Fail to prove your case at your peril!

The Beattie v Canham case provides an excellent example of when being pragmatic, realistic and accurate in litigation are, more often than not, the best policies.

Case update: Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1414 (TCC) (“Beattie v Canham”)

The facts of the Beattie case are:

1. The Claimant (“Beattie”) claimed circa £3.7m in relation to demolition and remedial costs in relation to two PassivHaus blocks.
2. Damages awarded = £2,000
3. Costs awarded in favour of the Defendant (“Canham”) (on the indemnity basis) of £500,000. The costs claimed for the whole action were £637,000.

The reasons for the decision, in vast contrast to what was claimed by Beattie, are:

1. The £2,000 apportionment of the best assessment of the cost of certain limited remedial works that had been carried out by Beattie. The Honourable Mr Justice Fraser stated at paragraphs 34 -35 of the judgment; “this plainly was an exaggerated claim. Indeed, I would go further and say that it was wholly opportunistic. It was unjustified and extremely thin, at least so far as the quantum case was concerned”.
2. Canham made two Part 36 offers:
   1. On 21 December 2020, Canham offered to pay Beattie £50,000 plus costs of certain elements of their claim. That offer was open for acceptance until 11 January 2021.
   2. On 25 January 2021, Canham offered to pay Beattie £110,000 plus costs.
3. Beattie had relied on a heavily criticised expert report. Beattie had been “factually inaccurate” when responding to a request for information and that from 13 March 2020, Beattie had been “advancing a plainly untruthful case on a major and central point in the litigation. There is simply no excuse for this, and none has been proffered”.
4. Beattie had refused opportunities to narrow the issues and wholly ignored a Notice to Admit Facts served by Canham.
5. Canham was awarded costs on the indemnity basis from 13 March 2020 onwards  as “this reflects the stark fact that from that date onwards, the claimants were conducting the litigation on a wholly false factual basis, something that must have been known to the directors of both the claimant companies” (paragraph 51).

Not only does this case provide a helpful reminder of the value of submitting early Part 36 offers, but it is also a clear warning that litigation should be conducted with integrity, an open line of communication with the respective legal teams and an ability to evidentially justify the sums being claimed.

Please don’t hesitate to get in touch with a member of the Construction team at Brabners LLP to discuss how we can assist you with any of the issues covered in this article.