Jones v Onyut

Where a defence has been struck out and judgment entered on liability, the defendant may still contest quantum, but must identify the disputed items clearly. In a building dispute, a counter-schedule is essential to show what work is denied, defective or overvalued. An expert report may be of limited assistance without that structured response. An appellate court will not interfere with a factual finding supported by evidence, particularly where an alleged inconsistency was not put to the witness. A late request to adjourn for expert cross-examination is a case-management matter. Refusal will not show an error of discretion where the application could have been made earlier and the delay has impaired an orderly and proportionate trial.

The claimant, a builder, claimed reasonable remuneration for building work and damages for lost profit after the defendant terminated the contract before completion. The Defence and Counterclaim were struck out for failure to comply with orders for further information. Judgment was entered on liability, with quantum to be assessed at a disposal hearing before District Judge Lightman.

The defendant appealed on three permitted grounds: whether the judge was entitled to rely on a DVD recording; whether he properly evaluated the competing expert evidence and the incomplete state of the works; and whether he should have adjourned the hearing to allow the experts to give live evidence and be cross-examined.

Lloyd LJ gave the leading judgment and Lewison LJ agreed. The appeal was dismissed.

1. Following the strike-out of the Defence and Counterclaim, the defendant could not dispute the contract, the requested additional works or the breach which prevented completion. She remained entitled to challenge quantum, including the work done, the quality of that work, reasonable remuneration and any loss of profit.
2. In a building dispute, a counter-schedule is essential. It enables the court and the parties to identify which items of work are disputed, alleged to be defective or said to be overvalued. The absence of such a schedule made it difficult to determine what use could be made of the defendant’s expert report.
3. The district judge was entitled to find that the DVD showed the state of the property before the replacement builder had undertaken further work. That finding was supported by the claimant’s evidence and the judge’s viewing of the DVD. Points about what the DVD showed had not been put to the claimant in cross-examination and could not properly be relied on to demonstrate that the finding lacked an evidential basis.
4. The fact that later contractors performed more work did not undermine the claim. The relevant questions were the reasonable remuneration for the work actually done and a reasonable assessment of the profit lost on work which the claimant was prevented from completing. Any allegation that the completed work was defective required evidence and proper particularisation in the counter-schedule.
5. The refusal to adjourn for expert cross-examination was a case-management decision. An earlier application might have been viewed differently, but the application was made effectively at the hearing, without a counter-schedule and after the matter had long been listed. The district judge had not misdirected himself in refusing it.

The court confined the appeal to the three grounds for which permission had been granted, disregarded additional grounds outside that permission and noted that an order refusing permission to appeal from a district judge could not itself be appealed to the Court of Appeal.

1. Court of Appeal (Civil Division) — The appeal was dismissed: [2012] EWCA Civ 1816.
2. Central London County Court — District Judge Jackson struck out the Defence and Counterclaim on 31 May 2011 and entered judgment for the claimant on liability, with the amount to be assessed. District Judge Lightman subsequently conducted the disposal hearing on 9 August 2011.