The pursuit of truth

A top quality enterprise such as Devoran Joinery hardly wants to see its name in a formal law report. But there it is. Last week the High Court heard all about a dispute between Devoran Joinery and Mr A and Mrs P Perkins. A tiny dispute has exploded into an expensive and, I bet, worrying one for all sides. It's one of those rows where the payer holds on to a balance of a few thousand pounds saying the stuff supplied is duff, so the payee brings in a writ. Simple start. Then, there is a county court trial. The winner is announced, costs are awarded, then there is an appeal. Oh hell, here we go.

Let me tell you the story. Mr and Mrs Perkins built a home for themselves in South Mimms, Hertfordshire in 2000. They bought their windows and doors to a high quality from a quality company. The Perkins felt a draught from the two bay windows. Devoran didn't inspect; instead it sued for the £9500 balance. Draughts were then detected from the front door, then other window heads and casements. Oh dear. Devoran came to look. It was not until the three-day trial in 2002 that Devoran admitted, on a limited basis, defective workmanship. The Perkins were awarded £6000 for remedial work. However, the judge awarded the costs to Devoran, since too much was withheld by the Perkins. Undaunted, Mr Perkins went to the Court of Appeal to challenge the costs order and present more complaints about Devoran's windows. The Court of Appeal doesn't hear new stuff. Instead it set aside the costs award to allow Mr Perkins to chance his arm with a new set of proceedings.

So, he and Devoran went down the snakes and ladders board to somewhere on the bottom row. They came to court again, but this time Devoran was trying to block the new or changed or improved action. Lawyers will know why. It is all to do with a case 160 years ago called Henderson vs Handson, in which it was decided that it was an abuse of the court process to re-litigate a question already decided. But at about the same time as this case went back to court, the House of Lords took a fresh look at Henderson.

The case is Johnson vs Gore Woods. The true rule is not whether a claim or defence should have been raised in the first proceedings, rather it is whether a party is misusing or abusing the process of the court by seeking to raise an issue in a second case which could have been raised in the first.

Credit: Simone Lia

On top of this, an expert from the Glass and Glazing Federation has produced a report, which if shown to be sound at trial, is powerful stuff

Now, let me warn you: the judges themselves are still trying to get their minds around all this. When Mr Perkins brought the second action, the first judge said it was an abuse of process. But, the next judge on appeal reversed the position. This judge took notice of something which Devoran's glazing subcontractors had said at the time of manufacture to Devoran, but which only now came out. It had said that the design of the frames was "unusual/unsatisfactory/unwise and not recommended". It is ever so serious if at the time of the trial in 2002 this was true but not revealed to the court. Mr Perkins now claims deceit. He alleges that 96 casements were made that were too narrow to take the glazed units, and weatherproofing was deliberately omitted to permit the units to fit.

On top of all this, an expert from the Glass and Glazing Federation has produced a report, which if shown to be sound at trial, is powerful stuff. It says the defects were known to Devoran and to the glazing company prior to delivery of the goods. The expert says the glazed units were "forced" into undersized casements despite the known consequences. So, said the judge, "the idea that Mr Perkins should be deprived of the opportunity of advancing these serious allegations of deceit and misconduct (and having them tested at trial) is untenable".

Mr & Mrs Perkins have been embroiled in this dispute for six years. Devoran admitted in the first court case, four years ago, that their product was, in a limited way, defective. It must not be thought that they kept all this knowledge up their sleeve; it will take a second trial to investigate the truth of that. The big snag is that when evidence is given the rule is to tell the truth, the whole truth and nothing but the truth and for Devoran it must be vital for their reputation that they show they did.