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

Sweett submits that the case in respect of the vanity units should be struck out and no amendment should be allowed: see Amended Particulars of Claim paras. 117.1(a) - (e) and draft amendment para. 117.1A. It submits that it is hopeless because:

The response of LOR in oral argument at Day 1/139/7 and following is as follows. Its case is that even if the design was followed, which is not admitted, then there was a breach of Clause 5.4 which provides that the Independent Tester shall “Visit the Site and monitor and inspect the works on a regular basis in accordance with the Project Agreement to monitor compliance the works in accordance with the Project Agreement...”. Reference is made to para. 120.2 of the Amended Particulars of Claim to the effect that Sweett failed to properly monitor and/or inspect the works for compliance with the Project Agreement.

Sweett also submitted by reference to a part that had been quoted by LOR, namely page 5 of Appendix 3. Sweett alighted on a part of that which appeared to have nothing to do with the vanity units, namely that the patient atmosphere had to be homely. Whilst that was true, the page went on to say that “the internal and external environments should be durable and safe to deal with the physical demands that patients are likely to put on them.” That was then the same obligation or directly related to the allegation at para. 117.1(a) of the Amended Particulars of Claim. The importance of this requirement was a concern that some mental health patients might pull such units off the wall. LOR relied on this point of detail to show that looking at some isolated aspects for the purpose of a strike out application involved dangers. Likewise, striking out because of irrelevance should be done sparingly because the full context might not be appreciated.

I do not accept that there is a knock-out point in respect of the vanity units. I accept that points with a real prospect of success have been raised by LOR. There is a danger in selecting passages or comments and seeing them out of context or selecting the wrong sentence. The foregoing does not illustrate that the point of LOR is necessarily a good point, but it does show the dangers of striking out in respect of a case where the points of the parties need to be appraised against the evidence as a whole and with the benefit of expert evidence. These matters require to be tested at a trial.

There is one minor point. The vanity units do not appear to be a complaint about design. There is no positive case to that effect by not admitting that the vanity units accorded with the design. There is a positive case that the failure of Sweett is about monitoring and inspection, rather than design. This was stated by Mr Hanna in answer to questions from the Court at Day 1/141/12 – Day 1/143/24. If there are any tweaks of the pleading in this regard, this should be considered as part of the consequentials. This should not be elevated into a big point because the result of the above is that an allegation about the vanity units, which Sweett contended to be doomed to fail, will not be struck out.