised, and any contrary view would therefore have been wrong.

Secondly, it is right that, in an attempt to persuade Mr Oram that what the respondent wanted to do was better than what it wanted earlier in the year, the judge said to him (transcript page 28, line 32) “you should be expecting a claim for £506,000”. As Mr Oram endeavoured to point out (but the interruptions meant that he was not fully able to do so) that was wrong; the judge had ruled out the £506,000 claim in January 2017 and nothing had been offered in its place until Mr Woods’ new report.

There is a wider point. The judge refused to allow the respondent to rely on Mr Woods’ original report in January 2017, when the losses would have been increased to over half a million pounds, but did allow the respondent to do exactly that in October 2017, just two months before trial, when the losses would have been increased to £330,000 odd. In my view, no consistency of approach can be discerned from those decisions: if the respondent could not rely on new material a year before trial, it should not have been allowed to do so just two months before trial.

It follows, therefore, that I also accept ground 1.1 of the appellant’s notice.

GROUND 2: THE SO-CALLED CAP

Mr Oram complained that the judge was wrong to regard the figure in the counterclaim of £160,175 plus VAT as a cap. He said that it was no such thing, and that the difficulty with the judge’s existing order was that, even though the amount capable of being recovered would be limited to that figure, the appellant still has to deal with entirely new figures extending up to £332,000 odd in a 5 day trial that had not been fixed on that basis.

Of course, I accept at the outset that the judge’s decision to identify this as some form of cap on the counterclaim was designed to assist the appellant: he was making it plain that, in all the circumstances that had occurred, it would be wrong and unfair for the appellant to face a counterclaim in excess of the originally pleaded figure. But I think Mr Oram is right to say that, whilst that was obviously helpful to some extent, it does create its own difficulties for the appellant. On the basis of the judge’s order, the appellant has to address at the last minute a variety of new figures, all as set out in Mr Woods’ new report. The cap would not affect preparation and trial time; it would not mean that each of those new figures would not have to be analysed and answered. The so-called cap would only come into play at the time of the judgment, and only if the counterclaim was otherwise in excess of that figure.

In my view, the judge was wrong to regard the figure in the original counterclaim as a cap. It is not uncommon for an originally pleaded sum to be exceeded, either by way of a subsequent Scott Schedule or by way of expert discussions: see paragraph 23 of the judgment of the Master of the Rolls in Loveridge v Healey [2004] EWCA Civ 173. Sometimes pleading points will not be taken; if they are, a timely amendment will almost always be allowed.

Thus it is rather old-fashioned and artificial to talk about a cap in a case of this sort, where there is a later pleading (the Scott Schedule) which addresses quantum. That is particularly so when, as here, the so-called cap figure is entirely arbitrary.

Accordingly, for what it is worth, I accept ground 2 of the appeal. As explained above, it was really the delay issue which emerged from this part of the appeal which troubled me the most, which is why I have dealt with it at the outset in Section 4 above.

CONCLUSIONS

For the reasons set out in Section 4 above, I consider that the judge did not take into account the critical issue of delay. If he had done so, he would have refused to allow the respondent to rely on the new report of Mr Woods, just as he refused to allow the respondent to rely on any parts of Mr Harding’s report to which the appellant objected.

For the reasons set out in Section 5 above, I consider that the appellant was right to regard the debarring order as extending to quantum as well as the defects themselves. But even if the respondent’s interpretation was right, the order still meant that they could only change the figures pleaded in the Scott Schedule if they made an application to do so in accordance with the CPR. They never did.

For the reasons set out in Section 6 above, I consider that, having refused the respondent’s attempt to rely on a report from Mr Woods that went way beyond the Scott Schedule in January 2017, the judge should have adopted precisely the same approach at the PTR in October 2017. There is an inconsistency of approach between the two decisions which I consider to be wrong in principle or a serious procedural irregularity.

For the reasons set out in Section 7 above, I consider that the judge was wrong in principle to regard the lump sum figure in the original counterclaim as a cap.

I therefore give the appellant permission to appeal, and I allow the appeal against paragraphs 2 and 3 of the judge’s order dated 25 October 2017. The respondent does not have permission to rely on the new report of Mr Woods dated September 2017.

In answer to a question from the court, Mr De Gregorio said that such a ruling might spell the end of the Freshwater Road counterclaim. I am unable to form a view about that, although I acknowledge that my ruling is adverse to the respondent’s overall position in the trial. However, I consider that this reflects the overall merits. The appellant has never been at fault. It has made repeated efforts to pin the respondent down on the details of the counterclaim. That that case is still so muddled cannot be blamed on the appellant; it won all the interlocutory battles up to the PTR.

On the other hand, the respondent has been repeatedly at fault, as the judge’s costs orders show. It has deliberately avoided making any amendments to the counterclaim or the Scott Schedule, and compounded that error by delaying in providing a new quantum report until well beyond the eleventh hour. In those circumstances, the overriding objective requires this court to protect the appellant from irredeemable prejudice.