SWANSEA STADIUM MANAGEMENT COMPANY V CITY & COUNTY OF SWANSEA [2019] EWHC 989 (TCC)
There is to be be no appeal from the Judgment of Peperrall J
Paul Darling QC is a leading Advocate, Barrister and Queens Counsel
By DarlingQC
SWANSEA STADIUM MANAGEMENT COMPANY V CITY & COUNTY OF SWANSEA [2019] EWHC 989 (TCC)
There is to be be no appeal from the Judgment of Peperrall J
By DarlingQC
In June 2018 O’Farrell J held that a claim by the tenant of the Liberty Stadium Swansea, the beneficiary of a collateral warranty complaining of a failure by a contractor to construct the stadium in accordance with a JCT building contract was statute barred. That decision is now reported at [2019] BLR 652.
Two points of importance emerged from that Judgment. First, the collateral warranty was retrospective and the tenant was subject to the same limitation period as the employer would have been under the building contract. Second, because of the deeming provision in the JCT contract, practical completion was deemed to have occurred on the date specified in a notice given by the employer. This meant that the tenant’s primary claim – referred to as the Original Construction Claim – was statute barred, having been issued 12 years and 5 days after practical completion was deemed to have taken place.
That left what Pepperall J has described (2019 EWHC 989 TCC) as a secondary claim against the contractor. The tenant’s allegation was that the contractor was in breach of its obligations under Clause 16.2 and .3 of the building contract to identify and make good the flooring and paintwork defects during the Defects Liability Period.
The tenant’s claim was tried over eight days in the TCC and Pepperall J gave judgment last week. The tenant’s claim against the contractor failed, as did other claims that it had against the owner of the stadium.
The tenant’s claims failed because the employer had issued a Notice of Completion of Making Good Defects (‘the notice’). The contract provided that completion of making good defects shall be deemed, for all purposes of the contract, to have taken place on the day named in the notice. The Judge held that the notice had the effect of barring any claim for breach of the defect liability provisions.
He drew a distinction between claims for breach of Clause 16, which the notice barred and claims for the original construction defects (described in the Judgment as claims under the core provisions of the contract if there were outstanding or defective works) which the notice did not touch. As the Judge pointed out this was consistent with O’Farrell J’s construction of the similar deeming provision in relation to practical completion.
Even though the claim failed because of the notice the Judge still identified and analysed the contractor’s obligations under the defect’s liability provisions. In relation to one category of defects, he found, in effect, that the claim would have failed because whilst the tenant was able to point to defects in the work, it was unable to point to defects that existed during the Defects Liability Period or to defects that had not been properly identified or remedied according to the contract. The tenant would have had to identify a defect that the contractor ought to have identified and rectified but had not. The tenant could not do so.
Whilst that is interesting as a matter of forensic analysis, it will be unusual for the claim for the original construction to be time barred and the only claim to be left to be one under the Defects Liability Period.
It remains to be seen whether tenant will make an application for permission to appeal.
Paul Darling QC represented the contractor both in the summary judgment application in front of O’Farrell J and in the Trial in front of Pepperall J.
By DarlingQC
This is the address that I made on the occasion of Mrs Justice O’Farrell being sworn in by the LCJ
My Lords, as your Lordships will appreciate, the Bar is always delighted to join your Lordships in welcoming those who have been elevated to the High Court Bench. It is indeed a true privilege for me, on behalf of the Bar, to adopt what your Lordship has said and to wish Mrs Justice O’Farrell well as she embarks on her new responsibilities.
The then Miss O’Farrell arrived as a pupil at the newly installed 10 Essex Street in the autumn of 1985. She was an immediate success showing from the very start the clarity and intellectual rigour for which she has become so well known. Many of us still remember the foolscap sheets upon which she wrote her Advices in clear handwriting in jet black ink, identifying the issues and giving succinct and obviously right answers.
She glided effortlessly from pupillage into tenancy. My lady may remember that there was a celebration by a trip to the Chelsea Flower Show to mark that momentous event. She joined a peer group then which included Mr Justice Coulson, Mr. Taverner, Queens Counsel, who spoke in your Lordship’s Court last week and me. She was a delightful as well as formidable colleague. She quickly developed very substantial advisory and advocacy practices.
In her advisory practice, she was known for giving clear, simple and easily understandable advice, much appreciated by clients of all different types.
As an advocate she rapidly acquired a very considerable reputation. However difficult the case became – whether the collapsing witness, the difficult client or the occasional testing questions from the Bench, she never faltered. When researching this speech, I was given numerous examples by people of her calmness under fire. The words that were used were “strong”, “dignified”, “resilient,” “resolute,” “ full of integrity”, “unflappable,” “compelling” and ultimately “sheer quality”. It is important also not to forget her humanity, her warmth and her compassion.
In the mists of all these achievements she has been an attentive supportive and loving mother to her daughter Siobhan, whom I know to be the proudest person in your Lordships Court this morning. And of course we remember my Lady’s adored and admired late Husband Stuart – a compatriot of mine from the north east of England – whose delight this morning would have been palpable.
There can be no question that my Lady richly deserves this appointment.
She was for many years my Deputy when I was Head of Chambers. She was always supportive, no matter what the crisis. Never for her the “No, I’m too busy”. She demonstrated exactly the same characteristics in that role as in every part of her life and in her practice.
As well as being a thoroughly deserved appointment, this is a very significant appointment for the Technology and Construction Court. That Court is staffed by a magnificent combination of talents. Mr. Taverner last week referred to the gender equality that had been achieved. I tell your Lordships that the Technology and Construction Bar is very proud indeed of its achievements in that regard.
However, my Lady’s Appointment is also of great significance internationally. I was in Hong Kong when my Lady’s appointment was announced and was with three very senior Hong Kong construction solicitors. I was first struck by the delight that the three of them had at my Lady’s appointment when they saw it on the Internet. However, it did not stop there. It led to a conversation about how exciting it was that an international figure in construction law had been appointed to the London Technology and Construction Court. A world class addition to a world class Court.
My Lords, the Construction Bar is very proud indeed of my Lady’s achievement. That pride is I know shared by our colleagues in the solicitors profession and by the body of expert witnesses who practise in our field. I hope I will be forgiven for mentioning the late Donald Keating QC, the founding mind of Keating Chambers, to whom so many of us here owe so much. He, I know, had a very profound respect and affection for my Lady. When he was Head of Chambers and My Lady became a tenant in his Chambers, he identified, and I recall it very clearly, the same characteristics that I have referred to this morning. He was a great admirer of hers.
He would today have been proud beyond measure. My Lords, today we are all proud beyond measure. This is a simply brilliant appointment.
By DarlingQC
I was lucky enough to attend the LCIA Symposium at Tylney hall this last weekend. It reminded me just how expert and focused the international arbitral community is. The format was also interesting – pre identified topics thrown open to discussion. Informative and enjoyable and a simply brilliant speech after dinner from Karyl Nairn QC.
Judith Gill QC now takes over as President of the LCIA Court. Whilst she has a tough act to follow in Rusty Park, she will I am sure be a great success.
I hope they let me go again….
By DarlingQC
It takes a lot to get me from my normal blogging territory of construction and energy. Two things have managed to do it.
The first is the flurry of comments on twitter and other social media describing the retirement of Lord Dyson, the Master of the Rolls as “premature” and as indicative of some greater malaise in the judiciary. Just a second. Lord Dyson will retire in October aged 73, having been the Master of the Rolls for 4 years and a Judge for 23 years.He could have retired 8 years ago and taken his full pension. The flurry about Lord Dyson’s retirement disguises the real issue which is the effect of a combination of recent changes in judicial terms and conditions and the taxation of pensions on retention of younger Judges and recruitment of new ones. Recent changes have a disproportionate effect on new and young but senior judges. The package of a High Court Judge appointed now is significantly worse than that provided to an appointee in 2010. People credibly talk of the net package now as 70% of what it was then. A pay cut of 30% !
The surprise is not that there are some retirements that might look a little early, but that people bother to do the job at all and when they do, they stay more than five minutes. Perhaps, it is time now to adopt the practice of other jurisdictions where Judges act as Public Judges for part of the year and as International Arbitrators or in similar roles for another part. I am probably the wrong one to ask because I have never wanted to be a Judge. However, taking an appointment now involves a very considerable sacrifice for comparatively little benefit. It is public service but at great personal expense. Let us hope that the powers that be in the Ministry of Justice can address this problem. The slightly enhanced salary recently suggested can only be described as a start. It is, I suspect, the time for some innovative thinking.
In the midst of the Twitter outrage about Lord Dyson’s allegedly premature departure from the sinking ship, I came across some hostile observations about Lord Justice Jackson. They hit a new height in the Brief, the Times excellent email morning update, this morning where Mr David Golten, a solicitor, felt it right to say “as to litigation being exorbitantly expensive, I am not aware of any briefs returned by Rupert Jackson, QC, when he was practising at the Bar because the fees were too high”.
Cheap but also unfair. I was often led by Rupert Jackson QC. In fact, his fees were always remarkably reasonable, if not low. Mr Golten’s comment is unfair. There was no element of bunce in fees charged by Rupert Jackson QC. As his junior, I can testify to that. Furthermore, having agreed reasonable fees, he used to put in prodigious amounts of work and certainly many more hours than he was charging for. When doing a trial, he often worked through the night. My happiest memory is of a case where I was one of his juniors. I was released from this particular part; he thought that he only needed one junior and not two. Saving costs, even then. The remaining junior was being worked to within an inch of his life. Suddenly respite came. Rupert said “Let’s have some supper” and the junior relaxed. Salvation was at hand. “We’ll go to Café Rouge” he said. But sadly there was to be no rest. Jackson ordered ahead by telephone. The pair duly had three courses and coffee in no more than 16 minutes and returned quickly to their papers for the night’s work to continue.
I know that Lord Justice Jackson’s reforms have caused strong views. Of course, there is room for more than one view about some or all of the costs and procedural reforms that he has pioneered. Surely, however, no one would think that the old CFA system, which ramped fees up to an extraordinary extent could survive without reform. Surely no one could have thought that civil procedure did not need a kick applying to it to make it more efficient? Of course the view that some of the reforms may have gone too far is an understandable one, whether right or wrong. But don’t pretend that there weren’t problems that somebody had to have the courage to come and at least try and solve. And in this debate, we really should be talking about the issues rather than taking what look like cheap shots at individuals.
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