Carillion JM Ltd v Bath & North East Somerset Council & Anor

Preliminary issues are generally unsuitable for early determination where they depend on substantial factual disputes, oral evidence, or evidence likely to overlap with the main trial. The court should also consider whether deciding them would materially affect the litigation. In a substantial construction dispute, repudiation and affirmation issues will commonly require evidence from the parties involved and should not be determined artificially on assumed or generalised allegations. Permission to call a second expert should be refused where the existing expert has already considered the relevant subject, the second report would create duplication or contradiction, and the additional evidence would be disproportionate or contrary to the overriding objective.

At a case management conference, Carillion JM Ltd claimed sums allegedly due under a contract for restoration and refurbishment works at Bath Spa Buildings. Bath and North East Somerset Council defended the claim and counterclaimed substantial damages arising principally from delay and remedial works. The Council also brought third-party proceedings against Nicholas Grimshaw & Partners Ltd concerning alleged design and specification defects.

The claimant proposed preliminary issues concerning affirmation, repudiation and the validity of the contract termination. The Council sought permission to call a second architectural expert, limited principally to design and specification. The court determined whether those case-management applications should be granted before the full trial.

1. Preliminary issues. The proposed issues were refused. Preliminary issues should generally be questions of law determined against agreed or assumed facts and should be decisive, or potentially decisive, of the litigation. In construction disputes the court may adopt a more flexible approach, but care is required because a preliminary issue can become a treacherous short cut: [1980] AC 1.
2. Contested repudiation and affirmation issues were unsuitable for separate early determination. Their resolution depended on the factual context, the parties’ understanding of critical events and documents, and oral evidence from those involved. It would be artificial and potentially unjust to assume the truth of generalised pleaded breaches without hearing that evidence. The court should be slow to find affirmation without clear evidence that the injured party chose to continue the contract, applying the approach in Yukong Line v Rendsburg Investment Corporation of Liberia [1996] 2 Lloyds Rep 694.
3. The court also had to consider the likely practical value of the proposed issues. Even a decision favourable to the claimant might not dispose of, or materially affect, the Council’s alternative contractual claims. The proposed issues were therefore inconsistent with the proper exercise of case-management powers and the requirements of the Civil Procedure Rules: McLoughlin v Jones [2002] 2 WLR 1279.
4. Expert evidence. Permission to call a second architectural expert was refused. The existing expert had already considered design and specification, and would inevitably be cross-examined on those matters. A second expert would duplicate evidence, risk confusion and contradiction, and add substantial cost without removing the underlying evidential difficulty. One expert could address both the primary workmanship case and any subsidiary design case.

The proposed preliminary issues and the application to call a second architect expert were refused.