HT-2022-000180 - [2024] EWHC 1088 (TCC)

In the case of the En Suite Doors, the case of Sweett is that the complaint is in effect that the design in Schedule 8 was defective in not providing for the end grain of the doors to be sealed/protected from water ingress. In that event, there was compliance with Schedule 8 in that Sweett was not obliged to change the design. Sweett says that the reference to two paragraphs of HTM 58 are not pleaded and do not contain this obligation.

The case of LOR at para. 117.2A of the Amended Particulars of Claim is as follows:

“The designs in respect of the ensuite doors (in particular the abovementioned drawings detailing the ensuites) were not compliant with Schedule 8 of the Project Agreement because, for the reasons set out above, they were contrary to HTM 58 clauses 2.47 and/or 2.48 and/or Schedule 8 Part 3 Subpart C paragraph 3.2 and/or Good Industry Practice. In order to comply with Schedule 8, the design ought to have provided for the end grain of the doors to be sealed / protected from water ingress.”

This is further pleaded in the particulars of breach of contract against Sweett at para. 120.2 of the Particulars of Claim as follows:

“Further or alternatively and in breach ofparagraph 5.4 of Appendix 1, Sweett failed to properly monitor and/or inspect the Works for compliance with the Project Agreement, with the results that:

(a)

Sweet failed to identify that the en suite doors had not received a water based lacquer and/or end grain sealant so as to protect them from water ingress / damage and failed to notify and/or failed to alert the Trust and/or TVH and/or LOR of this non-compliance with the Project Agreement. It was non-compliant because (as is set out in paragraph 117.2(a) above) it was contrary to HTM 58 and/or Good Industry Practice, both of which formed part of the requirements in Schedule 8 of the Project Agreement. A reasonably competent independent tester, conducting monitoring and/or inspection of the Works with reasonable care and skill, would have identified that the en suite doors were liable to be exposed to water and ought to be (but were not) sealed against water ingress and would have notified this non-compliance”.

Here too, the same comments as in respect of the roofs will apply about how the issues between the parties will be for trial as regards the scope of the obligations of Sweett and whether they were in breach of contract. These are not matters to be decided on a strike out application. Sweett’s answer may prevail at trial, but that is for a dispute at trial rather than a basis for strike out or for the pleadings to require revision before being allowed to go forward. It is possible that if the pleadings were being started again that the matter could be expressed in a clearer way. The question is whether the pleading ought to be improved before it is allowed and/or whether the pleading ought to be struck out if that is not done. In this regard too, the Amended Particulars of Claim is adequate: it ought not to be struck out. As is made clear in the discussion in the law, pleadings are not marked out of ten with a basic pass-mark, failing which they are struck out. The striking out for abuse of process depends on an analysis of serious deficiencies which usually affect the ability of the Court to try the matter or the other parties to prepare for trial. In my judgment, whatever criticisms are made, they fall short of requiring this or any part of the claim to be struck out, or for amendments to have to be made to save the pleading.