Nargis Firdous v Ecclesall Design Limited & Ors

This judgment follows the hearing of the following applications:

This case concerns the design and execution of building works at 1 Sandford Grove Rd (“the property”). The Claimant alleges that she is the owner of the property. The roles of the various Defendants are asserted by her to be as follows:

The property is situated on a site which is sloped both at street level and along the length of the site from front to back. There is a masonry retaining wall (“the retaining wall”) which runs roughly along the boundary between the property and three neighbours to the right of the property, which neighbours are all at a lower level to the property. Work commenced at the property in spring 2021. Overnight between 9 and 10 May 2021, the retaining wall suffered a partial collapse. Thereafter, work continued until around 13 June 2022 when the Fifth Defendant asserts it had completed the works it was able to complete and terminated the contract.

Proceedings were issued on 2 November 2023. On 22 January 2024, the Claimant discontinued against the Second Defendant. On 7 June 2024, the Claimant’s claim against the Third Defendant, who was a director of Vitkoson Limited, was struck out. The Claimant claims against the First and Fifth Defendants in respect of breach of contract and/or negligence for loss and damage said to be the cost of demolishing the old building at the property, the cost of building a new property and the cost of rectifying the retaining wall. The Claimant claims against the Fourth Defendant as insurer of the Third Defendant and asserts the Fourth Defendant is thus liable for the Claimant’s losses.

Throughout this judgment, there is reference to “a JCT contract”: it is abundantly clear, and I so find (for reasons set out later in this judgment), that any contract between the Claimant and the Fifth Defendant was not in any form produced by the Joint Contracts Tribunal.

The following chronology is of relevance to the applications:

I have had the benefit of reading all of the witness statements contained within the bundles, together with the various documents to which I was taken during the course of the hearing and directed to in skeleton arguments.

The witness statements relied upon were as follows:

I do not propose to rehearse all of the arguments raised, nor all of the evidence referred to in skeleton arguments and during the course of the hearing. However, I record that I read and considered the evidence as a whole, as well as various documents within the bundle to which my attention was drawn, in addition to all the arguments before coming to my decision.

In respect of strike out, CPR 3.4(2) provides:

“(2)

The court may strike out a statement of case if it appears to the court—

(a)

that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b)

that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c)

that there has been a failure to comply with a rule, practice direction or court order.”

In respect of summary judgment, CPR 24.3 provides:

“The court may give summary judgment against a Claimant or Defendant on the whole of a claim or on an issue if—

(a)

it considers that the party has no real prospect of succeeding on the claim, defence or issue; and

(b)

there is no other compelling reason why the case or issue should be disposed of at a trial.”

The Overriding Objective provides at CPR 1.1:

“(1)

These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2)

Dealing with a case justly and at proportionate cost includes, so far as is practicable—

(a)

ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;

(b)

saving expense;

(c)

dealing with the case in ways which are proportionate—

(i)

to the amount of money involved;

(ii)

to the importance of the case;

(iii)

to the complexity of the issues; and

(iv)

to the financial position of each party;

(d)

ensuring that it is dealt with expeditiously and fairly;

(e)

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

(f)

promoting or using alternative dispute resolution;

(g)

enforcing compliance with rules, practice directions and orders.”

In respect of permission to amend a statement of case, CPR 17 provides that a statement of case may be amended with the permission of the court once the statement of case has been served. If permission is granted, further directions will be given by the court if necessary in relation to other statements of case and service of the amended pleading.

The parties referred me to the following authorities:

From those authorities, the following principles can be derived:

The issues to be determined are in my judgment in respect of each remaining Defendants:

The Amended Particulars of Claim runs to 15 pages. The claim against the Fifth Defendant can be summarised as follows:

In its Defence dated 19 January 2024, the Fifth Defendant identified various inadequacies in the claim against it by the Claimant. Details were provided as to why it was asserted that the Claimant’s claim disclosed no reasonable grounds for bringing or maintaining proceedings against the Fifth Defendant. Those matters included the following:

In addition to the deficiencies identified in the Fifth Defendant’s Defence, the first witness statement of Ms Sturgess set out other evidence and matters about which the Fifth Defendant has concerns sufficient that it asserts that the claim should be struck out and/or summary judgment given in respect of it.

The Claimant was invited to provide evidence about the ownership of the property given the fact that payments in respect of the property were made from the SHL company bank account. In the reply to the Fifth Defendant’s Defence, the Claimant asserts that she kept “her own money” in the SHL bank account (which may be a breach of the Claimant’s obligations as a director of SHL). In the Reply, various assertions are made responding to the matters raised in the Fifth Defendant’s Defence. Some of those various assertions are proposed as amendments in the application to re-amend the Amended Claim Form and Amended Particulars of Claim.

The Claimant was invited to explain on what basis she asserts that she is entitled to seek to recover the losses claimed in a personal capacity. The Claimant herself did not provide any evidence in response to the application to strike out or for summary judgment. She relies upon the witness statement of her son-in-law who asserts that he acted on the Claimant’s behalf with the Defendants at all material times. The witness statement of Mr Masood itself is brief – four pages of narrative plus 116 pages of exhibits.

No evidence is given in the witness statement of Mr Masood about ownership of the property and no adequate documentation concerning ownership (such as Land Registry documents) is appended to it. No explanation is given for this when such documents must easily be available. Although documents are attached to Mr Masood’s statement showing the Claimant as a registered owner from “Gov.UK”, those documents also warn that if a person needs to “prove property ownership, for example, for a court case, you’ll need to order an official copy of the register”. Mr Masood also does not deal with the fact that a residential care home operated by SHL is also situated at the address covered by the documents provided. The address on the documents is not 1 Sandford Grove Road. The contract ostensibly between the Claimant and the Fifth Defendant is also exhibited.

Mr Masood asserts that the building contract is a JCT contract. It is plainly not a JCT contract. The document described as “contract for building work” appears to have been drafted by the Fifth Defendant. The terms and conditions appended to the building contract appear to be standard terms and conditions of the Fifth Defendant. The scope and description of works is set out in Schedule 1 to the contract. The works to be done do not include any design work by the Fifth Defendant. Nothing in the description of works indicates that the Fifth Defendant had any responsibility for doing any work on the retaining wall.

Of the proposed re-amendments which concern the Fifth Defendant, a number of additional breaches of duty are set out without any sufficient factual basis being pleaded. Further, an examination of the documentation referred to in support of the Claimant’s factual claims against the Fifth Defendant demonstrate that the Claimant has no realistic prospect of success in respect of at least some of the factual matters asserted.

For example, at paragraph 23 the Claimant asserts that the retaining wall collapsed and then asserts that the Fifth Defendants have not attempted to rectify their “mistaken or negligent act” without any explanation as to what that the act is said to be. Instead, the Claimant appears to rely on emails sent to prove that the Fifth Defendant admitted various matters.

At paragraph 23(a) of the proposed Re-Amended Particulars of Claim, it is asserted that the First Defendant in an email said that the Fifth Defendant had acknowledged negligence. In my judgment, that reading of the email cannot possibly be justified. If anything, the implication is precisely the opposite. It is asserted in the email that Rob (employed by the Fifth Defendant) had stated that for its insurer to deal with matters, he would “have to acknowledge negligence”. Although the writer of the email then expresses a view about the Fifth Defendant’s negligence, it is impossible to read the email as an admission made by the Fifth Defendant.

At paragraph 23(b) the Claimant notes an email from Vitkoson Limited which states that the Fifth Defendant accepted partial liability for failing to consult a structural engineer. At paragraph 23(c), the Claimant then notes an assertion from the Fifth Defendant that it worked on the calculations produced by Vitkoson Limited, as sent to them by the First Defendant.

The Claimant’s attitude to this case, both in the pleadings and in the skeleton arguments produced by her counsel for the applications, appears to be that something went wrong with the construction process. The retaining wall fell down. Therefore, one, some or all of the Defendants must be to blame, especially as they keep blaming each other. Therefore the Claimant is entitled to damages. The Claimant does not appear to be approaching the case with the understanding that she is obliged to prove the various elements of the causes of action upon which she relies with evidence which she obtains and calls. The Latin maxim “res ipsa loquitur” (the thing speaks for itself)cannot, in my judgment, apply in this case and in any event it is not pleaded.

In addition, in my judgment, the submissions made by Claimant’s counsel and pleadings drafted consistently misread (at best) and misrepresent (at worst) the effect of contemporaneous documentation cited. For example, the skeleton argument in respect of the strike out referred to an email from the Fifth Defendant to the First Defendant dated 8 June 2021. Relying on that email, it is asserted that the fact that the Fifth Defendant had reported that the wall collapsed to its insurer and the fact that a like-for-like repair may be approved is “implicitly acknowledging” a causative breach of duty. Reading the email as a whole, that interpretation simply cannot be justified. Later in the email it is stated that there “may be some ability” for the insurers of the Fifth Defendant to contribute to a proposal to be made by the First Defendant in respect of the wall. It is further said that further meetings concerning the wall and insurance were planned.

Detailed complaints are set out in the witness statements of Ms Sturgess concerning the Claimant’s breaches of the Civil Procedure Rules and failure to engage with the pre-action protocols. The quotes from emails from the Claimant’s counsel concerning the Claimant’s failure to engage with the pre-action protocol show a clear intention and a deliberate decision of the Claimant not to comply with the protocol. The Claimant had taken the view that because there were previous discussions where no amicable outcome was reached, she would not comply with it. When challenged about that view, the Claimant was said to consider compliance with the protocol to be “a waste of time”. Further, there was no need to provide initial disclosure of key documents on which she relied, nor key documents to enable the Defendants to understand her case (in breach of the disclosure practice direction) because it was asserted that documents had been provided previously. I accept the submission made by the Fifth Defendant that the relevant documents are not necessarily in the possession of the Fifth Defendant as the Fifth Defendant’s involvement in the project and the property started a number of years after the involvement of other Defendants.

In my judgment, the submissions made by the Fifth Defendant about the various deficiencies identified both in the Defence and in the witness statements of Ms Sturgess are meritorious. The Amended Particulars of Claim is vague and unclear. The factual background to the claim is not set out adequately to enable the Fifth Defendant to understand the case it has to meet.

The Claimant does not set out how, if established, breaches of contract by the Fifth Defendant either caused or contributed to the losses claimed. She simply claims all of the losses against all of the Defendants.

The Claimant’s case is contradictory and/or unexplained on occasion. For example, the Claimant asserts that her losses were caused by the Fifth Defendant’s failure to follow the designs or calculations produced by other Defendants. No facts are given as to how it is said the Fifth Defendant failed to follow the designs. However, in any event, as the Claimant also alleges that the design was inadequate as against other Defendants, no case is set out as to how the failure would have been causative of the losses if, as she asserts, the designs of others were negligent and in breach of duty in any event.

The evidence provided in opposition to the application for strike out and/or summary judgment goes nowhere near addressing the serious failures and omissions noted in the Defence of the Fifth Defendant and in the witness statements of Ms Sturgess. The Claimant seeks to rely upon a further expert report obtained from Mr Sparkes, Chartered Civil Engineer, dated 30 May 2024 and served on the Defendants on 20 September 2024. However, this report also does not assist the Claimant’s case against the Fifth Defendant. Mr Sparkes acknowledges that he did not have all of the facts and only a limited number of documents. As a result, Mr Sparkes acknowledges that he has no knowledge of what construction equipment and vehicles were used on site but then speculates that such vehicles “could have been” in close proximity to the retaining wall. If that were the position, he states that risk “should” have been considered by the Fifth Defendant and led to various proposals. Even if the factual basis for Mr Sparkes’ opinion can be established, that evidence does not prove negligence or breach of contract even taken at its highest.

The Claimant has failed to comply with the pre-action protocol before issuing the claim against some of the Defendants including the Fifth Defendant. There is no real attempt to explain the Claimant’s failure to comply with the pre-action protocol and the disclosure protocol. The Claimant asserts that there was no breach of the rules or practice directions but then gives justification for not complying with them because the other parties already have the relevant documents. Even if that statement were accurate, the stance taken by the Claimant completely misses the point. The rules should be complied with regardless of whether the Claimant thinks compliance is necessary or not. They enable efficient and fair progress in accordance with the Overriding Objective.

I have of course considered whether the Claimant’s claim can and should be salvaged by permitting a re-amendment of the Amended Particulars of Claim. The Claimant has applied to re-amend. Unfortunately, the proposed re-amendments do not resolve the numerous deficiencies which presently exist with the Amended Particulars of Claim. The proposed pleading remains wholly inadequate, even in its fourth version. An adequate factual basis for the cases against each of the Defendants is not set out. Some of the new facts proposed to be inserted into the Re-Amended Particulars of Claim are not justified on the evidence. There is no still adequate particularisation of alleged breaches against the Defendants. There is no still adequate particularisation of how, if proved, the alleged breaches of each of the Defendants caused the losses claimed despite the best efforts of the Fifth and other Defendants to identify the myriad problems. In short, the proposed re-amendments fail to remedy the numerous defects identified by the Fifth Defendant and still do not enable the Fifth Defendant nor the court to understand the case being brought against the Fifth Defendant.

It is of note that the version of the pleading for which permission to re-amend is sought is the fourth version of the pleading provided to the parties before the application was made. Although the Claimant criticises the Fifth Defendant for refusing to consent to the proposed re-amendments, in my judgment, such criticism is entirely unfounded. The proposed pleading is inadequate and, unfortunately, given the history of this case and the approach taken throughout by the Claimant and her legal representatives, I do not believe that there is any realistic prospect of an adequate pleading being provided by the Claimant to enable the Fifth Defendant or the court to understand the legal and factual basis for her claim. In those circumstances and considering the Overriding Objective, as well as the other relevant rules are set out above, I have no hesitation in deciding that it is not appropriate either to give permission to re-amend the Amended Particulars of Claim in the form proposed by the Claimant nor to give permission to re-amend in some appropriate form in the hope that an adequate pleading would be produced.

For all of the reasons given therefore the Claimant’s claim against the Fifth Defendant is struck out. I would in any event have granted summary judgment against the Claimant for the reasons already given.

I propose to deal relatively briefly with the Claimant’s application for permission to re-amend the Amended Particulars of Claim against the First Defendant and the First Defendant’s oral application that the claim should be struck out. The reason for this is that the various deficiencies identified in considering in detail the formal application made by the Fifth Defendant for strike out and/or summary judgment apply in very large part to the position of the First Defendant as well.

Again in its Defence, the First Defendant complained about the failure to comply with the pre-action protocol and the failure to provide documentation. It also complained that the pleading was so inadequately particularised that no legal or factual basis was set out to enable the First Defendant to understand the claim it had to meet on either breach of duty or causation. The Defence also noted that the report of Mr Fountain dated 4 March 2023 on which the Claimant relied did not provide any evidence in support of the claim against the First Defendant. Opportunities had been provided on multiple occasions in correspondence by the First Defendant (both before and after claim was issued) for the identified problems to be addressed and that had not been done.

It is not, in my judgment, a proportionate use of the court’s time and resources to go in detail through the Amended Particulars of Claim in respect of the First Defendant and the proposed re-amended particulars of claim. The myriad deficiencies with both pleadings are in broad terms as identified in the more detailed analysis set out above in respect of the Fifth Defendant. For the same broad reasons, I am entirely satisfied that it is not appropriate to give permission to re-amend the Amended Particulars of Claim in the form applied for, nor generally to grant open ended permission to re-amend against the First Defendant. To do so would be an unjustified waste of resources both for the First Defendant and for the court. This is particularly the case against the background of the Claimant’s failure to comply with the rules and practice directions and the fact that the evidence provided by the Claimant does not support the claims being brought by the Claimant even if they were coherently and properly particularised.

Although an explanation is given in part by the Claimant that the new pleading is sought in the light of the new report of Mr Sparkes, I accept the criticisms made by the First Defendant that as a civil engineer, it is unclear on what basis it is asserted that Mr Sparkes is qualified to comment on the project management services provided by the First Defendant. It is also clear that much of Mr Sparkes’ report is based on conjecture and supposition in any event as concerns the First Defendant’s duties and any alleged breach of them. That is not sufficient.

In all the circumstances, it is proportionate and justified to strike out the Claimant’s claim against the First Defendant. In addition, I would in any event have been satisfied that for the same reasons it would have been appropriate to grant summary judgment against the Claimant for the First Defendant.

As with the First Defendant, I am also going to deal briefly with the position of the Fourth Defendant. For the same reasons, the Fourth Defendant has been prejudiced in dealing with this case. As noted by counsel for the Fourth Defendant, the claim was issued nearly a year before the applications were heard. The Fourth Defendant is still in no better position to understand the case which the Claimant seeks to bring against it. Again opportunities have been given to address the fundamental concerns and the proposed re-amendment is inadequate.

As observed in the Fourth Defendant’s skeleton argument, the factual basis pleaded in the Claim Form is incorrect. The Fourth Defendant has declined an insurance claim in respect of the Claimant’s alleged losses. However, that declinature was in respect of a claim intimated against Vitkoson Limited, and not against the Third Defendant as pleaded. The factual basis set out in the proposed re-amendment against the Fourth Defendant is demonstrably wrong. In addition, the claim is directly contrary to the claim which the Claimant previously asserted against the Third Defendant which has now been struck out.

In any event, no coherent cause of action is pleaded against the Fourth Defendant. Assertions previously made against the Third Defendant are now made by the Claimant against Vitkoson Limited. Various other assertions are added incoherently against the Fourth Defendant which appear to assert that the Fourth Defendant owes a direct duty to the Claimant. No consideration is given to the fact that the claim against the Third Defendant has been struck out. The matters which remain within the proposed re-amendment relating to the Third Defendant and/or Vitkoson Limited are deficient for lack of particularisation on the same bases as were set out in respect of the Fifth Defendant. Although it is correct that the Claimant would step into the shoes of Vitkoson Limited as that company is now insolvent, there is still required to be clearly set out a basis for Vitkoson Limited being able to enforce its contract of insurance with the Fourth Defendant when the Fourth Defendant asserts breaches of the insurance policy conditions in its defence to this claim. That is not done in the proposed pleading.

In all the circumstances, it is proportionate and justified to strike out the Claimant’s claim against the Fourth Defendant. In addition, I would in any event have been satisfied that for the same reasons it would have been appropriate to grant summary judgment against the Claimant for the Fourth Defendant.

Costs and any ancillary orders will be dealt with at a form of order hearing if not agreed.