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

In addition to a skeleton argument of just over 36 pages, Sweett has attached Appendices of about 20 pages of numerous points of criticism of the position of LOR (excluding Appendix 1 which tracks the various versions of the Amended Particulars of Claim). They will be examined thematically rather than ruling on each point, which would add tens of pages to this judgment. Before so doing, there are general points to be made in respect of the Appendices 2-6.

The principles of law stated above about the circumstances in which a case is to be struck out do not require pleadings to be struck out because (a) they are not perfect, or (b) it would have been preferable to have pleaded the case in a different way, or (c) certain matters are vague or irrelevant.

Whilst it is a part of the overriding objective that a case should not come on to trial which could not be fairly tried due to its being unreasonably vague and incoherent, it is also the function of the Court where a case can be fairly tried to allow a case to move forward and to use its resources to try the case rather than to become bogged down in unduly protracted interlocutory skirmishes about pleadings. It is not every vagueness, lack of particularisation, inconsistency or other unsatisfactory aspect of the case that has to be corrected, let alone be struck out. A pleading should not be struck out because others would have pleaded it better or because there were faults on the way which if they had not been existed would have made for a clear pleading.

Without in any way signalling a comprehensive statement of what is expected, in a case which has a real prospect of success, the Court will not intervene simply because of some vagueness or inconsistencies or lack of clarity. The epithets of “unreasonably vague and incoherent” go together with a case being such that it does or might affect the fairness of a trial and the ability of the other parties and the Court to understand what is being alleged. In other cases, the epithets are about the conduct of a party which may be so scandalous, unreasonable or oppressive that it affects the justice of whether a case should be tried. In effect, a party may have forfeited its right to a fair and open trial of the issues.

Applying these tests to the case, there is no reason for a strike out in the instant case, nor is there a reason to require the case to be repleaded with a view to saving the case from strike out.

This has been addressed above in the sections about the various defects. It is not necessary to refer to each of the items point by point.

In part, the criticism is that extracts from standards and codes e.g. HTM 05-02 are not pleaded out in full. Paragraphs are cited, but it is contended that they ought to be pleaded out and without that, they are not pleaded. I do not accept this. It is a question in each case as to whether this is necessary, such that if it is not done, it requires correction. In my judgment, there is a good reason for not having pleaded out these matters in full. The pleading is already full to the point of being so detailed that it is capable of affecting its clarity. The effect of having to plead out all of these matters would be to add pages and pages to the pleading and would adversely affect the pleading.

In seeking to make good its case that the complaint is that Sweett did not comply with Schedule 8, many of LOR's draft amendments are directed at particularising that case. That involves referring to codes and standards which form part of Schedule 8. Where LOR has summarised parts of the codes and standards relied upon, Sweett says that this is inadequate and that an amended pleading should quote the exact words of the relevant codes and standards. In my judgment, that is unnecessary for the purpose of a pleading in that the relevant parts off the codes and standards that have been sufficiently identified.

Sweett also claims that many of the provisions are not relevant. That is contrary to expert advice having been provided to LOR. It may be that there will be a disagreement among the experts as to the relevance of the codes and standards. This is not to be the subject of a mini trial at this stage but all to be adjudicated upon at a trial. It therefore follows that the amendments referring to the codes and standards ought to be allowed.

There is no benefit in going through item by item those obligations which are considered to be irrelevant obligations. It is apparent from the above discussion that there is a wider argument which has been considered about the scope of the obligations of Sweett to LOR. Some of the criticisms are that Sweett was not a designer but an independent tester, and this point has been discussed above, and has been found to be sufficient on the basis of the pleadings as they stand.

This is not a case which is unreasonably vague or incoherent, but there are big picture points which arise from the pleadings and some of which have been discussed in this judgment. There are points of detail which do not form a basis for striking out a pleading or striking it out unless it is saved by amendment. These are points which in the ordinary course will emerge with greater focus through the evidence and the expert reports.

A part of this comprises the references to “Good Industry Practice” which has been used instead of “good and proper practice”. There are numerous references to Good Industry Practice in the draft Amended Particulars of Claim. At para. 45 of LOR’s skeleton argument, 17 instances are cited. The context in which Good Industry Practice is used in the draft Amended Particulars of Claim is as part of the allegations that the designs were non-compliant with Schedule 8. In the draft amendments, the term Good Industry Practice was introduced to replace references to “good and proper practice” (which, as Sweett pointed out, was not a form of words expressly found in the contract).Good Industry Practice is a defined term in Schedule 8. Schedule 8, Part 3 (Trust’s Construction Requirements) at paragraph 3 states that, “Project Co shall ensure that the Facilities comply with Good Industry Practice…”³⁷ Good Industry Practice is defined in Schedule 1 of the Project Agreement as, “using standards, practices, methods and procedures conforming to the law and exercising that degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in a similar type of undertaking under the same or similar circumstances”.

The objections of Sweett to this pleading at best involve having a trial of issues which is inappropriate for the purpose of an amendment application. First, it is said that the plea does not add anything to non-compliance with a specific part of a British Standard. That is a matter which is for trial and on which expert evidence might be important. One possibility is that it will add nothing in which case, it will not cause harm. Another possibility is that it will add something if and to the extent that there is no overlap with a part of a British Standard. In that event, it will be prejudicial only to LOR if it is to be omitted. Second, it is said that the allegation does not have any prospect of success. There is at least an arguable case that Good Industry Practice is a requirement in Schedule 8, and that certain elements of the design were not compliant with (inter alia) Good Industry Practice (hence not compliant with Schedule 8), and that this ought to have been identified by Sweett during the review. There is no knock-out point on this issue, and it should be considered at trial.

There are repeated cross references in the draft Amended Particulars of Claim to the RFI response. Examples are at paras. 113.2(a)(3)-(6), 113.2(b) and 167.2(a). Sweett takes objection to this form of pleading in that:

Sweett submits that the relevant cross references form fundamental parts of LOR’s causes of action. As such, they ought to have been included in the Particulars of Claim: see CPR pt.16.4 (1)(a). In my judgment, it is a question of degree as to whether cross referencing is so great that it would, unless corrected, impede the conduct of the litigation. In this case, it does not have that effect. Even if the pleadings are not as tidy as they would have been in the event that everything had been in one place, that does not justify the cost and inconvenience of reordering the pleadings. The benefit is outweighed by the burden. Besides, there would be considerable repetition between the amended Particulars of Claim and the RFI response, unless the RFI was to be edited substantially, which only adds unnecessarily to the overall exercise. LOR observes that Sweett is able to respond in its Amended Defence to the extent that matters have appeared in the RFI response since the time of the Defence.

Although the point is not exactly the same, Sweett has cross referenced other pleadings in its Amended Defence. There are references in Sweett’s skeleton argument at para 43(f) to incorporation of MAAP’s defence and Deeside’s defence by cross references. Although this is not the same in that it is not two documents by the same party, the practical need to turn from one document to another is the same. This presents no real difficulty as regards the ability of LOR to present its case. The same applies to Sweett as regards incorporation of documents into LOR’s claim.

These matters are strictly by reference to the amendment application. The suggestion is that the references to Schedule 8 is incomprehensible. As appears above, the amendments are sufficient and are not properly characterised as unreasonably vague or incoherent. It is noted that some of the amendments includes deletions of paras. 163.2 -163.5 of the Particulars of Claim, as to which deletion, there is no dispute.