[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brown (t/a All Kent & Sussex Tarmacadam) v W J Burke Ltd [2001] EWCA Civ 429 (2 March 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/429.html Cite as: [2001] EWCA Civ 429

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR AN EXTENSION OF TIME
WITH APPEAL TO FOLLOW IF GRANTED

		Royal Courts of Justice Strand London WC2 Friday, 2nd March 2001

1. SIR MARTIN NOURSE: This is an application by the claimant in the action for an extension of time, with the appeal to follow if the extension is granted.
2. Shortly stated, the facts underlying the dispute are the following. The claimant tarmacadammed a go-kart track at Pontins Cambersands as sub-contractor to the defendant, pursuant to an oral contract made on or about 10th August 1997 and by reference to a specification provided by Pontins to the defendant and claimed by the defendant to have been supplied to the claimant at the time of the contract. The work was carried out. The defendant subsequently refused to pay £5,000 of the price. There were three grounds for that refusal: first, an alleged breach of express terms set out in the specification; second, an alleged breach of an express term in the oral contract that the claimant would be responsible for obtaining correct levels and falls for carrying out the tarmacadam work; and, third, an alleged breach of the implied term that the work would be of satisfactory quality and fit for the purpose.
3. In August 1998 the claimant commenced proceedings in the county court claiming £5,000 plus interest. In addition to denying liability for the reasons stated, the defendant counterclaimed for damages in respect of the loss of profit on further contracts from Pontins which it claimed it had lost because of the claimant's failure to do the job at Cambersands as it ought to have been done.
4. The action came on for trial before Her Honour Judge Bernstein at Liverpool in January 2000. We understand that the trial lasted for 4 days. By her order made on 2nd February 2000 the judge dismissed the claim and entered judgment on the counterclaim for damages to be assessed. She ordered the claimant to pay the defendant's costs and refused him permission to appeal. Although permission was subsequently granted by this court, the appeal was not entered within the time stipulated and an extension of time is needed.
5. In this court we have been faced with three difficulties. First, we only have an incomplete transcript of the judge's judgment. That difficulty has been satisfactorily overcome by a clear and careful note of the whole of the judgment which was taken by Mr Watson, counsel for the claimant, and on which, if an appeal went ahead, the court could satisfactorily act. The second and much more significant difficulty is that there appears to be a conflict, or at any rate a potential conflict, in the findings of the learned judge. On the one hand, she made a finding that the claimant had failed to do what he had undertaken to do. Later in her judgment, however, she said that although there were deficiencies in the work, they were not, on the evidence, sufficiently substantial to make her arrive at the conclusion that the track was not fit for the purpose of being used as a go-kart track.
6. As my Lord, Lord Justice Brooke, said when granting the claimant permission to appeal on 14th July 2000:

"On counsel's note of the judgment, one can only conclude that the judge preferred Mr Smith's evidence to Mr O'Donnell's evidence on the question of whether the finished track was fit for the purpose. Mr Watson submits that in these circumstances it is going to be difficult for a judge on the assessment of damages to know what is the breach for which the defendants are claiming from the claimants a very large sum for loss of business from Pontins, in circumstances in which, although the claimants did not in some unspecified way do what they had agreed to do, nevertheless the end product was fit for the purpose of use as a go-kart track. The difficulty that the judge's judgment throws up is that it is likely to cause perplexity for the judge conducting the assessment, and it may, for all I know, cause difficulties in relation to causation of loss."

7. I respectfully agree with those observations.
8. The third difficulty is one which has supervened at the eleventh hour. It came to the notice of the claimant's solicitors only yesterday that on 7th February 2001 an order was made for the compulsory winding up of the defendant on the petition of the Inland Revenue Commissioners. The result of that, as Mr Watson has immediately accepted, is that the proceedings in this court have been stayed by virtue of Section 130 (2) of the Insolvency Act 1986. That means that we cannot go ahead with the hearing today.
9. Nevertheless, we think it may be helpful to deliver judgments at this stage, so that the liquidator can have something to refer to in order to understand what the case is all about. As to the merits of the matter, I am of the provisional view, for reasons into which I need not go, that an extension of time would be granted on the grounds set out in the notice of application. What would happen on the hearing of the appeal is more problematical, as my Lord pointed out in his judgment on 14th July. However, I agree with him that it cannot be said that there is no realistic prospect of success on the basis of the arguments which Mr Watson would wish to raise. For my part, I think that a serious difficulty is presented by the apparent conflict in the learned judge's findings.
10. A further difficulty is that if the appeal were to succeed it seems likely that the claimant's only remedy would be a re-trial. That would mean further delay and expense, which, subject to the counterclaim (a matter of some difficulty to establish), would be over a very small sum of money.
11. For these reasons it seems clear, as has been said before, that this is a matter which ought to be capable of being disposed of by agreement, especially now that there is a liquidator in the saddle on the side of the defendant. One possibility would be for the matter to be disposed of by each side relinquishing any further claim or right of enforcement against the other.
12. However, that is not something on which I can express any further view. It is something which will have to be carefully considered by the liquidator.
13. In the circumstances, it seems that we have no alternative but to recognise the stay and to make a declaration to that effect.
14. LORD JUSTICE BROOKE: I agree. The court declares that pursuant to the effect of Section 130 (2) of the Insolvency Act 1986 these proceedings are stayed. There is liberty to either party to apply to the court to remove the stay if so advised.