Bentley Design Consultants Ltd v Sansom, Court of Appeal - Technology and Construction Court, August 29, 2018, [2018] EWHC 2238 (TCC)

Resolution Date:August 29, 2018
Issuing Organization:Technology and Construction Court
Actores:Bentley Design Consultants Ltd v Sansom
 
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Case No: CLAIM NO. A48YJ615

Neutral Citation Number: [2018] EWHC 2238 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ON APPEAL FROM THE EXETER COUNTY COURT

Date: 29/08/2018

Before :

MRS JUSTICE JEFFORD DBE

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Between :

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Catherine Piercy (instructed by Kennedys) for the Appellant--------

--------Tom Coulson (instructed by Nunn Rickard Litigation Ltd) for the Respondent

Hearing dates: 23 July 2018

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JudgmentMRS JUSTICE JEFFORD DBE :

  1. This is an appeal from the decision of His Honour Judge Cotter QC made on 26 January 2017. I heard this appeal on 23 July 2018 and dismissed the appeal, giving brief reasons, with full written reasons to follow in due course. These are those reasons.

  2. The appeal concerns what, on its face, is a short issue as to the proper construction of a Part 36 offer made in these proceedings on 23 April 2015.

  3. I set out first the background to this issue and how it arose. I will generally refer to the Claimant/Respondent as Mr Sansom and the Defendant/Respondent as Bentley.

    Procedural background

  4. Mr Sansom is the owner of a site in Exmouth on which he undertook the construction of two properties, referred to as Plot 1 and Plot 2. On or about 6 May 2011, Mr Sansom engaged Bentley to provide structural engineering services.

  5. By letter dated 19 December 2013, Foot Anstey (solicitors acting on behalf of Mr Sansom) wrote to Bentley setting out Mr Sansom's claim. The letter made reference to the fact that Mr Sansom was constructing 2 new dwellings on the site and pleaded a contract for services formed by a request for a quotation dated 5 May 2011, an offer from Bentley dated 6 May 2011, and the acceptance of that offer (without specifying whether this contract related to Plot 1 or Plot 2 or both). The letter than made a claim in respect of Plot 1 which it was said had suffered cracking because of the lack of expansion joints, contending that the design of expansion joints was Bentley's responsibility. The claim was said to be for damages being additional financing costs, the cost of repair, additional time managing the remedial works, and loss caused by delay in putting the property on the market. The total sum claimed was £35,025.14 (plus interest).

  6. In February 2014, Mr Sansom commenced proceedings against Bentley. The Claim Form gave the brief details of claim as a ``claim for damages for breach of contract and/or professional negligence''. The Particulars of Claim (dated 18 February 2014) were largely in the same terms as the December claim letter. The claim was, therefore, clearly in respect of Plot 1 only and the claim was for £35,025.14.

  7. By an open letter dated 20 March 2014, Kennedys, Bentley's solicitors, responded to the December claim letter. The letter said that Bentley was the structural engineer engaged by Mr Sansom to design the structural elements of two new properties on the site but also expressly stated that Bentley's quote dated 6 May 2011 was in respect of Plot 1. At paragraph 2, Kennedys said:

    ``Our client accepts that movement joints were required in the present case and that the terms of their engagement included advising upon their use and positioning. To the extent that they failed to do so, breach of duty is admitted.''

    However, they took issue with causation of loss and the damages claimed.

  8. By a further letter of the same date (marked Without Prejudice Save as to Costs), Kennedys offered ``£5,000, plus reasonable costs, in full and final settlement of this matter''.

  9. Foot Anstey responded to that letter on 20 June 2014, apparently following further discussions and responding to queries. The letter was headed ``Re. Plot 1, Seafield Avenue, Exmouth''. The letter said that, as discussed, Mr Sansom had a further claim to make against Bentley in relation to the second property on which he was taking advice. It continued ``If matters cannot be resolved then a claim will be issued in relation to the second issue and this can then be joined to this claim and dealt with in the same proceedings.''

  10. There was then a period during which the parties agreed stays of the proceedings and/or extended time for the service of the Defence. On 7 April 2015, following some recent communication, Kennedys wrote stating that they expected proper consideration to be given to the offer of £5,000. The letter expressly stated that it related to ``the alleged issues arising at Plot 1 Seafield Avenue only (the Claim)''.

    The 23 April offer

  11. That was followed on 23 April 2015 by the letter that is central to the issue on this appeal (``the 23 April offer''). That letter was sent by Foot Anstey to Kennedys. It was stated to be ``without prejudice save as to costs'' but also to be an offer pursuant to CPR Part 36. It identified the claim by reference to the claim number A48YJ616. The offer was that ``Your client will pay to our client the sum of £25,025 in full and final settlement of the whole of this claim''.

  12. There can be no doubt that, at the time this offer was made, it was an offer to settle the claim in respect of Plot 1 only and Bentley does not dispute that. The only claim that had been made was that in respect of Plot 1: the claim in respect of Plot 2 was in contemplation but had not been made. The claim in the claim bearing the number referenced was only in respect of Plot 1. The offer was to settle ``the whole of this claim'' - if any further clarity were required, that wording made clear that it was an offer to settle the existing claim and not any potential claim. On this appeal, Bentley do not seek to argue differently but they argue that things changed.

  13. The offer was not at this point accepted. On 13 May 2015, Kennedys took two further steps. Firstly, they wrote an open letter, expressly relating to Plot 2, with the subject line ``The Property: Plot 2, Seafield Avenue''. That letter stated that they were in the process of appointing an expert and said that it may be appropriate for experts to speak. Secondly, Kennedys wrote a second letter ``without prejudice save as to costs'' with the subject line ``The Property: Plot 1, Seafield Avenue''. That letter referred back to Foot Anstey's letter of 23 April 2015 and continued:

    ``You will be aware that we have today sent an open letter in relation to Plot 2. While we appreciate that the matters in respect of the Property and Plot 2 stand alone, we note from previous correspondence that you and your client are of the view that there is merit in attempting to deal with the two matters together. We concur that this approach is most likely to enable the parties to achieve an acceptable settlement in a proportionate manner.

    We are conscious that the proposed directions mean that our client's Defence is due on 28 May 2015. However, in the light of our open letter, relating to Plot 2, our view is that it would be preferable for the parties to enter into a stay on the basis that we are obtaining expert evidence.

    ....''

  14. I quote from this letter because it makes it plain that, although not entirely consistent with the headings of their letters, Kennedys were, at this time, treating the claim in respect of the Property (that is, Plot 1) as distinct from the claim in respect of Plot 2. However, they indicated their agreement that it would be sensible, as Foot Anstey had proposed in 2014, for the two matters to...

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