Cockell (t/a Cockell Building Services ) v Holton (No 2)
Citation:  EWHC 1117 (TCC)
Nature of case:
This case concerned an application for relief from sanctions where Cockell had provided building services to Holton, whose home near Warwick had suffered extensive damage in a fire.
Cockell alleged an underpayment of £242,000. Holton replied with a Defence and Counterclaim which alleged overpayments of £238,000 and that the Cockell had carried out the works defectively, requiring Holton to have the works carried out again at a cost of £1.6m.
Cockell applied for, and was granted, an unless order requiring filing and service of the re-pleaded Defence and Counterclaim by 20th March 2015, in default of which the counterclaim was to be struck out. An amended Defence and Counterclaim was sent to Cockell on the 20th March but due to a typographical error in the email address to which the court copy was sent, the Defence and Counterclaim did not reach the court until the following week. In any event, it was clear that the amended Defence and Counterclaim was still pleaded with insufficient particularity. Holton applied for relief from sanctions.
Edwards-Stuart J held that the Defence and Counterclaim was still far too vague and therefore did not meet the requirements set out in the order of Akenhead J. Therefore, notwithstanding Holton’s argument that the failure to send the amended version to the correction email address was merely a technical breach, Akenhead J’s order had not been complied with and the issue was therefore whether and what sanctions should be applied.
Edwards-Stuart J applied the test for relief from sanctions and found that the breach was both significant and lacking in any satisfactory explanation. He therefore struck out Holton’s counterclaim in so far as it related to the allegation of defective workmanship.
However, he did allow Holton to amend its Defence to take account of these allegations and utilise them solely as a defence to Cockell’s claim for underpayment. The effect of this was limited to erasing the value of Cockell’s claim, but could not be used by Holton to recover any further sum.
Counsel: William Webb appeared for the Claimant.