| Date | 5 July 2000 |
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| Judgment | Bovis Land Lease Ltd -v- Braehead Glasgow Limited TCC 19 April 2000. |
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| The Issue | Use of summary judgment procedures under Part 24 of the Civil Procedure Rules. |
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| Implication |
CPR Part 24 is for use where there is no real prospect of being successful or succeeding in defence of cases and which will not require a mini trial of the issues. |
printPart 24 of the Civil Procedure Rules allows a claimant to make an application for summary proceedings in circumstances where the issues in dispute between the parties do not require full investigation at a trial. Part 25 similarly allows for interim payments of amounts stated to be due. The correct approach to Part 24 applications was the subject of guidance from the Court of Appeal in Swain -v- Hillman, a decision of 21 October 1999. It was held that the words "no real prospect of being successful or succeeding" which are used in Part 24, speak for themselves and do not need amplification. In other words, an order under Part 24 will normally not be given where the defendant can show a real prospect of being successful or succeeding with its defence to the claim. Typically therefore, Part 24 has been useful in circumstances where there is no arguable defence such as, for example, for the enforcement of the decision of an adjudicator. The manner in which Part 24 might operate where the disputed issues were potentially more complex was examined in the recent case between Bovis Lend Lease -v- Braehead Glasgow Ltd. Braehead engaged Bovis as contractor for the design and construction of a shopping and leisure centre at Braehead in Glasgow. The project is substantial. The contract sum was £184 million, and Braehead has paid £216 million. Bovis are suggesting a final account in the order of £242 million. The amount and responsibility for this overrun is the subject of a dispute between the parties. Bovis however made an application to the court for summary judgment in respect of two interim payment applications totalling approximately £8.8 million excluding VAT. Braehead defended these applications on the grounds that it was entitled to deduct liquidated and ascertained damages in the amount of approximately £7 million for late completion and further counterclaims for damages in the amount of £16 million. These allegations include that Bovis failed properly to manage the works, failed to exercise proper cost control and was responsible for extensive defective work. In front of the Honourable Mr Justice Dyson QC, Bovis contended that these claims for damages were wholly without foundation. As for the asserted right to deduct liquidated damages, Bovis argued on a number of different fronts. Firstly that extensions of time had been awarded or agreed. Secondly that by the terms of the contract Braehead were not entitled to deduct damages in respect of delay caused by sub-contractors, and thirdly that Braehead had failed to operate the terms of the contract in respect of notices of delay and notices of deduction of damages. Mr Dyson noted at the outset that he regarded the case to be interlocutory litigation on a massive scale. At first sight this was not promising territory for an application for summary judgement or for an interim payment. He noted that the proper disposal of an issue under Part 24 did not involve the judge conducting a 'mini-trial' and nor was it appropriate for the judge to attempt to resolve disputed questions of fact. On the question of whether the deduction of liquidated damages was untenable, Mr Dyson recognised that there was plainly difficult issues of fact about whether any agreement had been reached in regard to extensions of time or indeed whether any delay had been caused by sub-contractors. The factual inquiry that would have to be made in respect of these matters would be complex. In respect of the Employer's notices, whilst it could be seen that notices in respect of certain sections of the works had been given too late, it was reasonably clear that letters written by Braehead would satisfy the requirements of the contract. For these reasons Braehead had an arguable entitlement to deduct a substantial part of the liquidated damages in contention. As to the other damages contended for by Braehead, Mr Dyson became convinced that Braehead had a real prospect of succeeding on its counter-claim at least sufficient to extinguish the amounts claimed by Bovis. Accordingly the applications made by Bovis were to be dismissed. The purpose of Part 24, in the words of Lord Woolf, was that in appropriate cases it would save expense, achieve expedition, avoid the court's resources being used up on cases where it served no purpose and generally be in the interest of justice. In Mr Dyson's view these objectives had not been met and the applications made by Bovis were entirely inappropriate for the Part 24 procedures.
CJ-0026
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