A. Introduction
- In this action the Environment Agency (“EA”) claim damages for negligence and breach of contract against Lewin Fryer & Partners (“LFP”) arising out of the design and construction of the Jubilee River Project (“the Project”). This was a flood alleviation scheme covering Maidenhead, Windsor and Eton. The Project was completed in about November 2001. The EA allege that, after this date, there were floods and extensive damage due to deficiencies in the design work carried out by LFP. The damages claim is currently estimated in the region of £4 million.
- By an application dated the 13th March 2006, LFP sought extensive pre-action disclosure against three contractors involved in the Project pursuant to CPR 31.16 and CPR 31.17. Those contractors were:
(a) Jacobs UK Ltd., formerly Babtie Group Limited (“Babtie”), who were engaged by the EA to act as General Supervisor and Quality Management Supplier in respect of the Project;
(b) Balfour Beatty Civil Engineering Ltd (“BB”), who were engaged as contractors by the EA in respect of the northern section of the Project including Taplow Sluice and Glen Island Bund north;
(c) Edmond Nuttall Ltd (“Nuttall”), who were engaged as contractors by the EA in respect of the southern section of the Project, including Manor Farm, Slough Road, Myrke Embankment, and various other low embankments.
- In circumstances which are explored in greater below, those applications were due to be heard by this court on Thursday the 27th April 2006, but were abandoned just before or at the outset of that hearing. LFP were, therefore, obliged to pay the costs of the three contractors against whom the applications had been made.
- By an application dated the 9th June 2006, LFP now seek to recover against the EA their own costs of that pre-action disclosure application, together with the costs that they have been ordered to pay the three successful contractors. LFP say that these costs would never have been incurred but for the failures on the part of the EA to carry out their own disclosure obligations properly and their conduct during the relevant period of February to April this year.
- I propose to deal with this application by identifying first whether the court has the power to make the order sought and, if so, any limitations on such power (Section B below). I then summarise what I consider to be the relevant facts (Section C below). Thereafter, in Sections D and E below I analyse, by reference to the principles and the facts:
(a) Whether the EA were in breach of their relevant obligations;
(b) If they were, whether these breaches gave rise to LFP’s ultimately abortive applications against the three contractors;
(c) Whether, in all the circumstances, the EA should be ordered to pay the costs claimed.
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