HT-2023-000006 - [2024] EWHC 1510 (TCC)

The following matters are raised as counterclaims or contracharges in the account.

Firstly, payment of Mr Smith’s fees: I have indicated that I will seek further submissions on this in due course.

Secondly, the list of disputed items set out in the table at paragraph 25 above includes an item for “enforcement procedure costs” in the sum of £20,822. These are the subject of an existing order. I have no jurisdiction in this action to do anything about that order, although I can see that there may be arguments in due course about the stay on enforcement which I have previously ordered.

Thirdly, there is a claim for the cost of completing the works. This is pleaded in the sum of £88,089.61, which is calculated by taking the costs said to be attributable to completing the works by a different sub-contractor and others (said to be £191,186.26) less £109,116.65 which would have been paid to A & V to complete the works (Footnote: ⁷⁹).

I accept that if J&BH had succeeded in establishing that A & V repudiated the sub-contract this would have been the appropriate method of calculating this head of counterclaim (subject to A & V’s waiver/estoppel argument in paragraph 6.2 of the Particulars of Claim). However, as I have held that it was J&BH which was in repudiatory breach of sub-contract, this counterclaim must fail in any event.

I should say that if I had to assess the reasonable and attributable costs of completing the sub-contract works, I would not have accepted the figure of £191,186.26 or anything like that figure. Firstly, I have recorded that J&BH’s figures for the costs to complete and the linked figure for costs of post March 2021 variations have changed in very surprising ways. Secondly, A & V carried out an exercise for the purpose of the Smith adjudication which appeared to show that the invoices which truly related reliably to the costs to complete totalled £31,120 (Footnote: ⁸⁰). This was shown to me and relied upon by A & V in the enforcement proceedings before me, but despite that no witness was called by J&BH who could answer those criticisms. Thirdly, on my finding that the value of outstanding works was £42,643.75 a figure of £191,000 (or £177,000 to which Mr Frampton reduced it in the course of his submissions) would need a very full explanation - even if the outstanding value was £109,116, explanation would have been called for.

Finally, there is a claim for £6,000 for stolen copper. As to this, it is undoubtedly the case that one of A & V’s plumbers was caught red-handed trying to steal copper. However that attempt failed.

Understandably, J&BH is suspicious that this might have been but one instance in a series of thefts. Unfortunately for J&BH, as Mr Frampton recognises in paragraph 326 of his written Opening Submissions, J&BH is unable to accurately identify the value of all copper and other materials taken by A & V’s operatives.

As I understand the position, Mr Hill tried to assess a figure and came up with the figure claimed of £6,000. However, he has not been called nor has any other witness who could prove that this was a reasonable estimate.

In those circumstances I have no basis upon which I can award the sum claimed or any sum, and the counterclaim is dismissed.