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Archive for August, 2018

Prepare or Fail

With thanks to Wilberforce Chambers, which brought this case to our attention (Jonathan Seitler QC and Emer Murphy acting for the successful party), Clutterbuck & Paton v Cleghorn [2018] EWHC 2125 (Ch) is a stark reminder to parties that failure to fully prepare one’s case opens the door to failure.

The case concerned the redevelopment of a dilapidated residential property being part of a claim revolving around a property joint venture agreement.  The claimant alleged, inter alia, that wrongful delay, caused by another partner to the scheme (who had since died), led to the redeveloped property coming to the market later than originally envisaged.  It was further alleged that the delay and a lack of quality in workmanship had led to the property selling for a sum less than that at which it would have sold if the property had come to the market at an earlier date and in the physical state required by the agreement.

The judge said “Where a claimant’s case depends on an allegedly actionable wrong that is alleged to have caused a loss the nexus between alleged cause and alleged effect must be pleaded in an intelligible form.  Where loss is alleged to have been caused by allegedly actionable delay, it will usually be necessary for a claimant to plead the period of delay relied on, plead why it is alleged to be actionable as against the defendant, what the result of the delay was and what loss is alleged to have been caused thereby.”  However, the necessary evidence to support the claim, the quality of work and the assertion of loss had not been called.  The claimant had sought, at an earlier directions hearing, that the trial be split between liability and quantum, an application which had been refused.  No appeal had been lodged and the trial judge would not hear of the matter being raised again - in any event: “Making such an Order would not address the absence of expert evidence relating to the quality of the work carried out to the Property, which is relevant to liability in respect of the Defects Claim.”

The claimant finally attempted to rely on general comments made about quality of work and finishes and about valuation in estate agents’ reports before the court.   The judge held the key point was that there was no evidence directed at valuation or quality of work and he could not “simply pull a figure from the air as to what price might have been achieved”.  Hence the claim failed.

The moral of this story is that a party must fully prepare its case before trial or risk failure.