Appeal Success for Construction Team
Following on from our article of 22nd July 2021 sharing the success of the construction team in striking out the defence and counterclaim of a defendant who had failed to comply with Court directions, the team have enjoyed further recent success when the same defendant unsuccessfully appealed.
Background
More details as to the background of the case are set out in the article of 22nd July 2021, but by way of a brief summary:
- Rogers & Norton acted for the claimant, who had carried out some building works at the defendant’s property.
- The defendant failed to pay the outstanding balance following completion of the works and cancelled a contract with the claimant to carry out further works.
- The claimant issued proceedings for the outstanding balance of its invoice and damages resulting from the cancellation of the second contract.
- The claim was defended on the basis that the works were allegedly defective, and the defendant also brought a counterclaim for losses arising from those alleged defects.
- The Court had set down directions for the parties to prepare the case for trial. However, the defendant was over 8 months late in providing its disclosure, meaning that the claimant could not properly prepare for trial, including drafting witness statements.
- The claimant was successful in its application for the defence and counterclaim to be struck out and for judgment to be entered in favour of the claimant in respect of its claim.
The Appeal
Following the Order of the District Judge striking out the defence and counterclaim and awarding the claimant judgment, the defendant applied for permission to appeal. The defendant’s application was refused on paper. The Judge considering the application found that the grounds of appeal did not identify any error in the conduct of the hearing or the application of the law and simply amounted to a disagreement with the decision of the District Judge.
The defendant then applied to have the decision to refuse permission to appeal re-heard at an oral hearing, which took place before a Circuit Judge at the County Court at Central London. The defendant also applied to amend its grounds of appeal.
The defendant was unsuccessful in both applications. The Circuit Judge hearing the appeal found that the District Judge at first instance was entitled to have exercised his discretion in the way that he had in striking out the defence and counterclaim. The defendant had sought to argue that certain points should have been raised on behalf of the defendant at the application hearing but were not. The Judge was clear that this was not a sufficient reason for interfering with the District Judge’s determination of the application. The defendant had been represented by Counsel at the hearing and the appeals process was not there to enable unsuccessful litigants to re-argue their case.
Unusually, the Circuit Judge also made a costs order in favour of our client. The usual position is that a respondent to an application for leave to appeal is not required to attend the hearing and is therefore not entitled to its costs of doing so. However, in this case the Judge agreed that the claimant’s attendance at the hearing assisted the Court and indeed the defendant’s Solicitor had actively invited us to attend.
Conclusion
This case illustrates how appeal Courts are generally reluctant to interfere with an order made by a District Judge unless they had plainly made an error or arrived at a decision that was manifestly wrong. It is not sufficient that a different Judge may have made a different decision.
This case also demonstrates the importance of putting your case fully at the first instance as not having put forward all of the arguments in favour of your case that you could have done, for example, due to not having the benefit of legal representation, is highly unlikely to be sufficient to persuade a Court to grant leave to appeal.
The Dispute Resolution team at Rogers & Norton have wide experience of dealing with all forms of construction claims including adjudication and through the Courts. If we can be of any assistance please contact Elizabeth Gibson at eg@rogers-norton.co.uk or Peter Hastings at ph@rogers-norton.co.uk.