Cockell (t/a Cockell Building Services) v Holton (No 2)

Cockell (t/a Cockell Building Services) v Holton (No 2)

The Defendant’s breach of the unless order was serious and significant, not merely technical or trivial, as the re-pleaded Counterclaim was late and lacked the required particularity. No good reason was provided for the delay, and the persistent non-compliance justified refusal of relief from sanctions. However, the Defendant is permitted to rely on allegations of defective work as a defence to the Claimant’s claim for underpayment, but not to pursue a counterclaim for damages or new claims introduced late.

Parties
Claimant: Simon Cockell (t/a Cockell Building Services); Defendant: Martin Holton
Jurisdiction
England and Wales
Judgment Date
22 April 2015
Procedural Posture
Civil (construction Dispute) / Application for Relief From Sanctions Following Failure to Comply With Unless Order Regarding Re Pleading of Counterclaim
Outcome
Defendant’s application for relief from sanctions refused. Defendant permitted to amend Defence to plead defects by way of abatement only, not to pursue counterclaim for damages or new claims.
Legal Topics
Relief From Sanctions, Pleading Requirements, Counterclaims, Particularisation of Pleadings, Case Management, Building Contracts
Civil Procedure Construction Law Relief From Sanctions Pleading Requirements Counterclaims Particularisation of Pleadings Case Management Building Contracts

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Parties

Simon Cockell (t/a Cockell Building Services)

Claimant

Martin Holton

Defendant

Procedural Posture

Civil (construction Dispute) / Application for Relief From Sanctions Following Failure to Comply With Unless Order Regarding Re Pleading of Counterclaim

Legal Issues

  1. 1 Whether the Defendant should be granted relief from sanctions for failure to comply with an unless order to re-plead the counterclaim with sufficient particularity and file it in time
  2. 2 Whether the Defendant should be permitted to amend the Defence and Counterclaim
  3. 3 Whether the Defendant can rely on allegations of defective work as a defence to the Claimant’s claim for underpayment

Ratio Decidendi

The Defendant’s breach of the unless order was serious and significant, not merely technical or trivial, as the re-pleaded Counterclaim was late and lacked the required particularity. No good reason was provided for the delay, and the persistent non-compliance justified refusal of relief from sanctions. However, the Defendant is permitted to rely on allegations of defective work as a defence to the Claimant’s claim for underpayment, but not to pursue a counterclaim for damages or new claims introduced late.

Court Disposition

Defendant’s application for relief from sanctions refused. Defendant permitted to amend Defence to plead defects by way of abatement only, not to pursue counterclaim for damages or new claims.

Orders

  • Paragraphs 93 and 94 and the first 10 words of paragraph 95 and paragraph 96 of the re-pleaded Counterclaim as served on 20 March 2015 are struck out.
  • Defendant may amend Defence to plead, by way of abatement, the material in the new draft Counterclaim (excluding electrical work and interior work).