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

Fecha: 08-May-2024

XIV Alleged inconsistency between cases advanced in the Sweett and MAAP proceedings

XIV Alleged inconsistency between cases advanced in the Sweett and MAAP proceedings.

104.

In the skeleton of Sweett at paras. 109-112, it is submitted that there is an inconsistency between the cases advanced in the Sweett and the MAAP proceedings as regards the allegations as to Linings in Services Crawlway. It is said that the allegation in para. 34 of the Reply of LOR in its claim against MAAP is inconsistent with the case now being advanced. This is said to be an abuse of process and liable to obstruct the just disposal of the proceedings.

105.

Sweett has answered this allegation in an Appendix to the witness statement of Mr Kippax. In my judgment, there is not a clear inconsistency, or not one sufficiently clear as to require rectification, in a strike out application. For the following reasons, the Court will not strike out this allegation or require it to be repleaded, namely:

(i)

generally for the reasons set out in the column of the comments of LOR in the Appendix at p.1416 of the applications bundle;

(ii)

if the point had been so striking, it would have been taken in the Amended Defence of Sweett which itself had already referred to the Reply of LOR in its claim against MAAP without raising this inconsistency allegation;

(iii)

the substance of the design deficiency is said to be the same in respect of both the allegations against MAAP and Sweett, whereas there is a particular factual detail about the drawings which is raised in the Reply in the MAAP proceedings which does not end the design deficiency allegation common to both proceedings.

106.

The Court on this strike out application is not deciding this point, and in refusing to strike out or to require further amendment, the Court does not bar this matter from being raised at trial in the determination of the case on the merits rather than by way of striking out.