One Hyde Park Limited v Laing O’Rourke Construction South Limited

Where a defendant does not attend trial, the claimant must ordinarily prove its case. The court may strike out the defence, but the absence of adversarial testing materially constrains the court’s ability to assess evidence. Factual witness statements are not evidence unless the witness is called or the evidence is admitted as hearsay. Expert reports require separate consideration: permission to call an expert does not ordinarily permit reliance on an unverified report where the expert is not called, unless the order clearly provides otherwise. Agreed matters may nevertheless enter the evidence through an expert who attends and verifies them. Contractual responsibility for building services depends on the proper construction and intended operation of the relevant lease provisions. A pipework system serving the development as an integrated common service is not converted into an exclusively apartment-serving installation merely because individual apartments can be isolated.

The claimant sought substantial damages from the defendant construction company for defects in chilled-water pipework, butterfly valves, soldered joints and a pantograph cradle at a luxury residential development. Shortly before trial, the defendant entered creditors’ voluntary liquidation and ceased funding its defence. Its solicitors remained on the record, but the defendant did not attend or call evidence.

The claimant applied to strike out the defence, while accepting that it should prove its case. The principal issues were the evidential consequences of the defendant’s absence, whether the claimant was responsible under the lease arrangements for maintaining the defective systems, liability for the defects, and the reasonable cost of remedial works.

1. Disposition. The defence was struck out under Civil Procedure Rules 1998, Part 39.3. The claimant nevertheless had to prove its case. Judgment was entered for OHP for £34,437,122.60 for the chilled-water pipework, £313,753 for the butterfly valves, £179,392 for the soldered joints and £215,957.44 for the pantograph cradle.
2. The court adopted the approach in Nitron Group BV (in liquidation) v Barington Alliance LLP [2020] EWHC 1244 (Comm). Without the defendant’s participation, the court could not cross-examine witnesses by reference to contemporaneous documents and could only decide whether the evidence adduced was sufficient to establish the claim. The claimant retained a duty of fair presentation, although less extensive than on a without-notice application.
3. Following AMNS Middle East FZE v LIQS PTW Ltd. [2025] EWHC 150 (Comm) and the principle stated in Williams v Hinton [2012] C.P. Rep 3 (2011), the struck-out defence and uncalled factual witness statements had no evidential status. Under CPR Part 32.5(1), a served witness statement must be supported by the witness being called, unless the court orders otherwise or the evidence is admitted as hearsay.
4. Permission under CPR Part 35.4 to call named experts did not, on the order made in this case, permit reliance on their reports without the experts being called to verify their opinions. The court distinguished Leeson v McPherson [2024] EWHC 976, where the procedural order permitted reliance on the written report independently of the later permission to call the expert. Matters agreed in a joint statement could be evidence where verified by an expert who attended trial.
5. On construction of the leases, the chilled-water pipework formed part of a single integrated system providing a common service to the development. Isolation valves did not make the pipework exclusively serving an apartment. OHP therefore bore the relevant maintenance and repair responsibility and had suffered the recoverable loss. The court would alternatively have allowed recovery for the apartment owners on the narrow ground identified in St Martin’s Property Corporation Ltd. v Sir Robert McAlpine Ltd. [1994] 1 AC 85.
6. The unchallenged factual and expert evidence established contractual breaches concerning defective insulation, butterfly valves and soldered joints, and justified the claimed remedial scope and costs. LOR’s admitted liability for the pantograph cradle supported judgment for the assessed remedial cost.