McDonald & Anor v D&F Contracts Ltd, Court of Appeal - Technology and Construction Court, March 19, 2018, [2018] EWHC 1600 (TCC)

Resolution Date:March 19, 2018
Issuing Organization:Technology and Construction Court
Actores:McDonald & Anor v D&F Contracts Ltd

Case No: HT-2017-000253

Neutral Citation Number: [2018] EWHC 1600 (TCC)




The Rolls Building

7 Rolls Buildings

Fetter Lane

London EC4A 1NL

Date: Monday, 19th March 2018



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MR. MATHIAS CHEUNG (instructed by DWF LLP) for the Claimants

THE DEFENDANT did not appear and was not represented

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JudgmentIf this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

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  1. This is an application for judgment in default. It is made specifically on the basis that the defendant has failed to file in time either an acknowledgement of service or a defence. In the event that that application is unsuccessful there are alternative applications for summary judgment and/or striking out of the defence which had, as will become apparent, been filed (albeit out of time).

  2. This is, in a number of respects, a rather unusual case. The claimants, Mr. and Mrs. McDonald, are represented by solicitors and counsel, Mr. Cheung, although solicitors have not, no doubt to conserve costs, appeared on this application. The defendants are a construction company, D&F Contracts Limited. They are not legally represented and they have not appeared on this application which has proceeded in their absence.

  3. The claimants are the owners of a property at 1 Regent Terrace in Edinburgh. They wanted to carry out substantial refurbishment work to the property and make it their home. The defendants tendered for the works in the sum of £633,473 including VAT. It is pleaded that on 15 November 2013 architects acting for the claimants accepted that tender by a letter of intent that incorporated the JCT Standard Form of Building Contract Without Quantities 2009 edition. It therefore appears to be the claimants' case that, despite its title, the effect of the letter of intent was to form a contract, although I understand from Mr. Cheung this morning, that that may not always have been the position.

  4. I have not, however, been provided with any further detail of the contract. In accordance with Practice Direction 16 at paragraph 7.3:

    ``Where a claim is based upon a written agreement: (1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim ...''

    But that is not what has been done in this case. In at least one little respect, that has caused me some concern on this application.

  5. The works began on site in November 2013. There was, apparently, a programme that formed part of the agreement, under which the works were to be completed by 24 July 2014. The claimants' case is that during the course of the works they had concerns about defective works, omitted works, lack of co-ordination, delay, and out of sequence working causing further delay. I take that from paragraph 11 of the Particulars of Claim. By December 2014 the works remained incomplete. On 5 December the claimants asked the defendant to leave site and on 7 December, by their architect, they accepted what they allege to be the defendant's repudiatory breach as terminating the contract.

  6. The claimants say that they then became aware of further problems (which I will return to shortly) and that as a result of the defendant's breaches they have suffered loss and damage. I have, on this application, a statement of Ms. Heaps of the claimants' solicitors, DWF. She says that on 15 November 2016, that is about two years later, a letter of claim was sent to the defendant. There were further attempts to engage in correspondence, but no response was received at all.

  7. I was aware from the papers before me that there had, in the interim, been an adjudication. Mr. Cheung has helpfully provided me this morning with copies of the decisions in two adjudications, both dated 24 June 2015. One relates to an application for an interim payment which resulted in a decision in favour of the defendant which has not, in the event, been paid by the claimant. The other decision relates, as I understand it, to a valuation which was post termination and may have been closer to a final account claim. That resulted in no further award in the defendant's favour.

    These proceedings

  8. In September 2017 the claimants issued these proceedings in the Technology & Construction Court in London. These proceedings, including the Claim Form and Particulars of Claim, were served on the defendant whose registered office is in Scotland. I have been provided with a copy of the certificate of service to the effect that the documents were served on 15 September 2017 so that the deemed date for service was 19 September 2017. Rules 6.3(2) and 6.35(2)(a) therefore apply so that, as Ms. Heaps rightly says in her statement, the date for filing of an acknowledgement of service or Defence was 21 days from the date of service of the Particulars of Claim, that is 10 October 2017. If an acknowledgement of service had been filed, the date for filing the Defence would have been 35 days from the date of service of the Particulars of Claim, that is 24 October 2017.

  9. It is quite clear that no acknowledgement of service was filed so the date for filing of a defence was, in the event, 10 October 2017. No defence was filed by that date. However, on 31 October 2017 a document that purports to be the Defence was filed. It is dated 19 October 2017 but was not filed until later.

  10. On 1st November, apparently unaware of the filing of that Defence, the claimants made a request for judgment in default under rule 12.4(1), in...

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