A1/2001/1586

Neutral Citation Number: [2001] EWCA Civ 1731
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Hedley)
	Royal Courts of Justice
	Strand
	London WC2

	Tuesday, 6th November 2001
B e f o r e :

LORD JUSTICE LONGMORE

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DAVID JOHN COOKE
(t/a D J Cooke & Co)	Claimant/Respondent

-v-

DELROSE HAYNES-McMANUS	Defendant/Applicant

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Mr M Wood (instructed by Messrs Hail Dickinson, London EC3) appeared on behalf of the Applicant Defendant.

The Respondent Claimant did not appear and was not represented.

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J U D G M E N T
1.	LORD JUSTICE LONGMORE: There is before the court an application for permission to appeal and for an extension of time for that appeal to be served. The extension of time is not insignificant, because time for appeal expired within 14 days of Judge Hedley's judgment (that would have been 5th May 2001) but in fact was not filed, I am told by counsel, until 22nd July 2001. I slightly wonder if that is entirely correct because, on the appellant's notice that I have, although there is a receipt stamp of 25th July, there is also a pencil mark saying “Filed 12th July 2001”. But on any view, an extension of over two months is required. 
2.	The reason why I devote a little time to that is because, this being a building dispute, the parties had claims and cross-claims. The claimant was Mr Cooke, the architect/surveyor, suing for his fees. The defendant to that claim was Mrs McManus, who denied liability for the fees and claimed that, as a result of breaches of contract on her architect's part, she was entitled to damages in a sum exceeding his fees. 
3.	The judge decided that Mr Cooke should be able to recover some part of his fees. He took into account for that purpose such of the counterclaim by way of damages as seemed right to him. The result was that Mr Cooke was awarded a comparatively small sum. Mr Cooke has already sought permission to appeal to this court, saying that he ought to have been awarded a greater sum. That appeal was launched in time and was disposed of on a renewed application by this court on 24th July 2001, Mr Cooke appearing in person on that occasion. 
4.	It would be very unfair, in my judgment, if a litigant who sought to appeal could appeal out of time after the court has dealt with an application from another applicant that is made in time, because obviously the court ought to consider the merits of both applications together and it would be stealing a march, on the part of the litigant or applicant who sought to appeal out of time, if her application had to be dealt with separately at a time after the first applicant's application had been disposed off. I therefore am minded to say that the application should be dismissed for the sole reason that it is made out of time. 
5.	However, Mr Wood, who has been instructed at very short notice and has done his very best for his client in the situation, has explained to me that Mrs McManus, unlike Mr Cooke, was a litigant in person at trial and that after the trial she became ill and it therefore took time for her to prepare her notice of appeal. One can understand that it took some time, because her notice of appeal, after making two general points, makes 18 separate points as reasons why the judge was wrong. Mr Wood, on this application, has concentrated his submissions on what are obviously the two strongest points. I will consider those points in a little detail because, if there is anything in them, then perhaps an extension of time should be granted, despite the possible unfairness to Mr Cooke. 
6.	I will preface my consideration of those points by saying that I have considered all 18 of Mrs McManus's points of complaint against the judgment. I am satisfied that, except in respect of the two that Mr Wood has sought to argue, there is nothing in them whatever because they are mainly complaints about findings of fact made by the judge that could never have any chance of being successfully reversed by the Court of Appeal. 
7.	The two points, that Mr Wood has submitted in support of his argument that the judge was wrong to have awarded a small sum on the counterclaim instead of a larger one, depend on the conduct of Mr Cooke. The judge found that there were two breaches of contract by Mr Cooke. First, he found that he did not, as he ought to have done, issue a certificate of non-completion at the time when the contract works should have been completed. That certificate of non-completion would be the trigger for a claim for liquidated and ascertained damages (or LADs, as they are called in this area of the law), and that would have resulted in a claim for those liquidated damages for a delay of 12 weeks. The second point depends on the learned judge's decision that Mr Cooke was again in breach of contract in failing to notify defects of which he was, or ought to have been, aware at the latest by the end of the defects liability period. 
8.	As far as the first point is concerned, the judge made his finding that Mr Cooke was in breach and explained why Mr Cooke did not issue a certificate of non-completion in these terms: 
“... he regarded it as in the interests of his client not to do so as, since as it would give rise to a right to LAD, it would provoke an application for extension of time which would have to have been granted with liability to increased costs including Preliminaries (in excess of LAD) at a time when funding was precarious.”
9.	Mr Wood was unable to tell me what the preliminaries were, but the gist of the explanation is that it would have been a disadvantage, in Mr Cooke's view, to his client to have issued that certificate because it would itself have triggered an application for an extension of time, together with an application for increased costs, and in Mr Cooke's view that would have to have been granted.
10.	The question, therefore, for the judge was what loss occurred to Mrs McManus as a result of his finding of the breach on the part of Mr Cooke for failure to issue a certificate of non-completion. He deals with that in paragraph 32 of his judgment and says this:
“In the circumstances it seems to me difficult to envisage any further loss or damages for delay other than LAD as that is precisely the contingency that they are designed to address. On the face of it, however, there is an entitlement to the contractual LAD for the period of the delay unless an extension of time had been sought and granted. I accept that in due course such an application was made and granted orally but without any extra charges sought to be made on that account by the contractors. In order to determine this, I think it necessary to enquire into what would have happened had a Certificate [of non-completion] been issued. It is at this point that what I regard as Mr Cooke's ex post facto justifications may have merit for I accept that what he says would have happened, is that which most probably would have happened. On that basis, given that [Mrs McManus] must be put into the position that she would have been in had Mr Cooke complied with his duty, Mrs McManus fails to persuade me that any loss has actually occurred as a result of that breach of duty. In the event she might indeed have been saved money as a result of it.”
11.	On the face of it, that is a finding of fact by the judge that Mrs McManus did not suffer any loss arising from the breach of contract on the part of Mr Cooke. Mr Wood submits that that cannot in fact be a right conclusion, because an extension of time was asked for and that extension of time was only for six weeks, when the liquidated and ascertained damages were for a period of 12 weeks. But the fact is that the judge made the finding of fact, and the question for me is whether there is any real prospect that that finding of fact would be reversed by this court if the application for permission to appeal were allowed. 
12.	In my judgment, there is no prospect of that finding of fact being reversed. The answer to Mr Wood's submission is that the fact that an extension of time was informally asked for and informally granted for a period of six weeks does not mean, on any view, that, if the formalities of the position had been gone through and a certification of non-completion had been issued and the claim for liquidated and ascertained damages for 12 weeks had been made, an extension of time would only have been asked for for six weeks and no claim for extra costs would have been made. The judge clearly thought the contrary, and that is the reality of the matter. There is therefore nothing arguable in that submission of Mr Wood. 
13.	The second matter is this. When the judge came to assess the liability for the second breach of contract on the part of Mr Cooke which he identified, namely in respect of defects which were not notified but which should have been, the learned judge awarded £5,000 in respect of that. He said in terms that he was going to take a broad brush to that matter, and at paragraph 37 of his judgment he identified three general areas for consideration, namely: (i) overpricing the final accounts; (ii) defective design; and (iii) unreported defects. This argument, of course, only applies to the third of those. The judge continued:
“These matters raise a host of issues of detail as can be seen from the most superficial of glances at the Schedules in this case. I think it right that I should record my general approach to these matters. It will be seen that the vast majority of items in the Schedules viewed on their own involve very modest sums. After the first day this case was costing (i.e. what the loser would have to pay) £420 per hour. I made it very clear that I would under no circumstances involve myself in a detailed consideration of the vast majority of items as being an exercise wholly disproportionate on any sensible basis; no-one tried to encourage me to see it differently. In the end therefore I selected a number of the more valuable and contentious items for determination; beyond that the judge's brush will be found to be broad indeed.”
14.	I, for my part, would strongly endorse the approach of the learned judge in a dispute of this kind. 
15.	He then dealt with roof tiles and the discrepancy between drawings and the schedule of work. He dealt with vanity units. He dealt with design faults in relation to pre-cast concrete cills. He dealt with drainage. He dealt with the final accounts of the contractors being overpriced. Lastly, he came, in paragraph 43, to deal with the matters which should have been picked up on the final inspection but were not. He said: 
“They do not include any high value items ... but they do include a number of smaller items. Some were visible when I inspected the premises and all will have caused loss to Mrs McManus either by requiring repair or replacement or because they represent a diminution in value. Moreover, I accept that there will have been some minor inconvenience associated with them. To value that overall at £5,000 is, given the small individual items, if anything to be generous to Mrs McManus but, as I have said, I intend to approach that with the broadest of brushes.”
16.	What is now said is that, if one looks at one of the particular schedules to which the judge referred, namely the summary of claim by categorisation where categories are not agreed, one sees down the left-hand side various categories of claim and one sees the expert surveyor for Mrs McManus saying that those amounted to £23,978 and the expert for Mr Cooke, Mr Pickavance, saying that they were to be valued at £11,340. It is therefore submitted that the judge should have started from a figure of £11,340 as a minimum and should not have found a figure of £5,000. 
17.	This, with respect to Mr Wood, is in my judgment a hopeless approach. It is quite obvious from just looking at this document that there are some items in the document which go outside the area of liability for defects which should have been notified and were not. The design defect is the most striking one. This schedule does not, in my judgment, purport to be the first and last word about the matters which the judge deals with in paragraph 43. The judge clearly did not think so. Mrs McManus did not complain to him at the time that he had misunderstood the position, and I am confident from the immense care which Judge Hedley took in this judgment that he cannot in fact have misunderstood the position. 
18.	As revealed on the application for permission to appeal by Mr Cooke which was dismissed by this court, Mrs McManus in fact has £9,000 by way of retention monies as against the contractors, a sum which is not so very different in fact from the lower of the figures to which Mr Wood drew my attention of £11,340. Be that as it may, it does not seem to me that there is the remotest prospect of persuading the Court of Appeal that the judge was wrong on this aspect of the matter. 
19.	Having looked at those matters, and at the other 16 matters which Mrs McManus raises in her notice of appeal, I am quite satisfied that there is nothing in her application which would indicate that there was any real prospect of success in an appeal. Therefore, in the light of the fact that she is well out of time and that Mr Cooke's application has already been considered by this court, I am going to refuse the application to extend the time for appealing, and that will be the order of the court. 
Order: application for extension of time for appealing dismissed.