J & B Hopkins Limited v A & V Building Solution Limited

Permission to appeal should not be granted merely because the result is unusual where the judge has applied established principles to exceptional facts. A security for costs application should be refused where the order would stifle a genuine claim. Case management directions should remain proportionate to the issues, the evidence already available and the need for a fair and efficient trial. Costs should reflect the parties’ relative successes and failures, including costs thrown away by deficient pleadings and subsequent re-pleading.

The judgment concerned two related Technology and Construction Court actions between J & B Hopkins Limited and A & V Building Solution Limited. The court had previously given judgments on 15 February, 16 June and 6 October 2023, including decisions concerning a stay of execution, a stay of the later action and security for costs.

The present judgment determined J & B Hopkins Limited’s application for permission to appeal the 6 October judgment, gave directions in A & V’s action, and decided costs issues. The central questions were whether the earlier decisions raised any new or erroneous principle warranting permission to appeal, how the action should be prepared for trial, and how costs should be allocated.

1. Permission to appeal. Permission was refused. The court had applied established principles concerning stays and security for costs to unusual facts. The case did not raise a new legal principle, and the applicant had not identified an arguable error in the application of existing authority. The security for costs application was plainly untenable because security would stifle the claim.
2. Stays and financial circumstances. The court maintained its refusal to stay A & V’s action. A & V’s financial difficulties had been materially aggravated by J & B Hopkins’s conduct and the fact that friends or family might support litigation costs did not mean that funds would be available to pay money over to the opposing party while bringing the claim to an end.
3. Directions. The case was directed to proceed to trial on all issues, including loss of profits. Re-amended pleadings were ordered, followed by Model B disclosure in specified categories. Parties were permitted to identify documents by reference to adjudication exhibits. Witness statements were to comply, so far as practicable, with PD 57AC, including the requirements concerning documents used to refresh memory and the exclusion of commentary. Expert evidence on delay and measured works, variations and contra-charges was not presently permitted, although those issues could be revisited at the CCMC. Forensic accounting evidence on loss of profits was justified.
4. Expedition and costs. A five-day trial was listed for May 2024. Although this was faster than usual, the history of the proceedings made earlier finality appropriate. A & V was ordered to pay the costs thrown away by J & B Hopkins’s consideration of re-pleaded cases. Subject to that order, costs were costs in the case, reflecting the parties’ mixed success and failure on the various applications.

• High Court (Technology and Construction Court): earlier judgments were given on 15 February 2023 ([2023] EWHC 301 (TCC)), 16 June 2023 ( [2023] EWHC 1483 (TCC)) and 6 October 2023 ( [2023] EWHC 2475 (TCC)). In the present judgment, permission to appeal the 6 October judgment was refused.