Inside & Outside the Law - An Olympian Row

As the world’s sportswomen and men begin to engage in 17 saturated days of competition, life outside the Olympian bubble goes on, and life includes people going to law in order to settle arguments.

Commercial disputes might be thought to live on the rational plain, and one could believe that the intensity of personal differences, whether played out in the Family courts or even in the raising of voices and occasional throwing of crockery of a domestic row, would not easily translate into a building construction dispute.


The Royal Courts of Justice in the Strand

That is probably so as a generality, but the case of Walter Lilly & Company Limited (“WLC”) v. (1) Giles Patrick Cyril Mackay and (2) DMW Developments Limited (“DMW”) demonstrates the vehemence that can be brought to the latter, especially when the subject-matter of the dispute is a family home.

I will stress that all that follows comes direct from the published judgement of Mr Justice Akenhead In the Queen’s Bench Division, Technology and Construction Court, issued on 11th July under reference [2012] EWHC 1773 (TCC) – the court sits in the swish new Rolls Building, off Fetter Lane just around the corner from the main Royal Courts of Justice building in The Strand.

Please feel free to search for and download the judgement for reading, but be aware that it runs to some 200 pages.

The facts need to be explained very briefly, but only to set the context.

The litigation concerned the building of 3 Bolton’s Place, one of three new houses. Bolton’s Place is in the affluent South Kensington area of London.

DMW was a purpose designed company vehicle set up to buy the land that formed No. 3 together with Nos. 1 and 2. The company was set up by Mr Mackay together with a Mr Daniel and a Mr West. No. 3 was intended to be occupied as a family home by Mr & Mrs Mackay together with their children. During the construction phase, 1, 2 and 3 were known as Units A, B and C.

The project did not run in accordance with Mr Mackay’s expectations, resulting in this litigation, under which WLC was claiming from DMW and Mr Mackay money that it considered due to it relating to the construction of No. 3.

The scale of the case can be demonstrated by the documentation put before the court, amounting to 32,000 pages, and the case report indicates that the parties expended between about £9m and £10m by way of costs.

The individual matters of contention within the overall case were many and various, and it is not the purpose of this blogpost to comment on those. But sticking with the vehemence theme, the human interest is in how angry and frustrated Mr Mackay became, and in how he manifested his emotions in correspondence.

A small demonstration of anger came as result of tensions within DMW. Para 33 of the judgement refers to a dispute between Mr West and Mr Mackay about the costs of moving an electricity sub-station from Unit A to Unit C, in which Mr Mackay referred to Mrs West as “avaricious and jealous” and as needing a “f***ing good slapping”.

However, the bulk of Mr Mackay’s anger expressed in writing, as reported in the case, was directed towards a Mr Howie, a director of WLC who was brought in during the job as (Para 95 of the judgement) “a trouble-shooter whose job it was to get the Works completed”.

So below is a selection of remarks reported as made in July 2008 by Mr Mackay in email correspondence between him and Mr Howie. They are taken verbatim from Para 87 of the judgement. Because there are two sides to any correspondence, it should be noted that Para 87 describes Mr Howie’s limited responses as “polite and restrained”.

Here are the quotes;

“Guess what when I have forgotten about you in a years time enjoying my £100 million home or sailing on one of my 40 meter yachts – you’ll still be trying to wind up some other poor unsuspecting customer with your brand of mediocrity – a sad loser – gaining your kicks and being irritating. Suggest a new career as a traffic warden might be ideal at least it wouldn’t involve lying”

“You’re such a loser. I’m going to enjoy finishing you off over the summer. But don’t worry you’ll be reading the contract I’ll be on the beach”

“50 this year – midlife crisis as well – nearest to a Ferrari you’ll ever get is a toy one…..”

“My middle name is relentless. I have the money and anger at this point to push on and make sure that you have to deliver or get punished for not delivering. I don’t want to have to fight for that, but trust me I will NEVER give up if you don’t start to change your attitude it will cost WL time and money - it may eventually cost you your job. Who knows. Never underestimate me,”

The court awarded to WLC a total net sum (exclusive of contractual interest) of £2,330,666.26. It is not immediately clear whether DMW/Mr Mackay will appeal.

As was made clear at the beginning of this blogpost, its purpose is not to discuss the merits of the arguments put forward on either side, and the whole judgement would need to be read in order to understand the full scale and complexity of the dispute. But it does demonstrate what feelings can be generated when a project does not go according to plan.

The author is a City of London and City of Westminster Guide, and former law firm partner, who runs walking tours in the City and in Westminster. See tabs for more information

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