The client instructed Samuel Okoronkwo Jr. in relation to a dispute arising from a contract for the design, manufacture and installation of double-glazed windows, structural glazing and external cladding at a residential property.
The client was the defendant to a claim brought by the claimant alleging breach of contract, misrepresentation and failure to provide goods and services in accordance with the agreed specifications. The claimant sought damages in the region of £157,464.43 arising from allegations that the client failed to manufacture and install the agreed works within the required timeframe, that representations made regarding the manufacture and installation dates were false and negligent, and that the products supplied were defective and not of satisfactory quality.
The contract between the parties was entered into on 7 August 2018. The claimant issued proceedings through the County Court Money Claims Centre and a hearing was listed for 8 April. The client’s position was that the alleged delays and failure to complete the installation were not caused by any breach on its part, but were due to significant issues with the construction site, including delays in completion of the building structure, incorrect window openings and the failure of the site to be ready to receive the works.
The client explained that the property was a major construction project and that, although materials had been manufactured and delivered, installation could not be completed because the structural works were incomplete. The client maintained that the main glass frames and structural elements required before installation had not been completed and that the site conditions prevented the works from progressing.
The client’s Defence and Counterclaim had already been filed. The client’s case was that it had attended site, completed significant elements of the works and was prevented from completing the remaining installation due to failures in project management, delays by other contractors and issues with approvals of drawings. The client also disputed allegations that it had repudiated the contract and maintained that it had not been given a proper opportunity to complete the works before being removed from the project.
Counsel was instructed to advise on the merits of defending the claim, the potential amendment of the Defence and the approach to be taken at the upcoming Case Management and Costs Conference hearing.
The principal issue was whether the claimant could establish that the client was in breach of contract by failing to manufacture and install the agreed works within the required timeframe.
Counsel considered the competing positions of the parties, namely the claimant’s allegation that the client failed to complete the works and supplied defective items, against the client’s position that delays were caused by the condition of the construction site, incomplete structural works and failures by those responsible for managing the project.
A further issue concerned responsibility for delays. Counsel considered the evidence relating to the state of the site, including whether the building structure, frames and openings were sufficiently prepared to allow installation. The client maintained that the site was not ready and that the lack of completed structural works prevented the installation from being carried out.
Counsel also considered the claimant’s allegations regarding defective workmanship. The client accepted that there had been issues with a small number of windows, including problems with hinges, but maintained that these issues were minor, that attempts had been made to rectify them and that they did not justify termination of the contract.
Counsel considered the adequacy of the claimant’s pleaded case, including concerns that the Particulars of Claim lacked clarity regarding dates and the calculation of losses. Counsel noted that there appeared to be limited detail regarding how the claimant’s alleged losses had been calculated and whether expert evidence had been obtained to support the allegations of defective works.
Counsel further considered the procedural position, including the upcoming case management hearing, the possibility of amending the Defence, the need for expert evidence and whether mediation would be an appropriate method of resolving the dispute.
Counsel advised that the client had arguable grounds to defend the claim, particularly in relation to causation and responsibility for the delays. Counsel advised that the Defence should be strengthened by clearly setting out that the failure to complete the installation was caused by the claimant’s own project management failures, incomplete construction works and the absence of a suitable site for installation.
Counsel advised that the Defence should be amended to make the client’s position clearer and to place greater emphasis on the claimant’s responsibility for the delays. Counsel considered that the court should be made aware at an early stage that the client’s position was that it had been prevented from completing the works rather than having failed to perform its contractual obligations.
Counsel advised that evidence should be gathered to support the Defence, including photographs of the site condition, records of communications, meeting notes, approval schedules and evidence demonstrating the status of the construction works at the relevant times. Counsel advised that such evidence would assist in establishing that the site was not ready and that the client was unable to complete the installation through no fault of its own.
Counsel further advised that the issue of expert evidence should be considered, particularly given the technical nature of the dispute concerning glazing, structural works and alleged defects. Counsel advised that the court may consider whether a joint expert would be appropriate in order to determine the technical issues in dispute.
Counsel also advised that mediation should be considered as a potential route to resolving the dispute. The client confirmed that previous mediation had been successful and wished to explore settlement before further litigation steps were taken. Counsel advised that a carefully prepared position statement would be important should mediation proceed.
Counsel agreed to assist the client at the forthcoming Case Management and Costs Conference hearing and requested further documentation to allow preparation. Counsel’s clerk was to revert regarding the papers required and arrangements for representation at the hearing.
Counsel advised that the immediate next steps were to review the Defence, consider amendments, prepare for the case management hearing and continue exploring whether mediation could provide a commercially sensible resolution to the dispute.
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