Waterman Transport Ltd v Torchwood Properties Ltd

Summary judgment may be granted where pleaded admissions and an unparticularised denial disclose no arguable defence. A professional negligence counterclaim requires particularised allegations explaining why the professional’s conduct was negligent; showing that a professional solution was unsuccessful or allegedly defective is insufficient. Expert evidence may be essential where the alleged breach concerns specialist planning or traffic matters, and failure to provide it may make the claim incapable of succeeding. Substantive non-compliance with a pre-trial questionnaire or unless order can justify automatic striking out, particularly where it affects trial length, witnesses, experts and court resources. The court may enter judgment while allowing a short opportunity to seek relief from sanctions, subject to payment on account of costs.

Waterman Transport Ltd, a professional engineering services company, claimed unpaid invoices and contingent fees from Torchwood Properties Ltd in connection with a proposed development. The defendant counterclaimed for professional negligence concerning traffic assessments, modelling and highway proposals.

The claimant applied for summary judgment on three invoices, strike-out of the counterclaim, and judgment following the defendant’s failure to comply with an unless order requiring a completed pre-trial review questionnaire. The defendant was unrepresented and did not attend the hearing. The central issues were whether the counterclaim could proceed without expert evidence and with its existing pleading, and whether the defendant’s non-compliance justified judgment and the consequences sought.

1. Counterclaim. The professional negligence counterclaim was struck out. The defendant needed planning or traffic-control expert evidence to establish the alleged breach, but had neither obtained such evidence nor complied with the directions governing expert evidence. In those circumstances the counterclaim could not practically succeed.
2. The pleading was independently inadequate. Alleging deficiencies in the highway proposals did not explain with the necessary particularity why the claimant was professionally negligent. The fact that a professional may have got something wrong does not itself establish professional negligence. Expert evidence might have supplied some necessary detail, but none had been provided.
3. Summary judgment. The sums claimed under invoices 3035731, 3056177 and 3060510 were effectively admitted and were not challenged with particularity. Once the counterclaim was struck out, any suggested set-off based on it could not amount to an arguable defence. Summary judgment was therefore entered for the unpaid sums due under those invoices.
4. Unless order. The defendant’s listing questionnaire did not substantially comply with the order requiring meaningful information about experts, witnesses and further directions. Such information was important to the pre-trial review because it affected trial length, listing and the court’s deployment of resources. The resulting non-compliance was substantive, so the automatic sanction striking out the defence had taken effect.
5. Judgment was entered for the claimant on the remainder of the claim, while the defendant was given a short opportunity to apply for relief from sanctions. Any such application was conditional on payment of substantial costs on account, and the trial was vacated. The claimant received its costs, with costs from 2 July awarded on the indemnity basis, and £45,000 ordered as an interim payment on account, following cases such as Marsabit Registered Trustees v Technotrade Pavilion Ltd [2014] eKLR.

First-instance applications before the High Court (Technology and Construction Court). Earlier case-management and unless orders were made by Edwards-Stuart J and Stuart-Smith J, as described in the judgment.