North Midland Construction plc v Geo Networks Ltd

Citation: [2015] EWHC 2384 (TCC), [2015] EWHC 3036 (TCC)

The dispute arose from contracts for the installation of underground cabling between cities in Scotland, Wales and the north of England. The claimant issued two sets of proceedings.

The defendant applied to strike out both claims on the grounds of failure to serve particulars within the required time. The claimant applied for extensions of time for service.

It was common ground that the claimant’s applications were to be treated as applications for relief from sanctions.

After briefly rejecting the claimant’s argument that the defendant had consented to an extension of time for the service of the particulars in one claim, Edwards-Stuart J went on to consider the guidance given by the Court of Appeal in Denton v White [2014] EWCA Civ 906.

In the first claim the particulars were due to be served on the 30th June 2015 but were not in fact served until the 17th July 2015. The Court considered that there was no good reason for this delay. The Court similarly regarded as a failure, the attempt to seek an agreement to an extension of time from the defendant on the 29th June 2015, one day before the deadline for service. The Court noted that there had been a previous adjudication on much the same issues as those in the proceedings before it. This had been in 2013, so the claimant had been working on its case for two years.

Edwards-Stuart J granted relief and the application for an extension of time in respect of the first claim. He stated that it was a finely balanced claim and he noted that the particulars had, by the time of the hearing, been served.

In the second claim, the particulars were due to be served on 2nd June 2015 but were not in fact served until some six weeks later. The claimant had three interim expert reports in March, April and June 2015 and was unable to produce any good reason for the delay in serving.

Edwards-Stuart J considered that the failure was a serious one for which there was no satisfactory explanation and he therefore struck out the claimant’s second claim.

In later proceedings ([2015] EWHC 3063 (TCC)) for the costs of the applications Edwards-Stuart J made a small deduction to the defendant’s solicitors’ fees for the second application and rejected a challenge to counsel’s fees. In respect of the first application he held that the claimant was to pay the defendant’s costs of the application. He noted that the claimant was only saved from having its first claim struck out by having served its particulars at the last moment.

Justin Mort QC acted for the defendant

Judgment

Counsel

Justin Mort QC

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