Edward Iliffe v Feltham Construction, 9 July 2015, CA
In multi party litigation arising from fire damage, Feltham Construction appealed against an order granting summary judgement in favour of the…
In the context of multi party litigation involving various contractors arising from fire damage, Feltham Construction (“FC”) appealed against an order granting summary judgement (and an interim payment of £3m) under part 24 of the CPR in favour of the building owner Edward Iliffe (“El”). El bought Green Island in Poole Harbour, Dorset, for £2.5 million in 2005 to build a luxury wooden chalet. However, the chalet burnt down in April 2012 just before it was finished and remedial works were estimated at £3.5m. A forensic fire expert appointed by El said that FC, the main contractor, had failed to comply with building regulations when first installing the chimney flue and combustible materials were closer than the 50mm distance required from the chimney. FC denied that there was any contract and did not admit the cause of the fire. Also FC sought to blame sub-contractors. FC argued, on appeal, that the High court judge should not have granted summary judgement when there were issues about the contract; who was responsible for the works; and when various parties had not put their case and there were other potential causes of the fire.
The Court of Appeal (“CA”) held that the documentation was not sufficiently clear for the court to order summary judgement as it was made partly by conduct. The CA also found that there were issues about the cause of the fire, including a need to hear from the witnesses who were on site at the time. The judge, when ordering summary judgement, had only heard the evidence of one expert who had suggested various causes of the fire. Other experts had identified causes unrelated to the installation of the flue. The determination of other issues between other parties was compelling reason not to grant summary judgement.
Summary judgement was granted in this case because FC had no real prospect of successfully defending the claim, and there was no compelling reason why the case should proceed to trial. Note the very strong criticisms by Jackson LJ about the contents of the appeal bundle, which ran to over 2,500 pages, which led to an order that none of the parties could recover costs in relation to preparation of the bundle. Note also that the CA commended strong case management but said that summary judgement in a complex multi party action had inherent difficulties.