The case was not obviously complex. Shand was main contractor engaged to carry out work on the A494 Mold bypass. FOQ entered into a subcontract with Shand. Work started in April 1991.
FOQ is a family company and associated family-owned companies provided it with management services from time to time. Several of these associated companies were wound up from time to time. FOQ's claims were related to delays and final account-type claims.
Initially, FOQ applied for summary judgment; that application was dismissed. Shand, which was taken over by Morrison Construction, applied to have the case stayed to arbitration; that application failed. In the autumn of 1995, FOQ was ordered to provide security for costs on the basis that it may have had insufficient funds. The firm then assigned its rights to sue to David Flood personally.
After an outing before one judge in February 1996, the Court of Appeal held that this assignment was substantially ineffective.1 Flood then applied to the court personally to represent his company because it could not afford representation.
In February 1997, Judge Lloyd rejected that application.2 Thereafter, there was an application for judicial review and another outing to the Court of Appeal relating to legal aid.
Finally, the case came to trial in 1998. The trial lasted about 60 days. Some months later, the judge gave a judgment that runs to more than 180 pages – the disputes were complex and extensive. A further hearing on a number of minor outstanding matters is due this July; so the story is not over yet.
For more than 10 years, the judges in the Technology and Construction Court have been using procedures similar to those envisaged under Lord Woolf's reforms, which have recently been introduced for other divisions of the courts.
Judge Lloyd proposed an “ad hoc procedure”, which involved sitting down informally to express his views. It proved highly successful
Indeed, in the FOQ case, Judge Lloyd proposed an "ad hoc procedure" for a number of items in dispute. This went a lot further than the Woolf procedures and involved the judge sitting down informally with the QSs, accompanied by junior barristers, to discuss their respective positions and then to express his provisional views in writing. That procedure proved highly successful.
The parties accepted the judge's provisional views on the items discussed, thus saving time and cost. The courts are and can be flexible, and perhaps as flexible as many arbitrators.
The courts' procedures are put in place to ensure a fair trial of the issues. Expedition in prosecuting actions has always been a requirement of the courts' procedures. Those procedures have been simplified and streamlined by Lord Woolf.
However, the reforms will not encourage litigants such as FOQ to reach a significantly earlier resolution of their disputes. All the applications and appeals made by the parties in this case can still be attempted by litigants in similar cases.
In a sense, the FOQ case is a sorry tale. However, there is little in the judgments to suggest that the five-year delay in bringing the matter close to final judgment was the fault of the courts. This long wait happened because one or other of the parties sought to obtain some procedural advantage or relief before the matter came to its main trial. The wheels ground slowly, but the locomotive manufacturer was not to blame.
1 81 BLR 21
Postscript
Robert Akenhead QC is a barrister specialising in construction law.
