![HT-2024-000027 - [2025] EWHC 3002 (TCC)](https://backend.juristeca.com/files/emisores/logo_yJUntHA.png){kind=logo}
The Facts
The Facts
In summary, the background to these proceedings is as follows:
These proceedings concern a project to design and construct a new multi-million pound city centre library, history and customer centre for the public and students of the University of Worcester (“the Project”). The combined facility, formally known as the Worcester Library and History Centre, and colloquially referred to as “the Hive” to reflect its purpose and aesthetics, was the result of a unique collaboration between Worcester County Council and the University of Worcester, described in the following terms on the Hive website (Footnote: 1):
Worcestershire County Council and the University of Worcester worked together to create a new multi-million pound city centre library, history and customer centre for students and the public. The two organisations, along with the support of Worcester City Council and Advantage West Midlands, realised the opportunity of creating a combined facility for the whole community to use, and the project has developed into one of the most exciting new libraries in Europe.
The Employer for the Project was WLHC ProjectCo Limited (“ProjectCo”).
By a contract with ProjectCo dated 29 January 2010 (“the Building Contract”), the Claimant agreed to undertake the financing, design and construction, completion and commissioning and testing of the Hive.
The First Defendant (then known as Hyder Consulting UK Limited) was originally appointed by ProjectCo to carry out the civil, structural, geotechnical and archaeological engineering services for the Project. The First Defendant’s appointment was novated to the Claimant by an agreement dated 29 January 2010. The First Defendant is represented in these proceedings by DAC Beachcroft LLP (“DACB”).
The Second Defendant was engaged by the Claimant as the mechanical and electrical sub-contractor for the Project. The Second Defendant is represented in these proceedings by Hawkswell Kilvington Limited (“Hawkswell Kilvington”).
The Third Defendant was originally appointed by ProjectCo to provide architectural design services for the Project. The Third Defendant’s appointment was novated to the Claimant by an agreement dated 29 January 2010. The Third Defendant is represented in these proceedings by DWF Law LLP (“DWF”).
The Fourth Defendant was engaged by the Claimant as the sub-contractor for the post-tensioned slab and concrete frame for the Project. The Fourth Defendant is represented in these proceedings by Knights Professional Services Limited (“Knights”).
Practical Completion was certified by Gleeds Building Surveying Limited as having taken place on 27 January 2012.
Protective proceedings were issued against the Defendants on 26 January 2024.
By order of Mrs Justice Jefford dated 10 June 2024, upon an application made by the Claimant on 22 May 2024, the proceedings were stayed until 22 February 2025 to enable the parties to comply with the Pre-Action Protocol for Construction and Engineering Disputes (“the Protocol”). The terms of her order were as follows:
1. These court proceedings are stayed until 22 February (Footnote: 2) … 2025 pursuant to CPR 3.1(2)(f) to enable the parties to comply with the Pre-Action Protocol for Construction and Engineering Disputes (the “Protocol”).
2. Within 7 days of the date of this Order, the Claimant shall make proposals to the Defendants as to the timetable for compliance with the Pre-Action Protocol and the Parties shall endeavour to agree the timetable.
In the Reasons section of the Order the learned judge said:
1. It is not satisfactory that the Claimant has applied for a 12 month stay for compliance with the Pre-Action Protocol without seeking any directions for compliance and with little or no explanation as to why 12 months is required.
2. The fact that the application for a stay and directions was not made at the same time as the proceedings were issued (in accordance with paragraph 12.1 of the Pre-Action Protocol) does not preclude the claimant making such an application or deprive the court of jurisdiction to grant a stay.
3. The stay is consented to or not objected to by all Defendants except the First Defendant.
4. The appropriate way was to take account of the fact that the application was not made until nearly 4 months after proceedings were issued and then with no further proposals for compliance with the Pre-Action Protocol is (i) to grant a shorter stay and (ii) to give directions for the Claimant to make proposals for the timetable for compliance with the Pre-Action Protocol.
The First Defendant suggested that the claim was statute-barred because the Order was made after the expiry of the four-month period within which the Claimant was required to serve its Claim Form and Particulars of Claim. The nub of the point made was that time for service of the Claim Form and Particulars of Claim expired on 26 May 2024, and the Order was made on 10 June 2024, and therefore after that expiry date. However, the Claimant’s application upon which the Order was made was made on 22 May 2024, before the expiry date.
The Claimant sought clarification of the Order.
On 18 June 2024 the learned judge’s clerk forwarded her reply:
The intention of my Order was to grant a 9 month stay from the date of the application (22 May 2024). The parties having agreed that the application could be dealt with on paper, I gave short reasons for the order. I appreciate that I referred to a “shorter” stay than that applied for rather than expressly to a 9 month stay but, as the claimant points out, the date to which the stay was granted was 9 months from the date of the application.
The stay, therefore, “froze” time for service at that point and until the expiry of the stay. If the First Defendant considers that that needs to form part of the Order, they should say so and I will amend the order under the slip rule.
I note that the First Defendant refers to the decision in Grant v Dawn Meats (UK) [2018] EWCA Civ 2212. In that case, there does not appear to have been any argument that the stay took effect from any date other than the date of the relevant Order and the stay was from 3 months from the date of that Order. That is not authority for the proposition that a stay always takes effect from and/or can only take effect from the date of the Order. It was patently not my intention in making the Order that the stay should only take effect from the date of the Order. It was patently not my intention in making this Order that the stay should only take effect from the date of the Order as (i) there would have been no point in making the Order after the time for service of the claim form had expired without also extending time for service of the claim form and (ii) I would have been granting a stay for a random period of 9 months less x no. days.
(Emphasis in the original).
By a consent order of Mrs Justice O’Farrell dated 31 July 2024, the following timetable for compliance with the Protocol was established:
service by the Claimant of the Letters of Claim by 20 September 2024;
service by the Defendants of Letters of Response by 1 November 2024;
a Without Prejudice meeting to be held by 22 November 2024.
Letters of Claim were served by the Claimant as ordered on 20 September 2024.
Letters of Response were served by the Defendants:
By the First Defendant on 29 October 2024;
By the Second Defendant on 1 November 2024;
By the Third Defendant on 1 November 2024; and
By the Fourth Defendant on 16 October 2024.
The effect of the Orders referred to above, once the exchange of correspondence had been completed, was that there was to be a Without Prejudice meeting by 22 November 2024. If that failed to achieve a settlement, the stay would expire on 22 February 2025.
Thus there was a 21 day period between completion of correspondence and the Without Prejudice meeting.
Perhaps unsurprisingly, with 5 parties involved, it proved difficult to arrange for the meeting to take place within that period.
One part of the difficulty was that the Claimant wished its experts to be present at the meeting. In an email dated 8 November 2024, DACB (for the First Defendant) questioned this, pointing out that no expert evidence had been referred to in the Claimant’s Letter of Claim or disclosed.
In the event the Parties agreed that the date for the meeting should be extended.
By a further consent order of Mrs Justice O’Farrell dated 22 November 2024, the date for holding a Without Prejudice meeting was extended to 31 January 2025.
When consenting to the Order, Hawkswell Kilvington for the Second Defendant again raised concerns about the involvement of experts, saying:
As to experts, whilst your comments are noted, they do not address the concerns raised by DAC Beachcroft. As pointed out previously, the Claimant made no reference to experts in its Letter of Claim (as required by the Protocol); no expert evidence has been referred to in the Letter of Claim or disclosed; nor have the identities of the Claimant’s experts been provided.
In the circumstances therefore, please confirm:
1. the identities/disciplines of the Claimant’s experts;
2. the issues to which those experts will be opining; and
3. whether those experts have produced reports.
It rapidly became apparent that holding the meeting by the extended date would be problematical. On 29 November 2024 Clyde & Co wrote to the other Parties as follows:
Unfortunately, we are not available on any of the four dates below. As such, it appears that we will not be able to hold the meeting in January. We therefore propose to extend the requirement to 28 February 2025 and seek to find a suitable date in February instead.
Rather than submit a further consent order and incur unnecessary costs, please could you confirm agreement to this proposal by reply and we will rely on the parties’ ability to vary the time to do an act under CPR 2.11, informing the court of our agreement accordingly.
We should be grateful if you would also revert as soon as possible with dates of availability during February 2025. We will aim to do the same and are seeking confirmation from our client accordingly.
On 4 December 2024 Hawkswell Kilvington responded, giving dates up to 28 February 2025.
On 10 December 2024 DACB responded, indicating agreement to the meeting taking place in February 2025.
On 11 December 2024 DWF responded suggesting availability on 10 and 13 February 2025.
On 9 January 2025 Knights responded saying that their client was available on 10 and 13 February 2025.
Thus all five parties were agreeable to the date for the meeting being extended beyond 31 January 2025.
On 13 January 2025 Clyde & Co confirmed their availability for 10 February 2025.
Thus, it appeared to be settled that the meeting would take place on 10 February 2025, within the period of the stay ordered by Jefford J.
However, on 4 February 2025, Clyde & Co sent an email to the other parties as follows:
In respect of the ongoing water ingress issues, please see attached a further defect notice dated 11 January 2025 received by our client from WLHC ProjectCo Limited (ProjectCo).
Our client is currently engaged in discussions upstream with ProjectCo to urgently find a permanent solution to the water ingress issues affecting the basement archive. As detailed previously, our client has engaged a water ingress expert, Dr Rupert Pool, to assess these defects and opine on how to remediate them effectively to ensure a permanent solution. However, he is still working towards finalising his opinion and anticipates that he will be able to complete this by the end of February. As such, Dr Pool’s opinion will not be available prior to 10 February 2025 when the WP meeting is currently scheduled.
In light of this, our client proposes that the WP meeting does not go ahead on 10 February 2025 as planned and we therefore seek your clients’ agreement to postpone the WP meeting to the week commencing 3 March 2025, to allow for the expert report and discussions with ProjectCo regarding a solution to be concluded.
Whilst we acknowledge the inconvenience of postponing the WP meeting less than a week before it is scheduled, we believe that this is the best solution in the circumstances. The productivity of the WP meeting will be vastly improved if it is held on a date after the expert report has been prepared and we have responded to the outstanding queries from your clients, which remains our client’s intention. We believe that this also addresses the concerns shared by the parties to date.
If you are in agreement, we should be grateful if you would please confirm your consent to a proposed extension to the deadline for a WP meeting to 31 March 2025 and to provide your client’s availability to attend the WP meeting in the week commencing 3 March 2025.
On 5 February 2025 Hawkswell Kilvington notified the Second Defendant’s agreement to postpone the meeting and to consent to an extension of the deadline for that meeting to 31 March 2025. They indicated that they were looking forward to receiving a draft Consent Order.
On 7 February 2025 DACB notified the First Defendant’s agreement to the proposed extension to the deadline for a WP meeting to 31 March 2025.
Also on 7 February 2025, DWF notified the Third Defendant’s agreement to the postponement of the meeting, whilst questioning whether the proposed date in week commencing 3 March was too optimistic.
On 10 February 2025, Knights notified the Fourth Defendant’s agreement to the postponement of the meeting.
Thus there was agreement by email to the postponement of the meeting. An important issue before me was what was implied by that agreement as to any extension of the time for service of the Claim Form and Particulars of Claim and as to any extension of the stay.
The stay was due to expire on 22 February 2025 and the time for service of the pleadings on 26 February 2025.
On 6 March 2025 the Claimant applied to the Court seeking an extension of the stay to the end of March 2025. The application attached a “draft Consent Order”. The terms of the order sought were as follows:
1 The stay of these court proceedings shall be extended to 31 March 2025 to enable the parties to comply with the Pre-Action Protocol for Construction and Engineering Disputes.
2 Paragraph 1(d) of the Timetable Order, as amended, shall be further varied as follows:
(a) The parties shall endeavour to hold a Without Prejudice meeting between them by 31 March 2025.
3 Costs in the case.
This is the first application before me.
Although the draft order was headed “draft Consent Order”, the terms of the order had not been agreed between the parties, and it is in dispute before me whether I have jurisdiction to make the order, and, if I do, whether I should do so.
Notified of the proposed application:
DWF, acting on behalf of the Third Defendant, replied to say that they were taking instructions but that it was likely that the order for “costs in the case” would not be agreed. There was no suggestion that the underlying basis for the draft consent order, namely that the parties had agreed to attending a protocol meeting during March 2025, with a concomitant extension of the stay to allow such a meeting to take place, was in any way inaccurate.
DACB, acting on behalf of the First Defendant, replied to say that the agreement to extend the date for the protocol meeting did not carry with it an agreement to extend the stay, and as such “time for service of your client’s claim form has now lapsed”. This was the first time that such a suggestion was raised by any of the Defendants.
In response to DACB’s email, DWF then replied to reiterate that they were taking instructions and stated that “our observation about costs does not represent the entirety of our Client’s response to this afternoon’s communications from Clyde & Co”.
No response was received from either of the Second or Fourth Defendants on that day. The following day Hawkswell Kilvington, on behalf of the Second Defendant, wrote to say that they were also taking instructions and stating that they made “the same observations as DAC Beachcroft concerning (i) the Defendants’ purported agreement to extend the stay”.
No further correspondence was received from the Defendants until the following week, when a copy of a letter sent to the Court by DACB, the contents of which were agreed by the other Defendants, was provided to the Claimant on 12 March 2025. That letter stated as follows:
We represent the First Defendant, Arcadis Consulting (UK) Limited, in the above proceedings.
Without waiving common interest privilege, we confirm that, as per the enclosed email correspondence, the contents of this letter are approved and supported by all of the Defendants. We therefore respectfully request that this correspondence is treated as though it were issued on behalf of all of the Defendants.
We refer to the Claimant’s letter to the Court dated 6 March 2025 enclosing an application of the same date (the “Application”), pursuant to which the Claimant seeks an extension to the stay ordered by Mrs Justice Jefford on 10 June 2024 which expired on 22 February 2025.
As a preliminary point, we note the Application was issued via email only. Whilst we do not understand any of the Defendants’ representatives have ever confirmed to the Claimant that they are instructed to accept service via email, in the circumstances, the Defendants confirm they are willing to do so on this occasion.
Turning to the Application itself, the Court should note that this is in fact an application for an extension of time made for service of the claim form. We wish also to point out that, contrary to what is stated at numbered paragraph 6 of the Claimant’s letter to the Court, the extension sought by the Claimant therein has not been agreed by the Defendants, and it is intended to oppose the Application.
The Defendants disagree, as a matter of fact and/or law and/or procedure, that the parties “expressly, impliedly and/or through a course of dealing” agreed to extend the stay of proceedings, which is the basis of the Claimant's application, as contended in paragraph 21 of the supporting witness statement of Christopher Leadbetter.
In view of the above, it is apparent that an application hearing will be required. Given the number of parties involved, the Defendants consider a one-day hearing will be appropriate.
On 28 March 2025 the Claimant made a further application. This sought orders in the alternative (Options “A” and “B”).
The Option A order was an order providing:
1 The stay of these court proceedings is extended to [a date three weeks from the determination of the Claimant’s applications] pursuant to CPR 3.1(2)(g) and/or CPR 26.5(4).
2 Paragraph 1(d) of the Original Order shall be varied as follows:
(a) The parties shall endeavour to hold a Without Prejudice meeting between them by the date set out in paragraph 1 of this Order.
3 Costs in the case.
The Option B order was an order providing:
1 The stay of these court proceedings is extended to 31 March 2025 pursuant to CPR 3.1(2)(g) and/or CPR 26.5(4).
2 The time for service of the Claim Form and Particulars of Claim on the Defendants is extended to [a date three weeks from the determination of the Claimant’s applications] pursuant to CPR 7.6.
3 Costs in the case.
This application is the second application before me.