Collins and others v Drumgold and others
County court – Building contract – Claimant owners commencing action for breach of statutory duty/contract – Defendant contractor applying to transfer matter to Technology and Construction Court owing to complexity and value of claim – Courts setting out principles applicable in deciding whether to transfer – Whether case appropriate for transfer – Application granted
The claimants owned three properties that the second defendant building contractor had built in around 2000. The claimants brought claims against the second defendant for breach of statutory duty and/or contract. They also made claims against the sixth defendant architect, who had signed the certificates of practical completion. It was alleged that those certificates impliedly represented that the houses had been constructed to a reasonable standard and were reasonably fit for habitation. The claimants made similar claims against the seventh defendant, an engineer who was employed by the second defendant. In addition, the first and second claimants brought claims against the fifth defendant, who had acted as their solicitor during the conveyancing process.
Some disputes concerned the adequacy of the design and the construction of the ground beams, which required consideration of detailed geotechnical and engineering calculations. There were also disputes on causation and the scope and applicability of the Defective Premises Act 1972 and defences relying upon the Limitation Acts. The overall claim was worth around £300,000 and the schedule of loss identified particular claims approaching £250,000, with some heads of claim that still had to be finalised.
County court – Building contract – Claimant owners commencing action for breach of statutory duty/contract – Defendant contractor applying to transfer matter to Technology and Construction Court owing to complexity and value of claim – Courts setting out principles applicable in deciding whether to transfer – Whether case appropriate for transfer – Application grantedThe claimants owned three properties that the second defendant building contractor had built in around 2000. The claimants brought claims against the second defendant for breach of statutory duty and/or contract. They also made claims against the sixth defendant architect, who had signed the certificates of practical completion. It was alleged that those certificates impliedly represented that the houses had been constructed to a reasonable standard and were reasonably fit for habitation. The claimants made similar claims against the seventh defendant, an engineer who was employed by the second defendant. In addition, the first and second claimants brought claims against the fifth defendant, who had acted as their solicitor during the conveyancing process. Some disputes concerned the adequacy of the design and the construction of the ground beams, which required consideration of detailed geotechnical and engineering calculations. There were also disputes on causation and the scope and applicability of the Defective Premises Act 1972 and defences relying upon the Limitation Acts. The overall claim was worth around £300,000 and the schedule of loss identified particular claims approaching £250,000, with some heads of claim that still had to be finalised.The action was commenced in Cambridge County Court, but the second defendant applied to transfer it to the Technology and Construction Court (TCC) in London, pursuant to CPR 30.3(2) and para 2.1 of CPR 60 PD. The other defendants supported the application, but the claimants objected. Held: The application was granted.The relevant matters to be considered by the court that heard the applications to transfer should consider, as set out in CPR 30.3(2), were: (i) the financial value of the claim and the amount in dispute, if different; (ii) whether it would be more convenient or just for hearings (including the trial) to be held in some other court; (iii) the availability of a judge who specialised in the type of claim in question; (iv) whether the facts, legal issues, remedies or procedures involved were simple or complex; and (v) the importance of the outcome of the claim to the public in general: Lumbermans Mutual Casualty Co v Bovis Lend Lease Ltd [2004] EWHC 1614 (Comm) considered. In considering whether to transfer an existing county court action to the TCC, the TCC would ask whether the dispute arose out of, or in connection with, one of the types of claim identified in para 2.1 of CPR, 60 PD as a claim suitable to be heard by the TCC, bearing in mind that para 2.1 was a list of examples merely. The TCC would consider such a dispute to be appropriate (subject to the other factors) for possible transfer.Financial considerations could be important, but a critical factor was the view taken by the court of the complexity of the issues in the action. The more complex the dispute, the greater would be the benefit of transferring the action to the TCC. Questions of convenience could also be important, but, in the usual case, where the county court and the relevant TCC were not geographically distant, they might not be of any great significance. However, the court should also bear in mind wider factors such as the fact that High Court costs would exceed those in the county court. Adopting that approach in the present case, there was no doubt that it should be transferred to the TCC because of the types of claim being made, their value and, in particular, their complexity. It was relevant that the claimants had brought their proceedings by way of a subrogated claim, with their costs being met by insurers. More generally, a specialist court such as the TCC ought to be able, through careful management, to reduce the costs that the parties might otherwise incur. The claimants did not appear and were not represented; Lynn McCafferty (instructed by Fisher Jones Greenwood LLP, of Greenwood) appeared for the second defendant; the other defendants did not appear and were not represented.Eileen O’Grady, barrister
