Breach of contract – Issue of proceedings – Time limit – Claimant company acquiring land for development – Claimant instructing defendant adviser to apply for planning permission – Planning application being submitted after agreed deadline – Claimant sacking defendant and making fresh application through different adviser – Claimant seeking damages against defendant for breach of contract and/or negligence – Defendant counterclaiming for cost of additional work – Whether claim being time-barred – Whether defendant entitled to claim for additional work – Claim dismissed – Counterclaim allowed in part
The claimant was a demolition and recycling contractor. Since September 2007, it had owned a two-acre plot of industrial land in Colchester. Two months before the claimant acquired the site for £561,000, it instructed the defendant, a company which advised about planning matters concerning waste management sites, to apply for planning permission for waste recycling at the site. The application was to be made at the end of November 2007.
The planning application was not made until 3 April 2008 and the defendant was working towards the resolution of that application by about 25 July. However, on 15 July 2008, the claimant withdrew the planning application and sacked the defendant. Thereafter, the claimant, using different consultants, made a fresh planning application which was not granted until seven months later. Notwithstanding the eventual grant of permission, the claimant was unable to sell the site.
The claimant claimed damages against the defendant for breach of contract and/or negligence arising out of the timing and content of the defendant’s original application for planning permission. First, it said that the application should have been made by the end of November 2007 and that the defendant had been in breach of contract in failing to complete the application by that date. Secondly, even when the application was made in April 2008, it was deficient in numerous respects. The claimant argued that, had planning permission been granted earlier, it would have sold the site in April or May 2008 to a waste contractor. As a result of the delay, it had suffered loss of profit.
The defendant counterclaimed. Its main submission was that any proceedings had to be issued a year after termination of the contract, by 15 July 2009, and the failure to do so by that date barred the claimant from bringing its claim at all. In any event, it had carried out additional works, for which it ought to be paid, and involvement of the waste contractor had created extra work that was outside the original contract.
Held: The claim was dismissed. The counterclaim was allowed in part.
(1) As a matter of principle, the parties to a contract could vary the ordinary six year limitation period. However, in the High Court, proceedings were commenced when a claim form was issued in accordance with CPR 7.2(1). The word “filed” relied on in clause 11 of the present contract was not apt to describe the commencement of proceedings in the UK jurisdiction. In particular, the filing of claims was not a process recognised by English court procedure. Although “filing” was defined in the White Book and there were numerous references to filing documents of various sorts in the CPR, those all pre-supposed that the proceedings had already been commenced: Inframatrix Investments Ltd v Dean Construction Ltd [2012] EWCA Civ 64 distinguished; Ener-G Holdings v Philip Hormell [2012] EWCA Civ 1059; [2012] 3 EGLR 61; [2012] 45 EG 96 considered.
(2) Pursuant to the pre-action protocol suitable for TCC claims, prospective parties went through a lengthy process before proceedings were even commenced. It was designed to try and bring about a settlement of any outstanding claim. The process was commenced when the claiming party sent a letter of claim. The words in clause 11 could properly be read as a reference to the sending of the letter of claim under the TCC pre-action protocol, rather than the commencement of proceedings in court. It was axiomatic that exclusion clauses of that type had to be construed strictly and contra proferentem. On either approach, the court had to give the claimant the benefit of any doubt arising from the words used by the defendant in their standard terms and conditions. In those circumstances, the court was unable to construe clause 11 as requiring the claimant to issue proceedings within a year of the termination of the defendant’s services.
(3) During the calendar year following the termination of the defendant’s services on 15 July 2008, the claimant indicated a possible claim only once in a letter dated 29 May 2009. That was a general and unparticularised notice of a claim that might be made in the future. The letter of claim, which complied with the professional negligence pre-action protocol, was not sent until 2 June 2010, well outside the period prescribed by this clause. The letter of 28 May 2009 did not comply with clause 11, properly construed, which was designed to provide some form of certainty and required the provision of something akin to the letter of claim in the pre-action protocols. That would require, amongst other things, a clear summary of facts on which each claim was based and the basis on which each claim was made, identifying the principal contractual terms and statutory provisions relied on. The use of the words “all claims” in clause 11 indicated that it meant something more than simply the intimation that, at some point in the future, a wholly unparticularised claim might be made. The use of the word “filed” also denoted a degree of formality, suggesting the actual making of a claim, rather than a generalised notice of such a claim. Although the letter of 2 June 2010 complied with clause 11, it was not provided within the year stipulated by that provision. Accordingly, clause 11 operated to prevent any recovery in the present proceedings.
(4) As regards the defendant’s counterclaim, the work done after the planning application had been submitted, and in particular the work done in responding to the consultees, was not additional work, but was within the scope of the original contract. There was nothing in the contract to say that any necessary work to clarify any aspect of the completed application would be additional work; on the face of it, it was all part and parcel of making a full application. However, the involvement of a waste contactor had created extra work that was outside the contract and the counterclaim would be allowed to that limited extent in the sum of £3,500.
Peter Susman QC (instructed by Birkett Long LLP) appeared for the claimant; Anneliese Day QC and Richard Liddell (instructed by Weightmans LLP) appeared for the defendant.
Eileen O’Grady, barrister
Elvanite Full Circle Ltd v AMEC Earth & Environmental (UK) Ltd
Breach of contract – Issue of proceedings – Time limit – Claimant company acquiring land for development – Claimant instructing defendant adviser to apply for planning permission – Planning application being submitted after agreed deadline – Claimant sacking defendant and making fresh application through different adviser – Claimant seeking damages against defendant for breach of contract and/or negligence – Defendant counterclaiming for cost of additional work – Whether claim being time-barred – Whether defendant entitled to claim for additional work – Claim dismissed – Counterclaim allowed in partThe claimant was a demolition and recycling contractor. Since September 2007, it had owned a two-acre plot of industrial land in Colchester. Two months before the claimant acquired the site for £561,000, it instructed the defendant, a company which advised about planning matters concerning waste management sites, to apply for planning permission for waste recycling at the site. The application was to be made at the end of November 2007. The planning application was not made until 3 April 2008 and the defendant was working towards the resolution of that application by about 25 July. However, on 15 July 2008, the claimant withdrew the planning application and sacked the defendant. Thereafter, the claimant, using different consultants, made a fresh planning application which was not granted until seven months later. Notwithstanding the eventual grant of permission, the claimant was unable to sell the site.The claimant claimed damages against the defendant for breach of contract and/or negligence arising out of the timing and content of the defendant’s original application for planning permission. First, it said that the application should have been made by the end of November 2007 and that the defendant had been in breach of contract in failing to complete the application by that date. Secondly, even when the application was made in April 2008, it was deficient in numerous respects. The claimant argued that, had planning permission been granted earlier, it would have sold the site in April or May 2008 to a waste contractor. As a result of the delay, it had suffered loss of profit. The defendant counterclaimed. Its main submission was that any proceedings had to be issued a year after termination of the contract, by 15 July 2009, and the failure to do so by that date barred the claimant from bringing its claim at all. In any event, it had carried out additional works, for which it ought to be paid, and involvement of the waste contractor had created extra work that was outside the original contract.Held: The claim was dismissed. The counterclaim was allowed in part. (1) As a matter of principle, the parties to a contract could vary the ordinary six year limitation period. However, in the High Court, proceedings were commenced when a claim form was issued in accordance with CPR 7.2(1). The word “filed” relied on in clause 11 of the present contract was not apt to describe the commencement of proceedings in the UK jurisdiction. In particular, the filing of claims was not a process recognised by English court procedure. Although “filing” was defined in the White Book and there were numerous references to filing documents of various sorts in the CPR, those all pre-supposed that the proceedings had already been commenced: Inframatrix Investments Ltd v Dean Construction Ltd [2012] EWCA Civ 64 distinguished; Ener-G Holdings v Philip Hormell [2012] EWCA Civ 1059; [2012] 3 EGLR 61; [2012] 45 EG 96 considered.(2) Pursuant to the pre-action protocol suitable for TCC claims, prospective parties went through a lengthy process before proceedings were even commenced. It was designed to try and bring about a settlement of any outstanding claim. The process was commenced when the claiming party sent a letter of claim. The words in clause 11 could properly be read as a reference to the sending of the letter of claim under the TCC pre-action protocol, rather than the commencement of proceedings in court. It was axiomatic that exclusion clauses of that type had to be construed strictly and contra proferentem. On either approach, the court had to give the claimant the benefit of any doubt arising from the words used by the defendant in their standard terms and conditions. In those circumstances, the court was unable to construe clause 11 as requiring the claimant to issue proceedings within a year of the termination of the defendant’s services.(3) During the calendar year following the termination of the defendant’s services on 15 July 2008, the claimant indicated a possible claim only once in a letter dated 29 May 2009. That was a general and unparticularised notice of a claim that might be made in the future. The letter of claim, which complied with the professional negligence pre-action protocol, was not sent until 2 June 2010, well outside the period prescribed by this clause. The letter of 28 May 2009 did not comply with clause 11, properly construed, which was designed to provide some form of certainty and required the provision of something akin to the letter of claim in the pre-action protocols. That would require, amongst other things, a clear summary of facts on which each claim was based and the basis on which each claim was made, identifying the principal contractual terms and statutory provisions relied on. The use of the words “all claims” in clause 11 indicated that it meant something more than simply the intimation that, at some point in the future, a wholly unparticularised claim might be made. The use of the word “filed” also denoted a degree of formality, suggesting the actual making of a claim, rather than a generalised notice of such a claim. Although the letter of 2 June 2010 complied with clause 11, it was not provided within the year stipulated by that provision. Accordingly, clause 11 operated to prevent any recovery in the present proceedings.(4) As regards the defendant’s counterclaim, the work done after the planning application had been submitted, and in particular the work done in responding to the consultees, was not additional work, but was within the scope of the original contract. There was nothing in the contract to say that any necessary work to clarify any aspect of the completed application would be additional work; on the face of it, it was all part and parcel of making a full application. However, the involvement of a waste contactor had created extra work that was outside the contract and the counterclaim would be allowed to that limited extent in the sum of £3,500.Peter Susman QC (instructed by Birkett Long LLP) appeared for the claimant; Anneliese Day QC and Richard Liddell (instructed by Weightmans LLP) appeared for the defendant.Eileen O’Grady, barrister