Iliffe & Anor v Feltham Construction Ltd

Judgment

Mr Justice Stuart-Smith:

Introduction

On 20 April 2012 fire destroyed a large house which was in the course of construction on Green Island, which is in Poole Harbour. The fire started in the roof. The Claimants have brought this action against the Defendant building contractor [“Feltham”] claiming damages in excess of £3,500,000. They now apply for summary judgment pursuant to the provisions of CPR 24 for damages to be assessed, and for a substantial interim payment.

The Applicable Principles

The principles are very well known and do not require to be set out in detail here. For the Claimants to succeed they must establish that the Defendant has no real prospect of successfully defending the claim and that there is no other compelling reason why the case should be disposed of at a trial. The word “real” has been much analysed: the Defendant must have some prospect or chance of success, which must not be so slim as to be false, fanciful or imaginary. Put another way, the Defendant’s case must be more than merely arguable and must carry some degree of conviction. Evidence is admissible on the application; and the Court should have regard to the possibility that further evidence would be available if the case went to trial.

The Court’s powers are not limited to merely granting or refusing permission to defend. Where the Defendant’s case may be described as real but seems improbable, the Court may make an order permitting it to defend the action conditional upon it bringing a sum of money into court or taking some other specified step in relation to his defence. The Court hearing the application also has the power to give further directions about the management of the case, pursuant to CPR 24.6 (b).

The Factual Background

The factual background is, or should be, largely uncontentious as it emerges clearly from contemporaneous documentation. I will indicate where any material dispute exists.

From the outset it was envisaged that the house would be constructed in three phases. Phase 1 was to be excavations, foundations and concrete work, and drainage. Phase 2 was to be the erection of the main house, which was to be made of wood by Pioneer Log Homes of British Columbia [“Pioneer”]. Phase 3 was to include the application of copper to the roof and a mechanical and engineering package and other fitting out works to bring the house to completion. The mechanical and engineering package included the supply and installation of a two-way log burni