Wharf Properties Ltd and Another v. Eric Cumine Associates Architects Engineers & Surveyors (A Firm) and Others

CACV000084/1988

BETWEEN

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Coram: Hon. Power, J.A., Penlington, J.A. & Macdougall, J.

Date of Hearing: 22nd & 23rd November, 1988.

Date of Delivery of Judgment: 23rd December, 1988.

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The appellants 1st defendants, Eric Cumine Associates, Architects Engineers & Surveyors are a firm of Hong Kong architects. The plaintiffs/respondents Wharf Properties Ltd. and The Wharf (Holding) Ltd. (formerly, 'the Hong Kong & Kowloon Wharf & Godown, Co. Ltd.') are property developers. In 1974 the respondents, then under the ownership of the Hong Kong & Kowloon wharf & Godown Co. Ltd., commenced to develop their wharf facilities situated on the western side of the Kowloon Peninsula. The appellants were appointed as the architects for this project. The overall development was an enormous one with a projected completion period of seven years. In 1979 the Ocean Centre was completed and by 1984 the adjacent Harbour City was completed. The main contractor for the Project was John Lok & partners Ltd., the 4th defendant, and the foundation contractor was Shing Yip Engineering Co., the 3rd defendant. There were a large number of other contractors most of whom were joined as defendants in this action.

3. While the work was proceeding there were changes in the ownership of the developer and in November 1983, the Writ in this action was issued and served upon the appellants and seventeen other defendants.

4. The Writ has, since issue, been amended and re-amended and at present it extends to some 400 pages excluding supporting schedules. It is in an unusual form being divided not into paragraphs but into 28 sections. These sections are in turn divided into four parts.

5. The first part is comprised of section 1 which is an introductory section detailing the position at the date of the last amendment to the writ.

6. The second part is comprised of sections 2 to 22 and sets out the obligations of the 1st defendant and the alleged negligent breaches of duty by it. It is with the allegations of negligent in this second part that we are Presently concerned.

7. The third part is comprised of sections 23 to 27. We need not concern ourselves with these sections as in April 1988 the respondents withdrew the claims made therein.

8. The fourth part, comprised of section 28, is a claim against the appellants alleging negligent failure to exploit the full plot ratio potential of the site with the consequence that the area was under-developed. This claim has been the subject of a separate trial in which judgment has been given in the appellants' favour.

9. The first part sets out that since the commencement of the proceedings the respondents and the 2nd and 4th to 18th defendants have compromised their claims and counterclaims relating to the matters which the subject of these proceedings. It recites also that the claim against the 3rd defendants has been stayed pending arbitration and that the present claims are proceedings solely against the appellants. Section 1.3 sets out that Phase I of the development, which is the phase with which the allegations contained in sections 6 to 22 are concerned, covered a site area of 179,222 sq.ft. The work in this Phase was divided into five sections and as designed and constructed comprised 129 apartments, 118,706 sq.ft. of shop area (currently 75 units) 406,000 sq.ft. of office area (currently 123 units )and a hotel with 441 bedrooms. All of the matters of complaint set out in s.6 to s.22 are based upon delay alleged to have been caused by negligence or breach of contract or both on the part of the appellants. Mr. Butcher who appeared with Mr. Lewis for the respondents, abandoned the claim for damages for negligence and the respondents' case now rests solely upon the alleged breaches of contract.

10. The allegations broadly put are that the appellants by their failure properly to supervise contractors and sub-contractors caused or allowed the work to be delayed and that this had two effects. First, the delay of a particular contractor resulted in other contractors being unable to commence their work when they should have commence it which exposed the respondents to by them. These specific periods of delay affected specific contractors or sub-contractors. The second consequence was that the completion dates of various parts of the development were later than they should have been and that, because of this, the respondents suffered a loss of rental income.

11. The claims of the contractors who suffered damage because they were unable to commence their work on time, as we have already pointed out, have been compromised except in the case of the 3rd defend ant. The respondents claim that the appellants are liable for all of the payments made by them in this regard. The respondents also claim that the appellants are wholly liable for the loss of rent. The damages claimed with respect to the payments to contractors amount to $317,712,799 and the damages claimed for loss of rent amount to $199,910,544.

12. The wide-ranging allegation made against the appellants can be summed up by saying that contrary to their contractual obligations they failed to properly manage, control, coordinate, supervise and administer the work of contractors.

13. The Statement of Claim does not, however, with regard to any of the allegations of breach of contract causing delay, identify and particularize any specific period of delay said to have been caused by the breaches of the appellants. The late completion dates are, it is true, pleaded (section 6.5) as is the fact that contractors were given possession later than they should have been. Nowhere, however, does the pleading indicate which periods of delay were due to the alleged negligent mismanagement by the appellants.

14. Given that no specific periods of delay had been indicated in the Statement of Claim the appellants requested further and better particulars, and on the 11th of March 1987 Mortimer J., ordered that these particulars be given. It also seems clear that the judge at that time "ruled against the respondents on the question of discovery and said they must deliver their particulars of these requests before discovery." (Judgment of 1/6/88 p.5).

15. Mortimer J. when ordering that particulars be furnished held as follows:

"In this part of the case the main allegation is one of causing delay, which is made in a number of categories, which it is not necessary to go into, which appear in the pleading. The pleading is characterized in dealing with the question of delay by a large number of allegations of breaches of contract and negligence in falling to do things at the proper time. This failure resulted, it is said by the plaintiff, in late completion, the allegation being one of the main ones made by the plaintiffs.

Delay is pleaded in an unusual form as it is made out on the footing that there were certain justifiable reasons for delay, these are then subtracted from all other reasons, when one has subtracted these, responsibility for the whole of the remaining delay is that of the architects on the grounds set out in the pleading.

The pleading also contains a large number of extremely general allegations and consequent upon that one can turn almost to any page and find such allegations, for example of failure properly to co-ordinate and supervise and of issuing and continuing to issue late instructions, there by causing untimely variations to parts of the work.

It is not surprising therefore at this time that the plaintiffs do not contest in general that the particulars requested are in principle justified.

The principles of pleading are not in doubt. Order 18 r.7 provides that 'every pleading must contain and contain only a statement in a summary form of the material facts on which the party pleading reliance for his claim or defence as the case may be, but not the evidence by which those facts are to he proved and the statement must be as brief as the nature of the case admits'. The nature of the case admits the brevity of a Statement of Claim in this pat of the action of 382 pages.

But however long the pleadings are, the principles to be applied remains the same."

Mortimer, J., went on to say:

"One cannot help but say, and it is my judgment, that these matters are of the greatest importance in the case because serious allegation are being made against the Architects of breach of duty or contract and where such allegations are made against a professional person or firm it is of particular importance to know what has been said against him.

Accordingly, having wavered a great deal during the hearing, I am in these circumstances quite satisfied that such schedule would be of considerable assistance to the management of the case if the particulars requested be given in that form. The use of the schedules does not limit the Plaintiff in any way as to the answering of the particulars which he may give in relation to any of the allegations because if his case is such that it involves stating the nature of his case, he can do so although it must be remembered that this may be open to challenge and he may thereby be limited in what he can rely on.

I order that the particulars shall be given in the form of Schedules A, B, C, D, E and F of the particualrs, without limiting the Plaintiff to those particulars only."

16. The ruling makes it clear that the judge was satisfied not only that the particulars should he given but also that the plaintiffs did not contest that the application was justified.

17. At the outset of this appeal Mr. Neville Thomas, who appeared with Mr. Pennicott for the appellants, stated that it was common ground that if there is incurable vice in the claim made in section 7 of the Statement of Claim, that vice runs through all of the other sections. We have, therefore, dealt with this matter by directing out attention to section 7.

18. Paragraphs 7.5 to 7.11 of section 7 allege that the defendants' breaches had delayed and disrupted the work of the 4th defendants and the nominated sub-contractors in all five sections of Phase 1.

19. The request for particulars of those paragraphs as follows:

"Under paragraph 7.5 to 7.11

44. Request

(a) State, in relation to the 4th Defendants and each relevant nominated sub-contractor:

(i) the amount of delay to each of Sections I to V (inclusive) respectively; and

(ii) the amount of loss and expense,

for which the plaintiffs maintain that they are or were liable in consequence of the matters complained of against the 1st Defendants.

(b) State the amount of any loss of rent which the Plaintiffs maintain that they have sustained in consequence of the said matters."

20. There are six schedules in an appendix to the Request for Further and Better Particulars each dealing with a particular aspect of the alleged breaches e.g. "Schedule A: Late Instructions". In the case of each, the respondent was asked to specify the "consequences for the progress of phase I" arising from the appellants' breaches.

21. The answer to Request 44, for particulars under Paragraphs 7.5 to 7.11, was as follows:

"It is the plaintiffs' case that the cumulative delay to the works and the totality of losses as pleaded were the responsibility of the 1st Defendants. Due to the complexity of the project, the inter-relationship of the very large number of delaying and disruptive factors pleaded and their inevitable 'knock-on' effects and the necessarily overlapping nature of many of the allegations made (see, for example, as to supervision the replies to requests 121, 125 and 133 below) it is not possible at this stage to identify and isolate individual delays in the manner requested."

The answer goes on to justify and explain why it is said that this was not possible. There was, further, no attempt made to specify any individual periods of delay in the terms requested in the Schedule and ordered by Mortimer, J.

22. A further illustration of the approach of the respondents can be found in the answer to Request 34.

23. Section 7.2 alleged, inter alia, that the appellants had caused or permitted an excessive number of variations in the design of the 3rd defendants' works so as to disrupt their progress. Request 34 asked for particulars of the variations alleged to have been excessive in the schedule titled Schedule B. The Answer stated that:

"It is the plaintiffs' case that the volume of variations was excessive. It will he necessary at trial to consider all variations instructed in order to establish which of them were unnecessary or ought not to have been ordered. (Emphasis added) In the meantime the Plaintiffs have set out in Scott Schedule form the variations on which they rely to make their case. It will be noted that the Defendants' proposed Schedule B has been adapted to reflect the fact that information as to the original instructions (if any) is not known at this stage. The consequences of the excessive number of variations were delay and disruption to the works and claims against the Plaintiffs as to which the best information presently available is set out in reply to Request No.44 below. The columns concerned with consequences are therefore unnecessary and have been deleted."

The answer to Request 44, which we have set out above, was, then, that no answer could he given. It is also stated that it will not be known, until the trial which, if any, variations were not necessary and what, if any, delay resulted from each such unnecessary variation.

24. On the 30th of March 1988 the appellants took out a summons in which they sought, first; that the Statement of Claim be struck out on the ground that the pleadings did not disclose a reasonable cause of action and were otherwise an abuse of the process of the court or both and in the alternative that, if the plaintiffs failed within 14 days to provide full and proper particulars to, inter alia, Request 44, the action should be dismissed. The respondents took out a summons returnable upon the same day asking that prior to their being obliged to provide such further and better particulars the respondents provide to them discovery of all design flow information relevant to the request for further and better particulars.

25. Mortimer, J. first dealt with the submission that the pleadings did not disclose a cause of action in that neither the Statement of Claim nor the particulars specified any of the periods of delay said to have been cause by the acts or omissions of the appellants. When dealing with the Answer to Request 44 the judge said:

"There follows after that sentence a good deal of explanation, exculpation and argument. The effect of it is that the plaintiffs are saying that this is the nature of their case; that they are unable to establish or identify any individual period of delay in relation to any particular breach alleged against the defendants. They say implicitly that is the nature of their case. So the alienation is, as it was at the outset, that all the breaches were causative of the total of the delay claimed and (be it noted and reaffirmed in the course of argument before me) that there was no other cause for the delay claimed."

26. He noted Mr. Thomas's contention that because the causal connection has not been made and cannot be made by the plaintiffs, the Statement of Claim establishes no reasonable cause of action:

"Mr Thomas, in what can only he described as an attractive argument, says that this causal connection is vital to the claim. The plaintiffs have had years to make it. They have been particular and they say it is not possible now. They say it may be possible only after discovery, and that in any event they will do their best to provide further particulars. If they cannot succeed on the basis of their present pleadings, he says they cannot start a speculative action in the hone that something will turn up and he says that there is here no pleading doorway into the evidence of causation upon which the plaintiffs could succeed."

Mortimer, J. held, in this regard, that:

"... having considered all those matters in relation to whether this Statement of Claim demonstrates a reasonable cause of action, I decline to strike out the Statement of Claim on those grounds. An action brought without the plaintiff knowing facts upon which he can establish his claim in the hope that something will turn up during discovery in its widest sense, of course, ought to be struck out. This, however, is not such a claim. The allegations here of breach of duty causing cumulative delay and then causing the damage claimed, are all alleged and if proved in their entirety, would be sufficient, in my judgment, for the court to give judgment. The extraordinary evidential difficulties which this may pose to the plaintiffs is not a ground in my judgment for saying that no reasonable cause of action is demonstrated."

27. The Judge then turned to the submission that the pleading was an abuse of process as it failed to disclose to the appellants the case which they would have to meet. Having further canvassed the strong arguments put forward in this regard by Mr. Thomas the judge held:

"What I feared was that there could be a possibility that having settled the claims with all these contractors for delay and then having alleged every conceivable breach against the architects, that by seeking to show that these delays caused the cumulative delay without any intermediate stage referable to the individual breaches, this might be at attempt to throw a net over the architects and force them to get out of it by exculpating themselves rather than the reverse. The unsatisfactory nature of the plaintiffs case is frankly conceded by Mr. Butcher.

However, hearing all these matters in mind and the other arguments that have been ably presented, I am not prepared to strike out the claim as an abuse of process. In truth, this would be putting an end to a claim without a trial on the grounds of its apparent weakness and for the evidential difficulties which face the plaintiffs rather than anything else."

28. The Judge did, however, appear to have grave doubts as to whether or not the respondents could succeed. He said:

"This is a case in which the plaintiffs seek to leap the torrent because they say there are no stepping stones by which they can achieve the other side step by step. That may be fatal, indeed it may be impossible, but I am not able to say that it is impossible evidentially at this stage. It follows that there is a particular burden upon the trial Judge in this case to ensure as far as he can that no injustice is done to the Defendants by the way which the case is presented and to ensure that the parties are limited to their pleadings and do not stray outside. It could cause serious injustice if the Plaintiffs set out to prove their case in some manner other than that pleaded."

29. Understandably given his order dismissing the applicant's summons, the judge also dismissed the respondent's summons. He ordered, by consent, that there be discovery by exchange of lists within 60 days.

30. It is against the refusal of the Judge to strike out that this appeal has been brought.

31. We deal firstly with the submission that the pleading should be struck out on the ground that it discloses no cause of action. Mr. Thomas submits that, while it is Pleaded that the breaches by the appellants caused delay there is no hint or clue given as to which breach or which Parcel of breaches caused which period of delay. It is his principal content that cause of action for breach of contract is only properly pleaded if facts are pleaded which establish the breach, the causative effect of the breach and the financial consequences. He submits that the second stage, the causative effect of the breach, has not been pleaded and that no attempt has been made to attribute a consequential period of delay to any breach. Mr. Butcher, says that as the matter has progressed to date it has simply not been possible to formulate any such attribution.

32. At the outset we cannot help but observe that if there be any substance in the respondents claim, it is remarkable that it has not been able to link directly even one of the alleged numerous breaches to a particular period of delay.

33. Mr. Thomas referred to the Supreme Court Practice, and in particular to 0.18 r.7 (1) which states that:

"Subject to the provisions of this rule, and rules 7A, 10, 11 & 12, every pleading must contain, and contain only, a statement in a summary form the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits."

He relied on the passage at 18/7/5 which states:

"The general rule is thus stated by Cotton, L.J., in Philipps v Philipps (1878) 4 Q.B.D. 127, p.139:-

'In my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial.'

The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad." (per Scott L.J. in Bruce v. Odhams Press, Ltd. [1936] 1 ALL E.R. 287 at p.294.)

34. He referred to the definition of cause of action given by Diplock, L.J. in Letang v. Cooper [1965] 1 O.B. 232 when he said at p.243:

"But it is essential to realize that when, since 1873, the name of a form of action is used to identify a cause of action, it is used as a convenient and succinct description of a particular category of factual situation which entitles one person to obtain from the court a remedy against another person."

35. He submitted that the factual situation which would entitle a person to obtain a remedy for damages said to flow from a breach would properly be pleaded only if both the consequent loss and the periods of delay causing that loss were pleaded.

36. He referred to Bruce v. Odhams Press Ltd. [1936] 1 All E.R. 287 and in particular to the statement of Scott, L.J. at 294 where he said:

"The Cardinal provision in rule 4 (our rule 7) is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology and in the new is liable to he 'struck out' under R. C. Order XXV, r.4 or 'a further and better statement of claim' may be ordered under r.7."

37. Mr. Thomas argued that there was a clear failure in the present case to "state material facts", i e. the periods of delay caused by the breaches of the appellants.

38. He next referred to Saccharin Corporation Ltd. v. Wild [1903] 1 Ch. 410. The opening paragraph of the headnote sufficiently indicates the matters which were there at issue when it states:

"In a patent action for infringement, as in every other kind of action, the onus is on the plaintiff to prove that he has a definite cause of action against the defendant, and he is not entitled to call upon the defendant to disprove the alleged infringement - in other words, to prove that the plaintiff has no cause of action against him. And this is so even where the plaintiff may be suing upon several patents in one action upon the ground that it is impossible for him, unless the defendant discloses the process of manufacture of the infringing article to state definitely which of the patents in particular have or has been infringed."

39. Mr. Thomas referred particularly to the passage, at p 420, when Collins, M.R., after having indicated that "the plaintiffs' claim rests on no less than 23 patents", went on to say:

"It is all very well for Mr. Moulton to say that a patent, as its name imports, is a thing open to the whole world, and that therefore it is the simplest thing possible to examine it and see if it is a valid patent or not; but when a defendant is charged, as he is here, with a breach of someone or more, or all of 23 patents, in common Justice and in common sense he is obliged to look into them to see whether there is any ground for disputing their validity. Whatever may be the process the defendant in a patent action is adopting in his own manufacture, he is entitled, if he can, to dispute the plaintiff's right to complain of it, and to say 'if your own patent is not valid you cannot complain, and therefore I must look into your position, and see whether your patent is valid or not before I can elect (as I must before delivering my defence) to take objection to it on the ground of validity..... The defendant here says,

'That is a very great burden to impose upon me; you the plaintiffs are bringing, in point of fact, 23 different actions against me, and you compel me at my own risk and expense to examine into all the grounds of those actions, and take up a position, which will be practically irrevocable, of admitting or denying the validity of those patents, and confining myself to disputing the infringement if so advised. That is not a burden which it is fair for you, the plaintiffs, to put upon me,'

The plaintiffs reply:

'We are in very great difficulty in finding out which of our patents you are infringing by your Product; and because we are in that difficulty our easiest course is to put them altogether, and say we cannot point out under which of them your product has been made, but it must have been made under one of then.'

The Plaintiffs thus endeavour to shift the onus onto the defendant of disproving their case; in point of fact, the plaintiffs, on whom the burden lies in this case, are inviting the defendant to come forward and show that there is not a cause of action against him. Now that my mind, is a complete reversal of the true position. The burden of showing that he has a cause of action lies upon the plaintiff in a patent case just as much as upon the plaintiff in any other case. It is upon him to show that be has a cause of action by reason of the defendant having infringed his Patent."

40. Mr. Thomas submits that in the present case the fact that the respondents have difficulty in pleading their cause of action cannot be allowed to work in any way to the detriment of the appellants. If the respondents are unable to formulate and plead their cause of action then the burden of such failure must fall upon them.

41. Mr. Butcher, in this regard, contends that the obligations and the breaches are sufficiently spelt out and that the nature of the plaintiffs' case is clear, in that all of the breaches were responsible for the delay and that the totality of the breaches caused the damage.

42. Mr. Butcher reminds us that this is an appeal against the exercise of a judicial discretion and that we should only interfere if the judge was wrong in principle or if we are satisfied either that he gave no weight or no sufficient weight to considerations which ought to have weighed with him or was influenced by considerations which ought not to have weighed with him.

43. Mr. Butcher submits further that a cause of action accrues at the moment of breach, and that a pleading is sufficient if it asserts the existence of a contract, sets out facts which allege that the defendant was in breach, and claims damages. This submission must be examined with care.

44. There can be no doubt that an action in which there is a claim for damages is properly pleaded by the allegation of facts which, if proved, would establish the existence of a contract and that the defendant committed a breach of it. However, if where special damages are claimed, no facts are pleaded to ground that claim then the pleading is defective in that regard and all that a plaintiff could hope to recover would he nominal damages. The "complete cause of action" referred to by Scott, L.J., at p.294, in Bruce v. Odham Press, Ltd. [1986] l All E.R. 287 is, we are satisfied, only pleaded where, in obedience to 0.18 r.7 (1), the pleading contains "a statement in a summary form of the material facts upon which the party pleading relies for his claim......"

45. In a pleading such as the present one where substantial special damages are sought they must be supported by material facts sufficient when proved to establish the respondents' entitlement thereto. Although Mr. Butcher concedes that at the trial he will have to prove all the facts which establish the individual periods of delay caused to the contractors, he contends that his pleading, which omits those facts, cannot be assailed as it sufficiently links the damage to breaches which it is alleged have caused the overall period of delay. He does concede, as regards the piling contractor, who was the first contractor on the site, that probably an assessment of the delays caused by the appellants could have been made, but argues that it was not incumbent upon the respondents so to do. He further argues that as regards other periods of delay, it was not only unnecessary but was, indeed, impossible to give particulars because so many complex interacting factors came into play. It is the respondents' contention that, amidst all the conflicting delays, they cannot at this stage possibly say which was the prime delay.

46. It was at times difficult to follow Mr. Butcher's explanation as to the "impossibility" of pleading specific periods of delay or of furnishing particulars as to those periods. It was far from clear whether this "impossibility" was discovered after an attempt to make an assessment had been made or because, at the outset, a broad view was taken that it was so difficult that it should not be attempted.

47. When dealing with this aspect of the matter it is important to keep in mind the two types of delay for which damages are sought. Firstly there is the claim for damages arising out of the delay caused to specific contractors. Secondly there is the claim for damages for the overall delay which caused a loss of rental income.

48. In the former case the respondents must be relying upon individual periods of delay which caused or contributed to the delay which occasioned the loss to the individual contractors. We have in this regard no doubt whatsoever that the facts which establish such individual periods are "material facts" which must be pleaded.

49. While the position may not be as clear as regards the overall delay, we are, after consideration, satisfied that the facts necessary to establish the appellants' liability for that delay must also be pleaded. An assertion by counsel that the plaintiffs have not pleaded such facts because they are difficult to ascertain provides no shield against an attack upon the pleading.

50. In the light of these conclusions it becomes unnecessary to consider the other arguments that had been addressed to us save to say that Mr. Butcher submitted that where a court decides that a claim for special damages has not been properly pleaded, it should do no more than order that that claim be struck out. This stemmed from his contention that it would not be proper to strike out as an abuse of the process of the court any pleading which alleges a legally enforceable right, albeit one that sounds only in nominal damages.

51. We are satisfied that such a contention, however correct as a general statement of law, has no application in the present case. What we must here ask ourselves is whether "the complete cause of action" has been properly pleaded. The complete cause of action in the present case is clearly one for the recovery of massive special damages. In the circumstances as we apprehend them to be it would be quite unreal to suggest that the plaintiffs are also seeking somehow to vindicate themselves by pursuing through this complex and costly litigation claim for nominal damages.

52. We are satisfied on the facts before us that the only proper order is that the Statement of Claim be struch out. We will adjourn to hear argument as to costs.

53. Mr. Thomas conceded that the claims in paragraphs (2) and (3) of Section 22.7 which were not based upon allegations of breach causing delay should not fall along with the rest of the claim for special damages and we will hear the parties as to the appropriate order as regards those 2 claims.

Penlington, J. A.:

54. I have read in draft the judgment of Power J.A. and I agree with his conclusions. There is little I can usefully add.

55. The plaintiffs concede that they must prove all the breaches of contract alleged, and that the 3rd defendants and nobody else was responsible for them. They also, however, concede that in respect of the alleged breaches in allowing excessive variations in subcontractor's conditions they will not be able until the trial to show what variations were not necessary and what effect that had on the overall delay.

56. That approach is enough, in my view, to make this speculative litigation which would throw an enormous and quite unfair burden on the defendants and should not be allowed to continue. In Saccharin Corporation Ltd. v. Wild (which has not cited below) Collins M.R. said "The plaintiffs reply: we are in great difficulty in finding out which of our patents you are infringing by your product; and because we are in that difficulty our easiest course is to put them all together". That pleading was held to be wrong. Here, 5 years after the issue of the writ, the plaintiffs say they hope, before trial, to be able to give the particulars required and ordered as to damages. The defendant, however must go ahead and face the enormous cost of preparation for vastly complex trial without those particulars, having already successfully defended in a hearing occupying 3 months, the first part of the claim. That cannot be right and I have no doubt that in the particular circumstances of a case such as this the court should intervene to prevent what would he an abuse of its process.

57. The plaintiffs submit that this Court should not interfere with the exercise of a discretion unless it was clearly exercised on wrong principles. At page 10 of his Judgment Mortimer J. said "what I feared was that there could be a possibility that having settled the claims with all these contractors for delay and then having alleged every conceivable breach against the architects, that by seeking to show that those delays caused the cumulative delay without any intermediate stake referable to the individual breaches this might be an attempt to throw a net over the architects and force them to get out of it by exculpating themselves rather than the reverse. The unsatisfactory nature of the plaintiffs' case is frankly conceded by Mr. Butcher," Clearly the judge was not at all happy with the position and reached his decision with some reluctance. I think that if he had been referred to the dicta of Collins M.R. in Saccharin Corporation Ltd. v. Wild he would have decided this matter differently.

Representation:

A. Butcher, Q.C. & Kevin Lewis (Messrs. McKenna & Co.) for the 1st & 2nd Plaintiffs/Respondents.

Neville Thomas, Q. C. & Ian Pennicott (Nessrs. Johnson Stokes & Master) for the 1st Defendants/Appellants.