#15432 - Skeleton Argument Specific Disclosure - BPC Civil Advocacy

IN THE COUNTY COURT AT GUILDFORD

Claim No. AYJ7216

BETWEEN:

MARK PEMBERTON

Claimant

-and-

GEOFF SHORT (trading as QUALITY WINDOWS)

Defendant

_________________________________________________________________________

SKELETON ARGUMENT ON BEHALF OF THE CLAIMANT

RE: SPECIFIC DISCLOSURE

_________________________________________________________________________

Introductory Matters

1. This is an application brought by the Claimant Mr. Mark Pemberton (“C”) against the Defendant, Mr. Geoff Short (“D”) for specific disclosure pursuant to CPR r.31.12. C contends that D’s purported compliance with his disclosure duties has been unacceptably inadequate (PD31, para 5.1).

Evidence in support

2. C will rely on the following in making this application:

   1. Particulars of Claim (“PoC”)

   2. Application Notice, dated 6 February 2017

   3. Witness Statement of Emma Hart (“WS/EH”) and Exhibit EH1

   4. Witness Statement of Geoff Short (“WS/GS”) and Exhibit GS 3

History giving rise to the claim

3. D contracted to design, manufacture and install 20 Georgian-style window and door units at C’s home ‘Prandergast’, Windmill Lane, Ockhurst, Surrey (“the Property”) on 17 April 2016. The oral agreement incorporated terms from previous discussions on 2 March, 7 April and 10 April 2016. The price agreed was 80,000 plus VAT to be paid in half up front and half upon completion.

4. D worked on the Property from 6 to 10 July 2016 when C was absent. C returned on 10 July 2016 and, as a result of the quality of work found there, refused the payment due upon completion.

Procedural History

5. The following items are in dispute in terms of liability (PoC):

   1. Whether D agreed to renovate the Property with windows and doors of ‘equal sightlines’ through each of the front and rear elevations;

   2. Whether C expressly consented to the installation of doors of substandard height;

   3. Whether D used the contracted mahogany hardwood in the manufacture of the units;

   4. Whether D used reasonably care and skill.

6. The Court approved the parties’ agreement as to standard disclosure on 6 January 2017under CPR r.31.6. C has fully complied. D purported to make disclosure on 23 January 2017 (EH1 p.11) following the filing of a disclosure report under r.31.5 (EH1 p.12). C’s solicitors made contact with D on 26 January 2017 to urge fuller disclosure (EH1 p.21) which was refused 8 days later (EH1 p.23), giving rise to the present application.

Procedure

7. This application is made in accordance with Pt 23. It was made as soon as it became apparent that it was necessary or desirable to make the application (PD23, para 2.7); (Application Notice; EH1, pp. 21-24).

8. The application is compliant with PD31A, paras 5.1-5.5. In particular, the Application Notice specifies the order which C is asking the Court to make and is supported by evidence (PD31A, para 5.2; CPR r.31.12(2)(a)). The grounds on which the order is sought are set out in that evidence (PD31A, para 5.3).

Grounds of the Application

9. C submits that the following categories of documents satisfy the criteria for standard disclosure under r.31.6(b) and should have been disclosed by D as part of ordinary compliance:

   1. All working drawings, plans, calculations and other similar documents;

   2. Delivery note(s) or invoice(s) for the wood ordered from the supplier Monarch Wood Suppliers Ltd;

   3. Documents relating to a previous dispute concerning renovation works at ‘Beaumarsh House’, Wiltshire (“Beaumarsh”).

10. In determining an application for specific disclosure, the Court will have regard to all the circumstances of the case (PD31A, para 5.4) and, in particular, the overriding objective in Pt 1. The Court must be satisfied of the relevance of the documents sought and that they are, or have been, under D’s control (WB Commentary, para 31.12.2).

11. The Court will more readily make an order for specific disclosure where the document is central to the determination of a factual dispute (Chantrey Vellacott v Convergence Group plc [2007] EWHC 1774 Feb 6, 2006).

(a) Working Drawings etc

12. D’s possession of a ‘log book’ containing technical drawings is not in dispute (WS/GS, para 3).

13. The given excuse for non-disclosure is that the relevant documents are indistinguishable from the others amongst D’s “loose” collection (EH1 p.23). This is unacceptable to C, who submits that D should be reasonably able to identify the relevant drawings on account of his personal, professional knowledge of the project and the uniqueness of its specification.

14. C challenges D’s finding that the documents have no potential adverse or beneficial effect on the issues (EH1 p.23). The drawings are materially relevant in that they are likely to bear heavily on both the equal sightlines dispute and the substandard door height issue.

15. Disclosure of the log book, as a pivotal piece of evidence in this case, is therefore likely to be the most efficient means of disposal of significant factual disputes. As it is already in D’s possession and the identification of the relevant documents relies solely on his personal knowledge, it is submitted that the Court’s compulsion of its disclosure is also proportionate.

(b) Order from Monarch Wood Suppliers Ltd

16. D alleges that there is no textual evidence relating to the order he placed with his supplier for the wood used at the Property (WS/GS, para 4). C refutes this suggestion on the basis of common trade practice and normal business procedure. The price of the consignment, which D admits was around “several thousand pounds” (WS/GS, para 4) adds further doubt to the total absence of any paper trial.

17. Disclosure of any documents under this category would be entirely determinative on the mahogany wood issue: it would...