McGlinn v Waltham Contractors Ltd & Others

 

McGlinn issued proceedings as a result of alleged defective  work in the building work carried out to his property.  Before issuing the proceedings, McGlinn went through the  steps prescribed by the Pre-Action Protocol for  Construction and Engineering Disputes. This led to a  mediation which was unsuccessful. However, the claims  made by McGlinn in the TCC proceedings, did not include  claims in respect of over payment and loss and expense  paid to Waltham. This was even though those claims had  been made at the outset of the Pre-Action Protocol  procedure.

At the first case management conference, one of the  defendants sought an interim payment of £20,000 in  respect of costs which they claimed were thrown away at  the Pre-Action Protocol stage as a result of the need to  consider and respond to these claims which had been  abandoned by McGlinn.

As HHJ Coulson QC noted, there is no direct authority on  the question of the general recoverability of costs incurred  in compliance with the Pre-Action Protocols. Had the  claims been abandoned after court proceedings had been  issued, then the defendants would have been entitled to  their costs.

However, HHJ Coulson QC said that “save in exceptional  cases”, costs incurred by a defendant at the Pre-Action  Protocol stage when dealing with and responding to issues  which are subsequently dropped when proceedings are  commenced, cannot be said to be costs incidental to those  proceedings. As a matter of general principle, claims  made at the time of the Protocol Procedure which were  then deliberately excluded from the court proceedings  bear no real relation to the subject of the litigation.  Here, the proceedings had been narrowed so that there  was only one real subject – namely the defective work  alleged by McGlinn.

The Judge also felt that it would be contrary to the whole  purpose of the Pre-Action Protocols, which are an integral  part of the CPR, if claiming parties were routinely  penalised if they decided not to pursue claims in court  which they had included in their Protocol claim letters.  The whole purpose of the Protocol procedure is to narrow  issues and allow a prospective defendant where possible  to demonstrate to a prospective claimant that a particular  claim is doomed to failure. This is what had happened  here. Thus, unless there were exceptional circumstances  which gave rise to unreasonable conduct, the costs  incurred by a defendant at the Pre-Action Protocol stage  in successfully persuading a claimant to abandon a claim,  were not therefore recoverable.

 

 

This article was originally written and published on the internet by Fenwick Elliot in Aug 2005.

 

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.

 

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