Pre-Trial Skirmishing Can Be as Important as the Main Event

In commercial litigation, many of the most important battles are fought before the trial even starts and those who drag their feet or fail to comply with judicial directions can find themselves hamstrung when it comes to the main event. Exactly that happened in one case concerning alleged defects in property renovation works.

A building company had carried out the works at the yard of a crane hire company and at the home of one of the latter's directors. The building company launched proceedings, claiming to be owed a balance of £115,220 for its work. The crane hire company, however, issued a counterclaim alleging that the works were seriously defective.

The crane hire company claimed that the value of its counterclaim in respect of the works on the yard was £160,175. However, after much delay, it sought to put in fresh expert evidence and to increase that sum to £332,671. Following a pre-trial review of the case, a judge permitted it to rely on the expert's report but restricted its entitlement to damages to the original sum.

In upholding the building company's appeal against that decision, the High Court noted that the expert's report had been presented well beyond the eleventh hour and ruled that the crane hire company should not be permitted to rely on any part of it. The building company had made repeated, but vain, attempts to pin the crane hire company down as to the details of its counterclaim and had suffered irredeemable prejudice arising from the delay.

The effect of the Court's decision is that the crane hire company may have to drop the relevant part of its counterclaim.