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uk/archive/view/case/1445/walter_lilly__company_ltd_v_mackay__ano
r_2012_ewhc_1773
!eutral "itation !um#er: $2012% &'(" 1773 )*""+
"ase !o: 2010,*""17747
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

-oyal "ourts o. /ustice
0trand1 2ondon1 '"23 222

4ate: 11
th
/uly 2012

Before :

MR JUSTICE AKENHEAD
, , , , , , , , , , , , , , , , , , , , ,
Between

!ALTER LILLY " COM#ANY LIMITED C$%&'%nt
( %n) (
*+, GILES #ATRICK CYRIL MACKAY
*-, DM! DEVLO#MENTS LIMITED

Defen)%nt.

, , , , , , , , , , , , , , , , , , , , ,
, , , , , , , , , , , , , , , , , , , , ,

Se%n Br%nn&/%n QC %n) Anne$&e.e D%0 QC )instructed #y Re0no$). #orter C1%'2er$%&n
LL# + .or the C$%&'%nt
D%3&) Se%r. QC4 Seren% C1en/ %n) D%3&) Jo1n.on )instructed #y N%2%rro. LL# + .or the
Defen)%nt.

(earin5 dates: 12,151 16,221 27,26 8arch1 2,4 3pril and 3 8ay 2012
, , , , , , , , , , , , , , , , , , , , ,
JUDGMENT
Mr J5.t&6e A7en1e%)

1. *his liti5ation raises e9tensive disputes which have arisen on a su#stantial new #uildin5
project at 31 :oltons ;lace1 2ondon 0'5. *he project commenced in a#out 2004 and it is
common 5round that1 when the "ontractor1 'alter 2illy < "ompany 2imited )='2"=+1 was
appointed as main contractor1 desi5n work was nowhere near completed. >t was clear and
#ecame clearer that the employer1 48' 4evelopments 2td )=48'=+1 had very hi5h
e9pectations. (owever1 little i. any desi5n had #een completed prior to the involvement o.
'2". *here were su#stantial delays1 much o. which initially at least were not the
responsi#ility o. '2"1 and as time went on 48' .ell out seriously with its 3rchitect. >t can
certainly #e seen with hindsi5ht1 and could pro#a#ly have #een .oreseen1 that the project was
=a disaster waitin5 to happen=. *his certainly has proved to #e the case.
2. *he case raises a num#er o. issues which may #e o. interest to the construction industry and
specialist le5al practitioners and these include 5lo#al claims and concurrent delays. >n one
sense1 this liti5ation is very old,.ashioned #ecause it has involved a .ull,#looded con.lict
#etween the parties in which there seems to have #een little1 no or #elated room .or
compromise1 althou5h the ?uantum e9perts have 5one some way to reducin5 what is in
issue. *here remain in e..ect hundreds o. issues #etween the parties1 hence the len5th o. this
jud5ment. 4i..erent approaches are adopted #y each party on delay analysis. !o ?uarter was
5iven on any o. the primary matters in issue. 0ome very personal criticisms and complaints
have #een made #y each party a#out one or more o. the other side@s witnesses. *here have
#een over 321000 pa5es o. documentation put #e.ore the "ourt )al#eit with a si5ni.icant
amount o. duplication and irrelevant material+1 there have #een 6 .actual witnesses and A
e9perts and the trial hearin5 has lasted 17 days. *he e9pert #undles themselves run to 33 in
num#er1 totallin5 some 111000 pa5es. >t seems that the parties have e9pended #etween a#out
B6m and B10m #y way o. costs1 which is o#viously disproportionate to what is in dispute.
3. > propose to divide this jud5ement into a num#er o. sections:
3. Ceneral "hronolo5y.
:. 3ssessment o. 'itnesses.
". *he "ontract.
4. *he ;roceedin5s and the ;leadin5s
&. 3nalysis o. 8ajor "auses o. 4elays and 8ajor 4e.ects.
D. &9tension o. *ime.
C. Euantum 4elay.
(. Fther 4e.ects.
>. Fther Euantum.
>n the Ceneral "hronolo5y which .ollows1 > will not set out in detail the history relatin5 to
the 2i5ht 'all1 the 3:'1 the "ourtyard 0lidin5 4oors1 the li.t1 the :arrisol "eilin5s1 the
0tin5ray 4oors1 2eather in the 2i#rary1 sna55in5 or plaster de.ects which will #e dealt with
in the 3nalysis o. 8ajor "auses o. 4elays and 8ajor 4e.ects.
Gener%$ C1rono$o/0
4. !o1 3 :oltons ;lace1 owned and occupied #y 8r and 8rs 8ackay1 is one o. three adjacent
houses o. similar desi5n. 48' was a purpose desi5ned vehicle .or the ac?uisition o. the
land at what is now !os. 11 2 and 3 :oltons ;lace and was .ormed #y three people1 8r
8ackay1 8r 4aniel and 8r 'est. *he three houses were known durin5 construction as Gnits
or ;lots 31 : and "1 o. which " was to #e 8r and 8rs 8ackay@s. *he houses are o.
rein.orced concrete construction on piled .oundations and the e9ternal walls are #rick1
althou5h the 5round .loors are rendered in a .au9 rusticated manner. *here are .ive .loors1
with a #asement containin5 a #elow 5arden swimmin5 pool set across a narrow courtyard1 a
5round .loor and three other .loors. *he third .loor is located #ehind a mansard style slate
clad roo.. 'hilst each house was #uilt to a similar shell and core1 the interiors were .itted
out to suit the re?uirements o. the individual owners.
5. *he #asement at !o.3 comprises on the west side a lar5e ha#ita#le space1 desi5nated as the
2i#rary where the e9tensive #ookcases are covered in stitched leather. *he 2i#rary windows1
which lar5ely comprise a lar5e slidin5 door1 look out onto a courtyard with a water .eature1
on the other side o. which #ehind a similar slidin5 door is the swimmin5 pool1 on the
western side o. which are 5lass screens #ehind which there are chan5in5 rooms1 a lavatory
and shower. *he very su#stantial slidin5 doors which lead out .rom the swimmin5 pool and
the 2i#rary are known as the "ourtyard 0lidin5 4oors. *he 5lass screens on the western side
o. the pool comprise and incorporate a li5htin5 .eature which allows a .low o. chan5in5
coloured li5ht .rom top and #ottom to #e di..used throu5h the whole o. the screenH this is
known as the 2i5ht 'all. >n the #asement there is also a cinema and #elow the e9ternal area
immediately outside the .ront door is a 5ara5e accessed #y a car li.t. *he ceilin5s o. the
swimmin5 pool and the cinema comprise what is known as :arrisol ceilin5s which
essentially are a stretch li5ht coloured .a#ric which conceals a su#stantial #ank o. li5hts
which also chan5e colour and are supposed to #e di..used evenly throu5h the ceilin5
downwards. *here are also a wine cellar1 5uest toilet .acilities1 a kitchen1 laundry and sta..
?uarters. *here is a secondary staircase to the 5round .loor. *he 5round .loor comprises a
lar5e entry hall1 to the west a lar5e .amily room and to the east the drawin5 room in addition
to which there are 5uest cloakroomsH the doors to these two rooms were known as the
0tin5ray doors and were very su#stantial metal lookalike doors. *he .irst .loor contains the
master #edroom suite1 includin5 #athroom and dressin5 rooms as well as two studies1
re.erred to as (is 0tudy and (er 0tudy. Fn the second .loor there are two su#stantial
#edrooms .or each o. the 8ackays@ children1 each havin5 a #edroom with en,suite #athroom
and a study. *he third .loor comprises a 5uest suite on the east side and a 5ymnasium on the
west side. -isin5 up and down .rom the 5round .loor is a reasona#ly capacious circular
staircase in the middle o. which there is a li.t which runs all the way up the house. 8uch o.
the .loorin5 is o. 3merican :lack 'alnut )=3:'=+H 3:' was also used .or much o. the
cup#oard joinery as well as .or the skirtin5s.
7. 8r and 8rs 8ackay assem#led initially the .ollowin5 desi5n and pro.essional team:
3rchitect: :arrett 2loyd 4avis 3ssociates )=:243I+
>nterior 4esi5ner: >nitially Do9 2inton and later /anine 0tone >nterior and 3rchitectural
4esi5n )J/0>I+
0tructural &n5ineer: "ameron *aylor :ed.ord
0ervices "onsultants: "hapman :athurst ;artnership )=":;=+
2i5htin5 "onsultants: &?uation 2i5htin5 )=&?uation=+
Euantity 0urveyor: Cardiner < *heo#ald )=C<*I+
;roject 8ana5er: 0econd 2ondon 'all )=02'=+
Dit,out 8ana5er: -ider 2evett :ucknall )J-2:I+.
:243 was re,placed as architect #y !avi5ant "onsultin5 in a#out 8arch 200A1 which was
itsel. placed #y a 8r 8ulhearn in a#out 8arch 2006. 3 .irm called 8alishev 'ilson
&n5ineers was retained in late 2004 #y 48' or possi#ly :243 on 48'@s #ehal. to
desi5n the li.t sha.t.
7. ;lannin5 permission had #een o#tained in 1666 and was su#ject to a condition that work had
to start within 5 years )#y 15 /une 2004+. *he .irst permission was .or the demolition o. the
e9istin5 &arls "ourt telephone e9chan5e which had stood on the site .or many years and the
second was .or the construction o. three dwellin5 houses with #asements and attached
5ara5es with access .rom :oltons ;lace. *here was there.ore some pressure on all concerned
to 5et the jo# started within that timescale.
A. >n early 2001 8r 8ackay #ecame aware that :* was proposin5 to sell the site and he
teamed up with two .riends1 ;aul 4aniel and 0tephen 'est1 to purchase the site .or B13.2
million on the #asis that each would have one o. the three units1 31 : and "1 Gnit " #ein5
.or 8r and 8rs 8ackay. >n 2004 the three o. them set up 48' as the corporate vehicle
throu5h which the development would #e carried out. >nitially1 48' used the ori5inal
architects who had helped secure the plannin5 permission. C<* were retained in 2003 as
were 02'1 ":; and :243. >n mid,20041 the 8ackays retained Do9 2inton as the interior
desi5ners1 in particular 3nthony :evac?ua1 known as J:evI. >t was only later1 in De#ruary
2005 that the 8ackays retained &?uation as the li5htin5 consultants. >n 20071 -2: was
retained to provide a ran5e o. ?uantity surveyin51 #uildin5 survey and project mana5ement
services to mana5e directly employed artists and tradesmen.
6. 8r and 8rs 8ackay wanted to create what they call their =dream home= .or themselves and
their two children. 8rs 8ackay spent a very lar5e amount o. time in researchin5 in
particular the interior desi5n and .it out. 0he collected ima5es .rom ma5aKines such as
=(ouse and Carden=. *hey decided on the overall concept which was to #e Jmodern1 stylish1
with 5reat attention to detail1 lu9urious with the hi5hest ?uality o. .inish with smart1 shiny
dark 5lossy .loors1 lu9urious #athrooms1 #eauti.ul li5htin5 and ele5ant per.ect .inishes=1 as
8rs 8ackay said in her witness statement.
10. 0eparate contractors havin5 #een en5a5ed to carry out the demolition work to remove the
telephone e9chan5e #uildin51 .our contractors1 includin5 '2"1 were invited to tender .or
the main #uildin5 works. '2" was to descri#e itsel. as havin5 particular and e9tensive
e9perience o. workin5 on hi5h,?uality residential and new #uild projects. Fn 27 8arch
20041 '2" su#mitted its tender in the sum o. B1514771670.66 .or construction o. all three
plots. >t re.erred to there #ein5 limited in.ormation and how di..icult it was to conclude an
actual pro5rammeH althou5h the stated completion period was 7A weeks1 '2"@s e9perience
su55ested A0 to 60 weeks1 notwithstandin5 the enclosed pro5rammes showin5 a 7A week
period and some 23 work packa5es. *he &9ecutive 0ummary stated that it would provide =a
dedicated specialist team1 which has e9tensive e9perience o. workin5 on hi5h,?uality
residential projects includin5 new #uild= and that it had a =stron5 track record o. workin5 on
schemes which re?uire desi5n input .rom the contractor as well as the a#ility to work with
desi5n teams.= *here was a detailed #reakdown o. the preliminaries to #e provided at a total
cost o. B1143A1500.72. *here is no hint or su55estion at the time .rom 48'@s desi5n team
that this was an inade?uate allowance. >ndeed i. anythin5 it was somewhat hi5her than C<*
had estimated.
11. *he tender was .urther ne5otiated and reductions totallin5 some B1051000 were ne5otiated1
leavin5 a net ?uoted price o. B1513721672.A3H this ne5otiation was thou5ht necessary )as 8r
8ackay con.irmed in his witness statement+ #ecause '2"@s pricin5 o. preliminary costs
and pro.it overheads was sli5htly over the #ud5et which C<* had set )this also #ein5
con.irmed in a ;roject 8eetin5 minute o. 20 3pril 2004+. Fn this #asis1 '2"@s tender was
accepted in that amountH it had #een con.irmed that the overhead and pro.it percenta5e was
set at 4.5L. *he 4ate o. ;ossession was to #e 12 /uly 2004 and the 4ate .or "ompletion
was 23 /anuary 2007. *here were 5raded li?uidated dama5es rates )B21150 .or each o. the
.irst seven days o. culpa#le delay1 B21A50 per the ne9t 1A days1 B41300 to the ne9t 44 days
and B71400 per day therea.ter+. *he actual .ormal 8emorandum o. 35reement was si5ned
on and dated 2A 8ay 2004.
12. 3 0u#,"ontract ;rotocol )incorporated in the "ontract+ was drawn up 10 8ay 2004 which
was to esta#lish procedures #y which su#,contractors were to #e retained #y '2" to
prepare a proposed schedule and scope o. trade tender packa5es1 to identi.y an initial list o.
suita#le tenderin5 su#,contractors1 prepare a pricin5 documents .or all packa5es1 to prepare
with C<* ?uantities .or the =key works packa5es=1 prepare and issue tender en?uiry
documentation1 to arran5e and undertake a commercial and contractual appraisal o. the
pre.erred tender in conjunction with C<* and to re?uest an instruction to enter into a
su#contract order and .ollowin5 receipt o. an instruction to place an order with the
su#contractor identi.ied in the instruction.
13. *here is no dou#t that at this sta5e a very lar5e num#er o. desi5n decisions had not #een
taken up #y the 8ackays and their pro.essional team and the desi5n1 such as it was1 was in
many respects at #est at an incipient sta5e. 3part .rom the preliminary cost items1 all the
actual #uildin5 works were the su#ject matter o. provisional sums and the "ontract
speci.ication and drawin5s were lar5ely outline with little or no detail. Fver one year later
on 16 3u5ust 20051 :243 was to write to C<* sayin5 that: =*he distance #etween client
aspirations and cost has never #een so .ar apart=. *his hi5hli5hted what was to #e a
continuin5 pro#lem1 namely considera#le delays in securin5 desi5n decisions so that '2"
and its su#,contractors could pro5ress the 'orks with reasona#le e9pedition.
14. *he .irst major element o. the works to #e instructed was the pilin5 and it was made clear to
'2" that it was to #e responsi#le .or the desi5n. *his was con.irmed at a project meetin5
on 4 8ay 2004. '2" ne5otiated with several pilin5 contractors and on 2A /une 2004
recommended that the pilin5 packa5e was awarded to 0tent Doundations. :243 issued an
instruction )3>001+ on 30 /une 2004 .or '2" to issue a letter o. intent to 0tent authorisin5
limited works up to a value o. B1010001 which in e..ect '2" did a .ew days later. *he
reason .or the 3rchitect@s reticence was that the demolition works #ein5 carried out #y (
0mith &n5ineers 2td were delayed. 3lthou5h it was not until 17 3u5ust 2004 that :243
instructed '2" to enter into a .ormal su#,contract with 0tent Doundations )in the sum o.
B7371677.07 #y 3>007++1 a .urther instruction the .ollowin5 day de.erred the start o. the
works until 31 3u5ust 2004 due to demolition delays. >ndeed1 '2" was itsel. instructed #y
the 3rchitect )3>00A+ to carry out certain .urther demolition work o. under5round concrete
and #rick work. *he works started on 30 3u5ust 2004. :y 10 0eptem#er 20041 '2" was
reportin5 that the contract was in delay #y some .our months. 0ome delay and disruption
was caused #y the presence on site o. trees su#ject to tree preservation orders and over the
.ollowin5 .ew months permission was secured .or the .ellin5 o. such trees.
15. Fn 22 /uly 20041 '2" produced its procurement pro5ramme which was at least partly
#ased on their tender pro5ramme which in relation to each packa5e indicated dates #y which
'2" wished to receive =desi5n tender in.ormation=.
17. Fver the .ollowin5 months o. 20041 pilin5 work proceeded and '2" also invited tenders
.rom various 5roups o. su#,contractors .or the mechanical and air conditionin5 services and
the #rickwork and #lockwork. Fn 1A !ovem#er 2004 :243 instructed '2" to enter into a
contract with Melt#ray 2td to carry out superstructure concrete works. :y early 20051 '2"
had 5iven noti.ications under "lause 25 o. delays caused #y tree removal pro#lems1
additional pilin5 works and the late instruction o. Melt#ray.
17. Fver the latter part o. 20041 there had #een discussions a#out the need .or the sin5le contract
relatin5 to all three houses to #e split out into three separate contracts. Dor instance in late
/uly 20041 C<* communicated with '2" a#out splittin5 the overall contract sum into three
separate sums. Fn 6 3u5ust 20041 8r "orless o. '2" provided a #reakdown o. the
preliminaries .or each house. *here was concern on the part o. '2" that the three houses
were constructed as three le5ally separate contracts #ecause the level o. preliminaries could
only #e maintained provided that all works were and continued to #e run in tandem. *his led
to a 4eed o. Nariation dated 23 4ecem#er 2004 where#y '2" was en5a5ed #y 48' to
carry out #uildin5 works .or each o. the three units e..ectively #y way o. three separate
contracts. Dor Gnit "1 the "ontract 0um was B512A11674 with the same ;ossession and
"ompletion 4ates as #e.ore and the same contractual conditions.
1A. Fn 23 4ecem#er 20041 :243 issued an instruction )3>032+ to '2" to enter into a contract
with 4oppler 2i.ts .or the supply1 installation and maintenance .or the car and passen5er
li.ts. >n conse?uence o. this1 '2" did place a contract with 4oppler1 the terms o. which
re?uired it to pay a su#stantial deposit to 4oppler. *his 5ives rise to one o. the .inal account
claims.
16. 3t this time1 the .ormal a5reement #etween 48' and :243 was entered into pursuant to
which :243 was to #e the =4esi5n 2eader=1 =2ead "onsultant= and "ontract 3dministrator.
20. :y the end o. 20041 apart .rom the desi5n o. the pilin5 and principal structural and e9ternal
envelope works1 the desi5n .or much o. the remainder o. the work was su#stantially
incomplete. *his was acknowled5ed in part #y the 3rchitect who con.irmed at a meetin5 on
the 17 !ovem#er 2004 that the ="lients@ desi5n decision deadlines $on% the current
pro5ramme is $sic% are pro#lematicI. *here is little or no evidence that the 8ackays were
ever clearly advised #y their pro.essional team o. the critical need .or the desi5n to #e
decided upon sooner rather than later. 8ajor aspects o. the interior desi5n were not resolved
until 20071 well a.ter the ori5inal contractual date .or completion. >n this conte9t1 and 5iven
that it was open to 48' to desi5nate within the con.ines o. the contract that '2" desi5n
su#stantial elements o. the 'orks1 '2" wrote on several occasions in 2005 to :243
seekin5 instructions and clari.ication as to what i. anythin5 else )other than the pilin5+ it was
to desi5n. Dor
instance on 21 8arch 20051 '2" wrote to :243 in the .ollowin5 terms:
J'ithin the preliminaries section 313,4escription o. 'ork1 o. the contract documents1
there is a list o. trades that Omay #e desi5ned #y the "ontractor@. >n our *ender
su#mission we e9cluded any ;ro.essional >ndemnity >nsurance or any
desi5ner/coordinator input associated with "ontractor 4esi5ned works.
'e have pu#lished our understandin5 o. the current "4; re?uirements and have
reported our pre.erence that &mployer@s -e?uirements #e developed .or inclusion in
tender packa5esP
'e there.ore enclose herewith our updated list o. the current state o. "4; packa5es on
this project. 'e would #e 5rate.ul i. you could check the status and advise us whether
any .urther packa5es need to #e added. 'e would also #e 5rate.ul i. you could indicate
when &mployers -e?uirements .or the noted trades/ packa5es will #e availa#le.
*his will help us to identi.y the desi5n implications and responsi#ilities1 in order that we
can include a su..icient level o. ;> cover and also assess the re?uired level o. desi5n and
coordination the mo#ilisation at the appropriate sta5e o. the procurement process.
"learly1 the cost o. the ;> cover and any resources re?uired to .acilitate desi5n
mana5ement and coordination will need to #e assessed and incorporated within the
comparisons to each relevant packa5e. >t is there.ore important that an e9haustive list o.
all "ontractor 4esi5ned 'orks is identi.ied at the earliest opportunity in order that ;E0
can #e noti.ied o. any additional costs=.
*he attached list identi.ied the packa5es then envisa5ed with many o. the items indicatin5
no desi5n responsi#ility #ut some such as the courtyard slidin5 doors to #e su#ject to =.ull
desi5n , 0u#ject to $0u#,"ontract%I. *his was .ollowed #y similar letters dated 13 8ay 2005
and 10 3u5ust 2005 which also elicited no su#stantive response. *here is no evidence that
:243 ever raised this important issue with their clients. *hat 48'@s 4esi5n *eam were
aware o. the need to .ormalise arran5ements a#out who was to #e responsi#le .or desi5n is
clear .rom such correspondence as is availa#le to the "ourt relatin5 to the pilin5 in relation
to which 8r &lliott o. C<* e,mailed 8r 8c8orrow o. '2" on 11 !ovem#er 2004
con.irmin5 that =a set o. documents can #e 5athered to pass #ack to the "lients@ solicitorsI
5oin5 on to say that =this will #e necessary .or all o. those packa5es so that desi5n
responsi#ility is passed down to 'ater 2illy=.
21. !oti.ications o. delay under "lause 25 o. the "ontract "onditions continued to #e made #y
'2". *here were such noti.ications on 5 /anuary 2005 )Melt#ray late instructions+1 12
/anuary 2005 )pilin5 chan5es+1 4 De#ruary 2005 )late instructions .or pre,cast concrete
.eatures work1 eventually leadin5 to 0terlin5 0ervices #ein5 retained+ and 23 De#ruary 2005
)additional draina5e works and late draina5e instructions+. >t was only on 1A De#ruary 2005
)3>045"+ that :243 instructed '2" to enter into a contract with :ansal :uildin5 .or the
.air .ace #rick and #lock work1 .ollowin5 a series o. cost reduction e9ercises.
22. *here were re5ular meetin5s #etween '2" and the pro.essional team. *hese included
procurement meetin5s. Ceneral speci.ications .or Ceneral ClaKin5 )10 8ay 2005+1 ;urpose
8ade /oinery )12 8ay 2005+1 0tructural Class 3ssem#lies )31 8ay 2005+ and ClaKed 2i.t
&nclosure )2 /une 2005+ were issued to '2". >n 8ay 20051 '2" invited a company called
Dirmans to provide and .i9 the two "ourtyard 0lidin5 doors1 an order .ollowin5 in
0eptem#er 2005. (owever1 this had #een preceded #y e9tensive contact directly #etween
:243 and Dirmans )as evidenced #y e9ample #y a letter dated 7 /anuary 2005 .rom :243
to Dirman discussin5 various desi5n options and decisions1 to which '2" was not a party.
Dirman indeed provided ?uotations direct to :243 which continued to liaise with Dirman
a#out desi5n as recorded in procurement meetin5s in 3pril and 8ay 2005+. Fn 23 /une
20051 3dams /oinery 2td ?uoted .or the supply and installation o. joinery in a num#er o.
rooms ).ive #athrooms1 two dressin5 rooms and two '"s+H the scope o. their work was to
#e e9tended su#stantially #y later ?uotations and re,?uotations. :243 did not instruct '2"
to place an order .or this work until 3 Fcto#er 2005 )3>177"+. *his led to an e9tension o.
time noti.ication #y '2" on 7 Fcto#er 2005.
23. '2" wrote to :243 on 21 /uly 2005 to the e..ect that it was incum#ent on the 3rchitect in
issuin5 instructions .or provisional sums1 usually on the #asis o. a tender process involvin5
su#,contractors and suppliers1 to identi.y the likely impact o. such instructions on the
contractual "ompletion 4ate and i. appropriate to adjust that "ompletion 4ate and to award
any related loss and e9pense. 3 schedule was attached which showed a5reed chan5es to the
ori5inal pro5ramme occasioned #y provisional sum instructions. >t also placed on record
=that the .low o. in.ormation continues to la5 #ehind dates a5reed in #oth the ;rocurement
and >n.ormation -e?uired 0chedulesI and emphasised that it was =critical to adjust the
pro5ramme in a timely manner to ensure that the employer is aware o. the current .orecast
completion date as well as any adjustments to the "ontract 3risin5 .rom the architect@s
instructionsPI. *his elicited no response.
24. :y 3u5ust 2005 there were numerous items o. in.ormation and instruction awaited .rom
:243. *his was noted at the procurement meetin5s as well as in correspondence. Dor
instance on 2 and 17 3u5ust 20051 numerous work packa5es were listed that should have
#een secured and in respect o. which tender in.ormation was still awaited1 all o. which was
to #e actioned #y :243. >t is not wholly clear why :243 was so .ar #ehind with the
provision o. in.ormation and instructions #ut there is no su55estion that it was in any way
the .ault or responsi#ility o. '2". Fne o. the reasons however undou#tedly was that the
clients@ wishes were not capa#le o. #ein5 accommodated within the #ud5et which they had
set and a su#stantial amount o. work had to #e done to try to accommodate #oth. "ertainly
there were su#stantial tensions #etween 8r 8ackay and the pro.essional teamH .or instance
he wrote to C<* on 17 !ovem#er 2005 complainin5 that they were:
JPso wron5 in terms o. your num#ers1 #ud5ets and procurements and > think you owe
me an answer to my ?uestion and to least have the 5ood 5race to start doin5 somethin5
a#out this other than tryin5 to make me look like >Qm an idiot. *hat > may #e #ut only in
the conte9t o. employin5 you to look a.ter the costs plans on the jo#=.
*hese tensions hi5hli5hted the .act that many tenders had come in over #ud5et1 as reported
in a num#er o. meetin5s in 2004 and 2005.
25. :y 0eptem#er 20051 the 8ackays and various mem#ers o. the pro.essional team had #e5un
to research and investi5ate the e..icacy o. the 2i5ht 'all. Dor instance in 8ay 20051
&?uation had produced .or 8r 8ackay some sketch drawin5s representin5 the .irst outline
desi5n and in /une 2005 he attended a meetin5 with :ev at &?uation@s o..ices to discuss the
2i5ht 'all at which he was shown .i#re,optic li5hts #ein5 applied to the ed5e o. a plastic
sheet that he was told was called ;risme9. Fn 27 0eptem#er 20051 Dirman was invited to
tender .or the other elements o. the 5lass cu#icles .or the swimmin5 pool area. >t was only in
!ovem#er 2005 that 8r 8ackay saw a small mock,up o. the 2i5ht 'all and instructed the
team to proceed. >t was only on 2 De#ruary 2007 that :243 instructed '2" to place an
order with Dirman .or the 2i5ht 'all1 althou5h '2"@s tender report o. 24 !ovem#er 2005
had said that a 23 week period was re?uired #y Dirman .rom the su#,contract #ein5 let to it.
>t was also over this period that there were discussions )not involvin5 '2"+ a#out the
:arrisol ceilin5s and the li5htin5 arran5ement a#ove them1 al#eit that in early Fcto#er 2005
'2" did receive an estimate .or the supply and installation o. the :arrisol sheetin5 in the
swimmin5 pool area.
27. >t was also in 2005 that 8r and 8rs 8ackay at least provisionally selected the 3merican
:lack 'alnut wood to .orm the .loorin5 and veneer .or much o. the joinery in Gnit "1 in
particular in relation to the cup#oards and the skirtin5s. :y De#ruary 20071 the 8ackays had
chosen a 4anish Fil .inish .or the 3:'. Durther visits were #ein5 arran5ed in 8arch 2007
however to or5anise =another veneer selection process= as re.erred to in an e,mail dated 7
8arch 2007 .rom 3dams /oinery. *his occurred when 8rs 8ackay visited the workshop o.
a company called -eliance Neneers1 who were to #e the suppliers to 3dams /oinery which
was to #e the su#,contractorH 8r (awks o. 3dams /oinery attended #ut '2" did not. *his
meetin5 was not to select 3:' as such1 #ecause that decision had already #een made1 #ut to
pick an actual piece o. 3:' .rom which the veneer would #e sliced.
27. 3t the end o. 0eptem#er 20051 delay o. some 17 weeks was #ein5 reported. !otwithstandin5
this1 02' reported to 8r 8ackay that there was 5oodwill on the part o. '2"1 al#eit it
acknowled5ed that there had #een su#stantial delays caused #y late and un,coordinated
in.ormation .rom the desi5n team which was =a direct conse?uence o. placin5 a main
contract with $'2"% to secure plannin5 consent .or the scheme in early 2004 and at the time
with incomplete desi5n in.ormation=.
2A. 3n issue had arisen #etween the parties as to where the risk lay in relation to delay
attri#uta#le to the issuin5 o. provisional sum instructions with '2" ar5uin5 that1 as the
provisional sums were unde.ined1 all pro5ramme risk was with 48'H thus1 i. a su#,
contractor whose en5a5ement was instructed #y way o. a provisional sum instruction .ailed
to .inish within the time otherwise reasona#ly allocated #y '2" to such work '2" was
entitled to an e9tension .or overall delay caused #y this as the delay would have arisen
simply as a result o. compliance with the instruction in ?uestion. 48'@s lawyers advised it
that this was wron5 as did :243. 02' appear to have disa5reed with this .or reasons set
out in its letter to 8r 8ackay o. 5 Fcto#er 2005H their view was that the pro#lems and
delays on the jo# could #e traced #ack to the lettin5 o. the "ontract at a time when there was
incomplete desi5n in.ormation. >t advised that the desi5n must #e .roKen to prevent any
.urther e9tensions o. time. >t e9plained that it was tryin5 to mana5e the Jdynamic processI
o. desi5n1 in.ormation provision and construction #ut it was Jdi..icultI.
26. Fn A and 2A !ovem#er 20051 '2" su#mitted .urther e9tension o. time noti.ications
)electrical in.ormation and joinery+. 3 total e9tension o. time o. over 16 weeks was
indicated1 with much o. the later delay said to #e attri#uta#le to the non,receipt o.
instructions .or the commencement o. joinery production #y 3dams /oinery.
30. :y late !ovem#er 20051 it had #e5un to #e clear that the 8ackays wanted the #ookshelves
in the 2i#rary covered with leather with decorative stitchin5. *he :243 =&lemental
4escription 0cheduleI dated 17 !ovem#er 2005 indicates that the .inish and material would
have to #e con.irmed. Fn 24 !ovem#er 20051 '2" su#mitted revised loss and e9pense
assessments in relation to a num#er o. their earlier e9tension o. time claims.
31. :y /anuary 20071 the delays had worsened. Fn 7 /anuary 20071 '2" reported in its
;ro5ress -eport that an e9tension o. time o. 27 weeks and three days was re?uested1
recordin5 only that an e9tension o. time o. .our weeks had #een awarded. >t was noted that
the mechanical and electrical services su#contractor1 !orstead1 was si5ni.icantly #ehind
pro5ramme with the electrical works as a result o. late and incomplete in.ormation .rom the
desi5n team whilst the procurement o. .inishin5 trades remained seriously #ehind
pro5ramme. Fn 2 De#ruary 20071 :243 issued the ;lasterin5 0peci.ication1 which was in
2007 to 5ive rise to disputes a#out the re?uired standards .or plasterin5. Fn the same date1 it
also issued an instruction )3> 20A"+ to '2" in relation to the 2i5ht 'all in a sum just
#elow B1001000. 3 whole series o. .urther 3rchitect@s instructions .ollowed within a .ew
days relatin5 to additional and altered work .or 3dams /oinery.
32. :y early /anuary 20071 8r 8ackay was considerin5 omittin5 a su#stantial amount o. the
.inishin5 and e9ternal works .rom 48'@s contract with '2". Fn 7 /anuary 20071 :243
sou5ht instructions .rom him to that e..ect.
33. "learly tensions were risin5 within 48'. *here was a dispute #etween 8r 'est and 8r
8ackay a#out the costs o. movin5 the electricity su#,station .rom Gnit 3 to Gnit ". 8r
8ackay re.erred to 8rs 'est as =avaricious and jealousI and as needin5 a J.RRRin5 5ood
slappin5=. *he very clear in.erence .rom this and what had 5one #e.ore is that 8r 8ackay
#elieved that he was spendin5 .ar too much on the construction works and that he had #een
misled a#out likely costs. >n an e,mail e9chan5e on 2A De#ruary 20071 8r 8ackay said that
the project =has turned into a .iasco where we all look like complete idiots una#le to listen to
or act on reason=. :y 17 3pril 20071 8r 8ackay was tellin5 his architect and ?uantity
surveyor that =a lot o. people are late on this project due to no .ault o. mine andPthe costs
are #ein5 passed on to me with no re5ard to my approval or interests=H C<* were appearin5
=to just act as a hi5h,priced mail #o9 in this whole a..airI and their per.ormance was =at #est
piti.ul=.
34. :y 3 8arch 20071 '2" was reportin5 that1 althou5h 20 weeks e9tension o. time had #een
awarded1 over 27 weeks overall delay had occurred .or which an e9tension o. time should #e
5ranted. 4elayed procurement o. .inishin5 trades issues1 the late resolution o. the su#,station
issue1 late chan5es and alterations to installed work1 late details relatin5 to the 2i5ht 'all
and late .inalisation o. the veneer were hi5hli5hted as the more recent primary pro#lems. >n
late 8arch and early 3pril 20071 .urther e9tension o. time noti.ications were dispatched #y
'2" to :243 relatin5 to additional works .or joinery and to pro#lems relatin5 to the
movin5 o. the su#,station and additional work relatin5 to pre,cast concrete .eatures. :y late
3pril 20071 a total e9tension o. time o. 33 weeks with costs was #ein5 re?uested. :y /une
20071 the parties were anticipatin5 completion o. the 'orks on 2A !ovem#er 20071 with
over 37 weeks reported delay. 3t a site meetin5 held on A /une 20071 it was reco5nised #y
48'@s 4esi5n *eam Jthat coordinated desi5n in.ormation remains to #e 5iven to $'2"%
and si5ni.icant num#ers o. ?ueries 5enerated #y $'2"% remain to #e answeredPI. :y the
end o. /une 2007 '2" was reportin5 an e9tension o. time o. 37 weeks and 2 days1 that
3dams /oinery was runnin5 .ive weeks late due to late instructions and in.ormation and that
they were awaitin5 instructions to proceed with the leather .inishes1 includin5 to the 2i#rary.
*here had #een a ?uote which included the leather #ut it was thou5ht to #e too costly and
3dams was asked to ?uote .or savin5s to #e made.
35. 3s is common 5round1 C<* produced re5ular cost reports. *heir 8ay 2007 report identi.ied
an increase in the #ud5et o. B300 per s?uare .oot to B570 per s?uare .oot. *he cost had #een
estimated ori5inally at just over B5.5 million #ut #y 8ay 2007 it was estimated at just a#ove
B6.375 million. *he principal chan5es .rom the early days were listed with costin5s
e9plainin5 various increases.
37. :243 wrote to 48'@s solicitors on 21 /une 2007 identi.yin5 that 16 weeks and .our days
e9tension o. time had #een 5ranted #ut that .urther e9tensions would pro#a#ly #e due.
37. 0ome insi5ht is 5iven as to the perceptions on the 48' side in an attendance note o. a
meetin5 attended #y its solicitors1 8anches1 on 26 /une 2007:
J*he view o. $:243% was that the main causes o. delay to date were late instructions
and desi5n in.ormationPthe splittin5 o. packa5es into a smaller packa5es1 poor
coordination o. services1 the li.ts and the su#station. $'2"% were also claimin5 time
and money due to there #ein5 only one staircase1 #ut two was included in the ori5inal
speci.ication1 which resulted in delay and disruption to the works owin5 to con5estion.
$:243% also said that another pro#lem was that $'2"% would not take on any desi5n
lia#ility and this was causin5 delayP*he #uildin5 contract was checked and it set out a
num#er o. packa5es that may #e $"ontractor 4esi5ned ;ortion% packa5es. "D $o.
:243% said that he thou5ht a list o. such packa5es had #een a5reed early onP/3 said
that no work had #een procured as a ";4 packa5e. $:243% con.irmed that the
mechanical and electrical services were .ully desi5ned #y "hapman :athurst.
P>t was also noted that $'2"% had not #een actin5 a55ressively in respect o. their
claim and that 5enerally $'2"% are keen to avoid disputesH that was one o. the reasons
they were selected .or this contract.=
*he correspondence overall supports the 5eneral truth o. these o#servations. Nery .ew o. the
e9tension o. time noti.ications were challen5ed #y :2431 al#eit :243 did occasionally do
so )such as on 1 /une 2007 in relation to ceilin5 details+. 3t this sta5e1 the causes o. delay
were primarily the late provision o. instructions and in.ormation to '2" and poor
coordination #y 48'@s 4esi5n *eam. *here had #een little or no complaint that '2" was
responsi#le .or any o. the overall delay. 4ocumentary evidence and indeed the evidence o.
'2"1 which > accept1 con.irms that virtually no work )the pilin5 packa5e #ein5 an
e9ception+ had #een procured #y the 4esi5n *eam as a "ontractor 4esi5ned ;ortion
packa5e. 'hat was not correct was the note that '2" was not prepared to take on any
desi5n lia#ility. *here had #een a num#er o. letters written #y it une?uivocally seekin5
clari.ication and instructions as to what desi5n responsi#ility it should take onH those letters
had #een studiously i5nored principally #y :243 and C<* .or no o#viously 5ood reason
other than they #elieved that the imposition o. desi5n responsi#ility on '2" carried with it
an additional .inancial #urden .or 48'. >t is clear that there was and continued to #e
serious ill .eelin5 #etween 48' and the 4esi5n *eam a#out the escalatin5 costs o. the
project.
3A. Fn 21 /uly 20071 '2" su#mitted an e9tension o. time noti.ication in relation to the
0tin5ray doors on the #asis that the timin5 o. architect@s instruction .or it would mean that
the doors could not #e completed until 11 4ecem#er 2007. '2"@s pro5ress report o. 24 /uly
2007 identi.ied that 45 weeks and .our days e9tension o. time had #een re?uested1 althou5h
at this sta5e only 20 weeks e9tension had #een 5ranted. 4elays associated with the 2i5ht
'all were noted as one o. the current delayin5 .actors. 'ithin several weeks1 a .urther
e9tension o. time o. seven weeks was 5ranted. Fn 22 3u5ust 20071 :243 reported to 8r
8ackay that '2" was predictin5 contract completion at mid,De#ruary 20071 this date #ein5
=5enerated #y the late delivery o. #espoke ironmon5ery1 the lon5 lead in time .or some door
.inishes and testin5 and commissionin5=. Dollowin5 .urther e9tension o. time noti.ications
in /uly and 3u5ust 20071 includin5 one on 25 3u5ust 2007 relatin5 to delays in relation to
decisions on leather selection1 '2" reported on 15 0eptem#er 2007 that a total e9tension o.
51 weeks was #ein5 re?uested with si5ni.icant delays #ein5 recorded a5ainst pool areas
5enerally1 li.ts1 stairs1 roo. li5hts1 doors and .rames1 courtyards 5enerally and e9ternal works.
36. *he :arrisol ceilin5s in the pool and cinema areas #e5an to emer5e as a pro#lem in
0eptem#er 2007 when :243 reported to 8r 8ackay that :arrisol would not start work
until 50L o. sums due to them were paid. *he 3rchitect@s instruction .or this had #een 5iven
on 24 3u5ust 2007 )3>347"+1 althou5h the ?uotation to which the instruction relates was
dated 7 Fcto#er 2005. 3 pro#lem arose in relation to 3dams /oinery who re?uired a 50L
deposit #e.ore the placin5 o. orders .or the leather and .a#ric which had #een apparently
.inally decided upon several weeks #e.ore.
40. :y late 0eptem#er 2007 the li.t sha.t had #een installed and :243 raised with '2"
concerns a#out the overall ?uality o. the li.t sha.t installation in a letter dated 2A 0eptem#er
2007 to '2". 3 certain amount o. remedial work was done to overcome at least a num#er
o. these concerns.
41. :y Fcto#er 20071 8r 8ackay had #ecome disillusioned with1 principally1 :243 and C<*H
cost had risen enormously and there was at least a year@s delayH he re.erred in an email dated
27 !ovem#er 2007 to his 4esi5n *eam to a dou#lin5 o. the #ud5et. (e retained well known
claims consultants1 Mnowles1 #y an a5reement dated 16 Fcto#er 2007 to provide nominally
=contractual and adjudication advice=. *his retainer was initially kept secret .rom :243 and
'2"1 al#eit that it was no lon5er secret #y early 2007. Mnowles@ personnel attended a site
visit on 1A Fcto#er 2007. >t is clear at this time that 8r 4aniel #elieved that the main person
at Mnowles1 8r -ains#erry1 was =very a55ressive and thinks we should 5o a.ter contractor
nowPthrou5h attack rather than ne5otiation=H he liked his approach and said that =all
contractors are dishonest so letQs nail the #astardsSI. 8r 8ackay evolved a strate5y .rom
a#out this time to pressurise the 4esi5n *eam and '2". Mnowles was initially asked to
carry out a critical path delay analysis .or all three houses. Fne o. the primary purposes o.
involvin5 Mnowles was or certainly #ecame watchin5 over :243 and C<* and in.luencin5
them as to how they should do their jo#s on this project. *his was an a55ressive move
a5ainst them. Fne .acet o. this was that :243 was disentitled .rom issuin5 instructions
without the approval o. 48' or 8r 8ackay. 3nother primary purpose #ecame the
development o. a strate5y to ensure that no .urther e9tensions o. time were 5ranted to '2"
and that .inancial constraints were imposed. *his strate5y #e5an to develop at least .rom
a#out early !ovem#er 2007 when 8essrs 8ackay1 'est and 4aniel met at a "lient 8eetin5
on 1 !ovem#er 2007 and mutually a5reed that a completion date should #e esta#lished with
no .urther e9tensions o. time to #e 5ranted past this date and that li?uidated dama5es were
imposed on '2" therea.ter. >n the case o. 8r 8ackay1 this involved an increasin5
determination that a lar5e amount o. work should #e omitted .rom the Gnit " "ontract to #e
per.ormed #y artists1 tradesmen and others directly retained #y him or possi#ly 48'1 with
'2" #ein5 le.t with such remainin5 works in respect o. which1 he anticipated1 '2" would
#e in culpa#le delay or other di..iculties. *he motive .or this #y in.erence was to land '2"
with a su#stantial li?uidated dama5es #urden. -2: was appointed as the project mana5er to
superintend the work to #e done outside the construction contracts. >t is also the case that 8r
8ackay as .rom this time #e5an to #e hi5hly critical o. the ?uality o. '2"@s work1 .or
instance in relation to the plasterin5 and the li.t.
42. :y 10 !ovem#er 20071 '2" was reportin5 that 35 weeks and two days e9tension o. time
had #een 5ranted #ut that a total e9tension o. 51 weeks was #ein5 sou5ht. ;ro#lems with
delayed instructions .rom :243 relatin5 to the precise scope o. e9ternal works had #een
e9perienced1 '2" indicated #y e,mail on 10 !ovem#er 2007 that it would commence such
works in 5ood .aith and raise a written con.irmation o. ver#al instruction in respect thereo..
3lthou5h '2" was hopin5 that the Gnit " work could #e completed #y the end o. De#ruary
20071 pro#lems with the 2i5ht 'all continued throu5hout !ovem#er and 4ecem#er 20071
which included #reaka5es o. 5lass due to inade?uate structural stren5th as well as uneven
li5ht distri#ution )scallopin5+ within the 2i5ht 'all. Durther e9tension o. time noti.ications
were issued #y '2"1 includin5 one on 14 4ecem#er 2007 relatin5 to the 2i5ht 'all and
another on 11 /anuary 2007 relatin5 to pro#lems associated with the e9ternal works.
43. :y the end o. 20071 althou5h much o. the procurement had #een .inalised1 much o. the
.inishin5 works were su#stantially incomplete. 3n e9ample was that the e9tensive leather
work in the 2i#rary in the #asement had still not #een .inalised1 either in terms o. the type o.
leather or the stitchin5 which was to #e used. *he 2i5ht 'all was under5oin5 su#stantial
pro#lems which were to continue throu5hout 2007 and into 200A. :oth '2" and 02'
#elieved that the 2i5ht 'all would not #e complete #y the end o. De#ruary 2007. :y 16
/anuary 20071 '2" was reportin5 that1 althou5h an e9tension o. time o. 47 weeks and 4
days )up to 2 De#ruary 2007+ had just #een 5ranted #y :2431 various works includin5 the
2i5ht 'all and the 2eather in the 2i#rary alon5 with a num#er o. items o. work which
remained to #e instructed remained to #e completed. 0u#ject to the items listed1 '2" was
reportin5 that works would #e complete #y the end o. /anuary 2007. 3n e9tension o. 5A
weeks was claimed. :y 7 De#ruary 20071 '2" was reportin5 that .inal sna55in5 to Gnit "
could commence as soon as possi#le1 al#eit with the 2i5ht 'all and 2eather in the 2i#rary
#ein5 still outstandin5. 3t a client meetin5 on 27 /anuary 2007 with :243 and 02'1 8r
8ackay accused :243 o. #ein5 complicit in the e9tensions o. time 5ranted on the #asis
that they masked :243@s delays in issuin5 in.ormation. >t was said at this meetin5 that
'2" was predictin5 that work would #e completed #y the end o. /anuary e9cept .or a
num#er o. items. *here was talk a#out '2" providin5 a schedule o. areas ready .or
sna55in5 and it was resolved that the sna55in5 process would #e carried out #y a senior
architect and team .rom :243. Fn 26 /anuary 20071 :2431 clearly under pressure .rom its
client1 wrote no less than 15 letters to '2". Fn 2 De#ruary 20071 :243 issued instructions
to '2" to omit almost all the hard landscapin5 in relation to ;lot "1 as well as various other
works and items such as the supply o. door ironmon5ery.
44. Fn 2 De#ruary 20071 :243 issued what turned out to #e its last e9tension o. time1
e9tendin5 time .or ;lot " until 17 De#ruary 2007H this .inal e9tension related to the delayed
installation o. the three 5as supplies .or each o. the plots with work #ein5 .inished #y the
statutory undertaker only on 17 /anuary 2007.
45. Fn 2 De#ruary 20071 :243 certi.ied ;ractical "ompletion in respect o. Gnit 3.
47. 3t a site meetin5 on 7 De#ruary 20071 '2" reported that everythin5 which it had
=pro5rammed to #e completed #y the end o. /anuary is lar5ely complete= althou5h there
were still items outstandin5. :243 and 8r /oyce o. '2" had discussed sna55in5 to ;lot "
and a5reed that =it must commence as soon as possi#le=. 8r /oyce said that it would have to
take place =elementally #ecause there are un.inished and late items in most rooms=. *he
2eather in the 2i#rary was identi.ied as a potential pro#lem area #ecause '2" and 3dams
/oinery were =waitin5 .or con.irmation on the leather stitchin5=H 3dams /oinery had
presented 10 samples o. stitchin5 and :ev )not in attendance+ was e9pected to con.irm a
sample later that day. *his was said to #e =ur5ent as it a..ects installation o. the 2i#rary
joinery1 the door and the lar5e panels o. the 2ower (all= with 8r /oyce statin5 that =none o.
the 2i#rary joinery can #e .i9ed #ecause it is dependent on the upper sections #ein5 covered
in leather .irst and these are in a#eyance until the leather stitchin5 has #een a5reed=. 8r
8ackay sent three pa5es o. comments on these minutes1 althou5h he had not #een in
attendanceH he said amon5st other thin5s that when he and his wi.e visited the site on 10
De#ruary 2007 =the house was a complete mess= and =nowhere near complete=H he identi.ied
that the =plasterwork in every area is de.ective .or a jo# o. this ?uality and =price=.I
47. Fn A De#ruary 20071 8r /oyce wrote to :243 sayin5 that '2" wished =to o..er ;lot " as
#ein5 practically complete on 17
th
De#ruary and would re?uest that we arran5e an
inspection .or 8onday 16
th
De#ruaryPI. (e wished to =undertake an elemental sna55in5
process to e9pedite the completion process and con.irmed that this will commence1 in
conjunction with you1 in the week commencin5 12
th
De#ruary 2007=.
4A. Fn 6 De#ruary 20071 8r 8ackay wrote an e,mail complainin5 that there was no point
sna55in5 #ecause he .elt that every room in the house contained de.ective plasterin5 which
as he saw it on walls was not .lat and the corners and an5les were not strai5ht. (e had
complained a#out this to some e9tent also in late !ovem#er 2007. *his 5ave rise to an
e9tensive e9chan5e over the .ollowin5 .ew months a#out the e9tent to which1 i. at all1 '2"
was lia#le .or this. *his is addressed in the plasterin5 section o. this jud5ment.
46. Fn 17 De#ruary 20071 '2" reported that a 70 week e9tension o. time had #een claimed .or
and that there continued to #e si5ni.icant delays in the pool areas 5enerally1 the li.ts1 doors
and .rames1 li#rary shelvin5 and joinery1 courtyards and e9ternal works. 8r 8ackay e,
mailed :243 on the same day sayin5 that he was not prepared to allow it to certi.y
;ractical "ompletion =i. there are any patent de.ects or incomplete works outstandin5=.
;ro#lems continued with the 2i5ht 'all and '2" was told to stop work on the pool screens
pendin5 .urther desi5n developmentH this was recorded in a letter dated 16 De#ruary 2007
.rom '2" to :243 and con.irmed at a site meetin5 held on 20 De#ruary 2007. Fn 16
De#ruary 20071 8r /oyce identi.ied this pro#lem as likely to impact on the completion date.
50. Fn 1A De#ruary 20071 8rs 8ackay e,mailed :243 with a lon5 list o. complaints1 includin5
the need .or =#allet #arsI in the 5ym1 the ?uality o. the .inish in the childrenQs #athrooms
#ein5 =a dis5raceI and Jthe #athsI #ein5 Jdisproportionately small and narrow1 seemin5ly
without reason and FD ;230*>"SI *he 0ite was said to #e =a complete mess a5ain= and
another disaster was =the specially desi5ned li.t=.
51. Fn 23 De#ruary 20071 :243 wrote to '2" sayin5 that they were preparin5 a schedule o.
outstandin5 items which would need completion #e.ore a ;ractical "ompletion certi.icate
could #e issued and that =other 'orks have not #een completed #y the "ompletion 4ate o.
17
th
De#ruary 2007=. >t sou5ht various particulars previously re?uested to allow it to review
previous decisions and other -elevant &vents .or the purposes o. e9tensions o. time. :243
did produce a preliminary sna55in5 list on that date.
52. Fn 27 De#ruary 20071 '2" e,mailed :243 to the e..ect that in relation to the leather work1
primarily in the 2i#rary1 3dams /oinery would need #etween 17 to 16 weeks .rom receipt o.
a 50L deposit to procure and install such work. 3dams /oinery@s prices were provided. Fn
the same date1 8r 8ackay indicated that he intended to withhold li?uidated dama5es in
e..ect as .rom 17 De#ruary 2007. 3s at 2A De#ruary 20071 :243 had certi.ied that the works
had a 5ross value o. BA15421457.
53. >n summary and #y the end o. De#ruary 20071 e9tensions o. time had #een 5ranted up to 17
De#ruary 2007. 'hilst lar5e parts o. the 'orks were su#stantially completed1 the main
relevant areas o. work which remained to #e completed were the 2i5ht 'all in the
swimmin5 pool area1 the :arrisol ceilin5s and the li5htin5 arran5ements a#ove them1 the
2i#rary shelvin5 )primarily concerned with the associated leather work+1 the courtyard
works1 sna55in5 .or .inal handover1 remedial works to plasterin5 and resolution o.
outstandin5 complaints in relation to the li.t. *hese will #e addressed in detail separately
herea.ter.
54. Drom late De#ruary 20071 8r and 8rs 8ackay and the 4esi5n *eam instituted what #ecame
known as =client walk around= meetin5s1 usually #ut not always attended #y '2"
representatives. ;rior to this time1 liaison #etween the 4esi5n *eam and the 8ackays was
much more on an ad hoc #asis.
55. *hat Mnowles was playin5 an active and determinative role on #ehal. o. 8r 8ackay is clear
.rom a letter which it wrote to '2" on 7 8arch 2007 makin5 it clear that 48' would
withhold some B5501000 in relation to what was said to #e de.ective workH this primarily
related to alle5edly de.ective plaster1 de.ective li.t sha.t1 de.ective ceilin5 and the 2i5ht
'all. >t is unclear what1 i. any1 analysis Mnowles had undertaken in relation to responsi#ility
.or these alle5ed de.ects. *he involvement o. Mnowles caused some administrative
con.usion and in conse?uence '2" liaised with :243 on Mnowles@s letter ).or instance on
15 8arch 2007+ #ut also delivered a detailed riposte to it on 30 8arch 2007. Mnowles was
to write direct to '2" on a num#er o. occasions1 .or instance on 26 8arch 2007 a5ain in
relation to alle5ed de.ects. *he introduction o. Mnowles was certainly to raise the
temperature and did little to en5ender any .eelin5s o. trust and co,operation #etween
employer and contractor. Fn 7 8arch 2007 also :243 sent a list o. what was said to #e
unaccepta#le areas o. plaster throu5hout the #uildin5 #ased on a =preliminary spot survey o.
walls=.
57. *here still remained dou#t as to whether the leather work in the 2i#rary was or was not
5oin5 to #e omitted and 8r 8c8orrow o. '2" e,mailed 8r "ane o. C<* on 7 8arch
2007 askin5 whether the work was =to #e in contract or out o. contract=1 emphasisin5 that it
would take until /uly .or this work to #e completed. *his e,mail was passed onto 8r
8ackay who e,mailed #ack later that evenin5 sayin5 that the work was =in the contract T
you@re all very late , so > would 5et on with it i. > were youSSSSS :e advised everythin5 stays
in the contract where '2 are lateI. *his hi5hli5hts part o. what 8r 8ackay@s strate5y was
#ecomin5: it included the desire not to omit .rom the scope o. '2"@s work all those items
o. work which 8r 8ackay1 ri5htly or wron5ly1 re5arded as the .ault1 risk or responsi#ility o.
'2"H the advanta5e1 dou#tless as he saw it1 was that he would #e a#le to e9tract the
su#stantial li?uidated dama5es a5reed upon within the "ontract. >n mid,8arch 20071 8r
8ackay seriously considered that in the li5ht o. the reported de.ects on the li.t and li.t sha.t
a new li.t sha.t should #e put in. '2" was on 20 8arch 2007 to estimate that this would
take #etween si9 and nine months. (e was however #ein5 told #y :243 ).or instance at a
meetin5 held on 7 8arch 2007+ that the plasterin5 was 5enerally in accordance with the
speci.ication.
57. Fn or a.ter 17 8arch 20071 #y memo )wron5ly dated 14 De#ruary 2007+1 :243 reported on
various =de.ects= in the li.t which included su55ested pro#lems with the verticality1
ali5nment1 distortion o. 5laKin51 sealant1 scratches and other de.ects. *hrou5hout 8arch
20071 3dams /oinery was applyin5 the a5reed type o. oil )4anish Fil+ to the joinery1 such as
cup#oards and skirtin5s1 startin5 at the third .loor and movin5 down. 0ome o. the li.t de.ects
were #ein5 addressed #y '2" and its su#,contractor in 8arch 20071 includin5 the mastic
and the scratches to the 5lass.
5A. 3t a meetin5 held on 14 8arch 20071 8r 2loyd 4avis o. :243 e9pressed the view that he
had properly e9amined the plasterwork usin5 a strai5ht ed5e. >n #road terms1 the dispute
#etween the parties relatin5 to the plasterwork was one o. de5ree1 with '2" acceptin5 that
there were some areas o. plaster which were out o. speci.ication and 8r 8ackay sayin5 that
virtually all the plasterwork was de.ectiveH the ar5ument revolved around what the
contractual speci.ication called .or. *he Dederation o. ;lasterin5 and 4rywall "ontractors
was called in and reported in the third week o. 8arch that the standard achieved was =o. a
commercially accepta#le standard=. >n the result e9tensive remedial works were done over
the ne9t two or three months which satis.ied '2" and :243 #ut not 8r 8ackay.
56. Dor reasons which are unclear1 48' withheld payments due to :243 and in conse?uence
throu5hout most o. 8arch 2007 :243 lar5ely suspended its work on the project. >t was
only in late 8arch 2007 that 8r 8ackay procured payment to :243 with the result that
shortly therea.ter :243 did resume operations. :y early 3pril 20071 48' was retainin5
over hal. a million pounds .or alle5ed de.ects and delays. *his withholdin5 was initiated #y
Mnowles.
70. >n 3pril 2007 '2" su#mitted a detailed re?uest .or e9tension o. time in relation to
variations and late receipt o. instructions in relation to e9ternal works. *his su55ested that
there had #een and would #e an overall delay o. some 71 weeks and that the earliest contract
completion date in conse?uence would #e 20 /uly 2007. 3lso on 1A 3pril 20071 '2"
su#mitted to :243 a .urther e9tension o. time noti.ication relatin5 to the 2i5ht 'all which
continued to 5ive rise to pro#lems includin5 at this time removal o. the 5lass units .rom site
.or .urther work on them to #e done at the .actory.
71. >t was in the latter hal. o. 3pril 20071 as protective coverin5s #e5an to #e removed1 that a
pro#lem was #e5innin5 to #e perceived to e9ist in the 3:'. >t was re.erred to at a walk
around meetin5 on 23 3pril 2007. ;ro#lems with the li.t were #ein5 addressed #y this sta5e
with #oth 5laKed panels havin5 #een replaced and scratches havin5 #een polished out. *he
leather .or the 2i#rary remained unresolved and there were technical di..iculties identi.ied in
this achievin5 a .inish and look which the 8ackays wanted. *he 0tin5ray doors remained
unresolved and no order had yet #een placed .or the door panels and the ironmon5ery .or the
doors1 to #e supplied #y 48'1 had not yet #een supplied.
72. *he position in relation to the li.t was that1 whilst there were a variety o. items which
remained in dispute1 '2" remedied many o. the other thin5s complained a#out.
!otwithstandin5 this1 48' retained over B1301000 in relation to the li.t.
73. Drom a#out 8ay 20071 i. not earlier1 the artists and tradesmen directly employed #y 8r and
8rs 8ackay #e5an to come to site. 'hile there is no evidence that this caused particular
pro#lems in that year1 #y 200A there were su#stantial num#ers o. such people at the site.
74. *he pro#lems associated with leather and stitchin5 approval and selection were not resolved
until towards the end o. 8ay 2007 and 3dams /oinery@s pro5ramme .rom approval would
#rin5 a#out completion in early 0eptem#er 2007. ;ro#lems were also emer5in5 in the
swimmin5 pool and cinema ceilin5 areas to #e covered #y the :arrisol .a#ricH what was
.eared #y &?uation was that the li5htin5 would not #e su..iciently di..used. *hese pro#lems
were re.erred to in e,mails and1 .or instance1 at the client walk around meetin5 o. 7 /une
2007. 3t that meetin5 8r 8ackay reported that the complaint a#out the verticality o. the li.t
sha.t was e..ectively un.ounded #ecause it was as the minutes said1 =.ound to #e within
tolerance=.
75. *he main pro#lem with the 3:' #e5an to emer5e in late /une 2007 when 8rs 8ackay
recorded in an e,mail to :243 on 25 /une 2007 that =walnut veneer cup#oards in my
studyPhave 5one very yellow toned over the last .ew weeks=. *o this1 8s (ammond
:243 replied on the same day that the =veneer will chan5e in colour as it a5es and is
e9posed to li5ht.I 0tainin5 was su55ested and she su55ested that 8rs 8ackay should =see
the colour chan5e in the hardwood in my parents@ house thanks to the 3ustralian sunS=
*ensions were risin5 with 8rs 8ackay replyin5 that she was not =particularly interested in
your parents@ e9perience= and complainin5 that it was .or the clients to spot pro#lems.
77. 3t the walk around meetin5s in /uly 2007 attended #y the clients1 :2431 '2"1 :ev and
&?uation1 pro#lems with the 2i5ht 'all1 the :arrisol ceilin5s )and the related li5htin5+ the
li.t and the 3:' were hi5hli5hted. *he 8ackays complained that they had not #een warned
that the colour o. walnut would chan5e in dayli5ht. *here was a de#ate at around this time
#etween Mnowles and '2" a#out the need .or pro5rammes. *hese had #een provided over
the .irst 30 months o. the project and Mnowles had complained a#out the a#sence o.
pro5rammes. '2" wrote on 5 /uly 2007 sayin5 that the circumstances were such that it was
impossi#le properly to pro5ramme the works and .orecast the completion o. the worksH the
letter su55ested that there were still si5ni.icant outstandin5 in.ormation and instructions and
that the activities and pro5ress o. directly employed artists and tradesmen was makin5 it
di..icult to pro5ress and complete. *he de#ate continued in a somewhat a#ortive .ashion.
77. :y this time the relationship #etween 8r 8ackay and :243 was close to #reakin5 point
with 8r 8ackay #lamin5 his architects .or de.ective desi5ns1 actin5 unpro.essionally1
#lamin5 the client .or =everythin5= and delay. "omplaints were made that minutes prepared
#y :243 were a work o. J.ictionI and that their #ehaviour in relation to issues and de.ects
was =nothin5 short o. scandalous=. Mnowles wrote on 23 /uly 2007 on instructions .rom 8r
8ackay to :243 instructin5 them not to issue instructions to '2" without Mnowles@
=written consent to the issue o. each and every >nstruction=. 8r 8ackay does not appear to
have #een advised that this was not justi.ied under the construction contract and that1 i.
implemented1 could well result in yet .urther delays in the issue o. instructions and
in.ormation to '2"H this was copied to '2" who wrote on 27 /uly 2007 to Mnowles
complainin5 that this was not only invalid #ut also a repudiatory #reach #y 48'H '2"
complained that =the reality o. the situation is that the 3rchitect has ceased to #e an e..ective
3rchitect in this re5ard and has #een replaced #y Mnowles in all #ut name=. :y the end o.
/uly 2007 8r 8ackay had imposed a desi5n .reeKe in relation to the work in the #athrooms.
*his re.lected the .act that :243 was at the very least severely constrained not only #y the
increasin5ly personal and hostile criticism o..ered #ut also #y the close involvement o.
Mnowles in the runnin5 o. this project.
7A. :y this sta5e an adjudication had #een commenced #y '2" a5ainst 48' in relation to the
sum o. a#out B2001000 #ein5 withheld .rom certi.icates .or the li.t1 some .inishes and the
2i5ht 'all. Mnowles was retained in that conte9t #y 8r 8ackay and '2" had #rou5ht in
its own claim consultants1 :rewer. *he adjudicator issued his decision on 30 /uly 2007
.indin5 that1 althou5h there were some de.ects in the li.t1 only B301000 was a reasona#le
withholdin5 )as opposed to the B14A1000 actually retained+1 that there was no justi.ication
.or deductin5 anythin5 in relation to the 2i5ht 'all and that only B51000 could #e withheld
in respect o. the .inishes. >t could justly #e said that '2" was the su#stantial =winner=.
(owever1 the adjudication in so .ar as it related to the li.t led to a ne5otiation #etween '2"
and 48' where#y '2" undertook to carry out an over,claddin5 solution in e..ect to cover
up elements which were not accepta#le to the 8ackays. *his resulted in a proposal made #y
'2" on 13 0eptem#er 2007 where#y '2" o..ered to carry out work and waive any ri5ht
.or e9tension or delay related costs attri#uta#le to over,claddin5 work. *his was accepted #y
48' and the work was primarily done in Fcto#er 2007.
76. 0o .ar as 3:' was concerned1 in 3u5ust 2007 8r 8ackay was plannin5 to withhold money
.rom the ne9t payment1 in e..ect #lamin5 '2" .or what was said in an e,mail dated 10
3u5ust 2007 .rom -2: to :243 to #e =an unaccepta#le level o. variation #etween the
.loorin5 and .inished joinery= and =the overall colour o. the joinery is not the matt1 dark
.inish e9pected and a rather oran5e/5in5er tint=. 3s is clear .rom its reply1 :243 did not
consider that '2" was to #lame as the colour chan5e was inevita#le and mostly attri#uta#le
to the use o. an oil rather than a lac?uer .inish. >n early 0eptem#er :243 instructed '2" to
stain a door in the 5uest #edroom to see i. the 8ackays would accept it. *he story relatin5 to
the 3:' continued throu5h various meetin5s in 0eptem#er and Fcto#er 2007 and there is
no issue that '2" and 3dams /oinery stained virtually all the veneered 3:' throu5hout
the #uildin5H this caused 5reat consternation with the 8ackays. (owever1 '2" took the
stance that it had done what the 8ackays had asked and notwithstandin5 their complaints
and concerns it was not prepared to replace the veneered wood or re,stain it or otherwise
treat it a5ain.
70. *he leather work to the 2i#rary started in the third week in 3u5ust 2007 and was to run over
the .ollowin5 .ew weeks. *here were continuin5 pro#lems mostly with the li5htin5 a#ove
the :arrisol ceilin5s1 with 3rchitect@s >nstructions #ein5 issued in /uly and 3u5ust and into
Fcto#er 2007 makin5 alterations to the li5htin5 and li5htin5 patterns.
71. :y mid 0eptem#er 20071 the relationship #etween 8r 8ackay and :243 5ot even worse.
8r 8ackay accusin5 them o. =workin5 .ull,time .orI '2"1 dissem#lin5 and #ein5 Jtruly a
dis5race to your pro.ession= )in an e,mail dated 13 0eptem#er 2007+. Fn 16 0eptem#er
20071 he accused 8r 4avis o. :243 o. #ein5 =the most unpro.essional person= he had met1
that he was a charlatan and liar and that his head was =so .ar on the choppin5 #lock that it is
holdin5 on #y a thread=. ;art o. these complaints related to minutes or notes o. meetin5s
prepared #y :243 which 8r 8ackay #elieved were inaccurate1 either positively or #y way
o. omission. (e was there.ore particularly alive to those concerns. *hese types o. complaint
continued over the .ollowin5 .ew months. 3t a walk around meetin5 on 31 Fcto#er 20071
8r 8ackay re.erred to 8r 4avis as a =.RRRin5 ;ussyI and said that he =wakes up in the
mornin5 wantin5 to kill him=. 3t a similar meetin5 a week later he called 8r 4avis to his
.ace a =.RRRRR5 little twatI and said that =when this is .inished )the #uildin5+ > am not 5oin5
to rest until > have taken you out and > have 5ot the money to #e a#le to do it=. >n an e,mail
dated 16 !ovem#er 2007 8r 8ackay wrote to 8r 4avis sayin5: =Pyou lie1 you cheat1 you
cut corners1 you dissem#le , .rankly you would try the patience o. CodPUou have wrecked
what should have #een an amaKin5 e9perience #y your conduct , we are nearly at the sta5e
where > can sue you and .rankly > canQt waitSSSI 4urin5 a conversation with 8r 4avis on 1A
4ecem#er 20071 8r 8ackay said to him that he was =a joke=1 his =e,mails are .ull o. lies=
and that he was 5oin5 to =take you out. 'hen your ;> cover is used up >Qm 5oin5 to 5o .or
you individually. > have a E" just waitin5 to 5o. > spent B7501000 on MnowlesPI *here
were constant re.erences to :243 in 5eneral and 8r 4avis in particular representin5 the
contractorQs interests over his1 .or instance in an e,mail dated 10 !ovem#er 2007.
72. :y the end o. 0eptem#er 20071 the =strate5yI to deal with the project was #ein5 honed #y
Mnowles1 undou#tedly with the knowled5e and approval o. amon5st others 8r 8ackay.
Mnowles wrote to 48' on 27 0eptem#er 2007 in relation to Gnit ":
J'e would like to create a situation where#y direct work is not delayin5 $;ractical
"ompletion% T i.e. ;" is solely delayed #y '2@s works. '2 works can #e omitted to
achieve this i. possi#le.=
*he pro#lems relatin5 to the 3:' and the 2i5ht 'all were identi.ied as #ein5 attri#uta#le
to desi5n #reaches #y :243 and the pro#lems with the :arrisol ceilin5 as #ein5 caused #y
desi5n #reaches #y &?uation. Mnowles advised that it would #e =prudent to dismiss :243
on or a#out 27 Fcto#er=. ;art o. the strate5y included 8r 8ackay sendin5 a Mnowles
dra.ted letter instructin5 C<* to issue no .urther recommendations .or >nterim "erti.icates1
as was con.irmed #y C<* in its letter to '2"1 al#eit copied to a num#er o. other parties.
C<* clearly .elt very em#arrassed and apolo5ised to '2" as recorded in a '2" e,mail o.
2 Fcto#er 2007. *his course o. action was persisted in notwithstandin5 :243@s correct
advice .or instance on 16 Fcto#er 2007 to 8r 8ackay that it was inappropriate and a #reach
o. contract. Durther a55ressive inter.erence in the administration o. contract was the
direction .rom Mnowles to C<* )8r 'hid#orne+ that 3dams /oinery should not have any
preliminary costs on variations ordered a.ter the e9tended date .or completionH this was
con.irmed in an internal C<* e,mail dated 25 Fcto#er 2007H althou5h 8r 'hid#orne
thou5ht that this was wron5 and #iKarre1 he .ollowed this direction. Mnowles representatives
told 8r 8ackay that :243 was the worst architect whom they had ever come across )as
later re.erred to in an email o. a#out 4 De#ruary 200A+.
73. Fn 2A 0eptem#er 20071 :243 issued its ;ractical "ompletion certi.icate in relation to Gnit
:.
74. Durther pro#lems continued with the 2i5ht 'all throu5hout 0eptem#er and Fcto#er 2007
and1 .or instance1 on 5 Fcto#er 2007 '2" issued an e9tension noti.ication to :243.
75. :y !ovem#er 20071 the complaints a#out the 3:' as stained were continuin5 and '2"
secured a report .rom the respected *-343 or5anisation a#out the 3:' which in e..ect did
not criticise what 3dams /oinery and '2" had done. :243 clearly considered that the
3:' was in accordance with the contract1 .or instance as it said in its letter to Mnowles o.
24 4ecem#er 2007.
77. :y the end o. !ovem#er 20071 :243 produced a preliminary list o. outstandin5 items o.
work1 o. which major items were the 3:' issues1 the 0tin5ray door panels1 the 2i5ht 'all
and the :arrisol ceilin5s. *here were some .urther complaints a#out the plasterwork and in
early 4ecem#er 2007 '2" was addressin5 these.
77. :y late /anuary 200A1 '2" was identi.yin5 to :243 amon5st other thin5s that the :arrisol
ceilin5s and related li5htin5 were causin5 delay. *he 2i5ht 'all continued to 5ive rise to
pro#lems with the li5htin5 e..ects not #ein5 accepta#le to 8r and 8rs 8ackay.
7A. :y early De#ruary 200A i. not #e.ore1 8r 8ackay was #e5innin5 to .all out with Mnowles.
*here were unpaid #ills outstandin5 to Mnowles #ut 8r 8ackay sensed that Mnowles was
suspendin5 work pendin5 payment. >n an e,mail dated 2 De#ruary 200A to them1 he made it
clear that he did not like these tactics. (e .elt that he had spent over BA001000 on Mnowles
and that this =should have #een enou5h .or the .ee .or the whole action T '& have not really
even startedSSSI Mnowles@ services were to #e dispensed with #y 8r 8ackay within several
months. 3s indicated in an e,mail dated 22 /anuary 200A to 8r 'est and 8r 4aniel1 8r
8ackay re.erred to Mnowles in hi5hly dero5atory terms and as not providin5 value .or
moneyH 8r 8ackay later )on 12 De#ruary 200A+ re.erred to 8r *omlinson as a J.RRRRR5
wRRRRrI. >t is also clear that 8r 8ackay did not like some o. the advice which he was
receivin5 .rom Mnowles to the e..ect that 48' would have some lia#ility to '2" .or
delayH this is re.erred to in passin5 in 8r -ains#erry@s e,mail o. 4 De#ruary 200A to 8r
8ackay. 8eanwhile1 adjudication had #een initiated #y 48' in relation to the 3:' and
the well,known adjudicator 8r *ony :in5ham was appointed. Fn 21 8ay 200A in a very
short decision 8r :in5ham decided that '2" was in #reach o. contract in the supply o. the
ori5inal 3:'H he had not #een asked to consider the ?uestion o. the stainin5.
76. >t is clear that #y a#out De#ruary 200A the works were su#stantially completed with certain
e9ceptions. *hese included the 2i5ht 'all1 sna55in5 )namely .inal puttin5 ri5ht or
completin5 o. minor items+ and the outstandin5 3:' dispute. Fn 21 De#ruary 200A1 '2"
wrote to :243 sayin5 that1 once the 2i5ht 'all work and some .loor .inishin5 were done
#y 26 De#ruary 200A1 it considered that the 'orks would #e practically complete. 0o .ar as
the 3:' issue was concerned1 '2" reminded :243 in e..ect that the latter had accepted
the ?uality o. the veneers in terms o. material used and o. workmanship and there.ore this
should not delay the certi.ication o. ;ractical "ompletion. Mnowles wrote #ack on 22
De#ruary 200A threatenin5 the withholdin5 o. sums .or the 3:' and .or the 2i5ht 'all. 8r
8ackay wrote to :243 advisin5 it not to award practical completion.
A0. :y mid 8arch 200A1 48' had #e5un the process o. terminatin5 the employment o.
:243. 3s appears .rom an e,mail dated 4 De#ruary 200A .rom 8r -ains#erry o. Mnowles1
a primary e9planation at least .or the timin5 o. this termination was a very real .ear on the
part o. 8r 8ackay that :243 was a#out to issue a .urther e9tension o. time to '2". >t was
also 8r -ains#erry@s view that :243 was not in repudiatory #reach o. its contract and that
there.ore the contract could not #e terminated summarily. Fn 2A De#ruary 200A the .irst
warnin5 shot in this process was .ired #y 48' with a lon5 list o. complaints #ein5 listed.
:243@s response o. 13 8arch 200A was to deny all the alle5ations and complain a#out 8r
8ackay@s .re?uent inter.erence with the administration o. the project. 2ater that day1 the
employment was terminated and within a#out three weeks a new architect1 !avi5ant
"onsultin51 had #een #rou5ht in. Gnsurprisin5ly1 it took a not inconsidera#le time .or the
new architects to .ind out what the jo# was a#out and they were1 throu5h no .ault o. theirs1
not in a position readily to address re?uests .or e9tensions o. time and the like with any
promptness. (owever1 8r ;riestley o. !avi5ant very ?uickly took the view that the 3:'
workmanship was unaccepta#le as he con.irmed to 48'@s solicitor in an e,mail dated 17
3pril 200A. (e was also in 8ay 200A to .orm the view that the pro#lems with the 2i5ht 'all
were de.ects .or which '2" was responsi#le.
A1. :y 3pril 200A1 the .inal major pro#lem was emer5in5 and this related to the "ourtyard
0lidin5 doors which were .ound to #e catchin5 and di..icult to open. >nvesti5ations were
done which involved Dirman #ut ultimately '2" and Dirmans took the view that neither
was to #lame .or the pro#lem. '2" did call in e9perts on the topic. '2" attri#uted
responsi#ility to the desi5n .or which it said it had no lia#ility. !avi5ant called on '2" to
put the pro#lem ri5ht on 22 8ay 200A.
A2. Fn 23 8ay 200A1 '2" wrote to !avi5ant 5ivin5 a #rie. overview o. the current issues. >t
identi.ied the :arrisol ceilin5s and li5htin51 the 0tin5ray doors1 the 2i5ht 'all1 the 2eather
in the 2i#rary and the 3:'1 various li5htin5 issues in the 5round .loor cloakrooms and
directly employed artists and tradesmen as the primary causes o. delays since De#ruary
2007.
A3. Fn 27 8ay 200A .ollowin5 8r :in5ham@s adjudication decision on the su#ject1 !avi5ant
instructed '2" to put ri5ht the supposed 3:' de.ects .ailin5 which 48' could employ
others to do so. >n the result1 '2" did not do any .urther work on the 3:' and so it was
that 8r and 8rs 8ackay employed a separate company1 >nterior /oinery1 e..ectively to
remove much o. the e9istin5 stain and to stain it a5ain with an e?ually or pro#a#ly darker
stain than had #een done #y 3dams /oinery in 0eptem#er and Fcto#er 2007.
A4. *here is no real issue that durin5 this period #etween the #e5innin5 o. the year and a#out
3u5ust 200A there was a su#stantial presence at the site o. artists and tradesmen employed
directly #y 48' or 8r 8ackay and there was sna55in5 to do on the part o. '2" which to
a su#stantial de5ree was increased #y the need to put ri5ht work which had #een dama5ed or
a..ected #y their work. '2" complained a#out this in letters dated 1 and 2 /uly 200A to
!avi5ant. *here were also issues as #etween '2" and !avi5ant as to whether !avi5ant
was cooperatin5 e..ectively and promptly in the e9ercise o. sna55in5.
A5. :y the end o. /une 200A1 '2" complained to !avi5ant that their e9tension o. time
applications had not #een answered to a lar5e e9tent promptly or at all. *hey re.erred to the
.act that they had issued 234 e9tension o. time noti.ications o. which 167 remained
unanswered.
A7. Fn A /uly 200A1 !avi5ant warned '2" that it had seven days to put ri5ht the alle5ed
de.ects in the "ourtyard 0lidin5 doors .ailin5 which 48' could employ and pay others to
do the re?uisite work. Fn 10 /uly 200A '2" wrote to !avi5ant e..ectively challen5in5 any
su55estion that the works were de.ective and enclosin5 a report which they had
commissioned .rom the :uildin5 -esearch &sta#lishment which su55ested that the pro#lem
was one o. 3rchitect@s desi5n. >t asserted that this pro#lem should not hold up the issue o.
the ;ractical "ompletion "erti.icate.
A7. 8r 8ackay was not helpin5 to keep the temperature down and there was an e9chan5e o. e,
mails in /uly 200A #etween him and 8r (owie o. '2" who he had taken a5ainst. 'hilst
8r (owie@s limited responses were polite and restrained1 8r 8ackay@s remarks included:
JPyou have three major de.ects notices outstandin5P
Cuess what when > have .or5otten a#out you in a years time enjoyin5 my B100 million
home or sailin5 on one o. my 40 meter yachts T you@ll still #e tryin5 to wind up some
other poor unsuspectin5 customer with your #rand o. mediocrity , a sad loser , 5ainin5
your kicks and #ein5 irritatin5. 0u55est a new career as a tra..ic warden mi5ht #e ideal
at least it wouldnQt involve lyin5.
;s >Qm sure your #rokers arenQt interested in this. ;erhaps the press would #e thou5hP
Fh no1 little 5uy like you , throws his wei5ht around , #i5 chip on your shoulder , you
were de.initely #ullied at schoolSSSS
Por is it the .act that your little victorian 1A00 s? .t cotta5e in pul#orou5h can .it into
my dinin5 roomPFr perhaps the .act when you #ou5ht it in 2003 the cost was the same
as my de.ective veneer. >Qll #et you will lord it in the pu# over those nei5h#ours o. yours
in the cheap semi@s.
'hat is it that makes you so chippy little man.
'ell whatever it is youQre costin5 your company o. .ortune. > reckon around B1.5
million so .ar. 0ent a note to your #osses last ni5ht sayin5 your way isnQt workin5 and
askin5 when they mi5ht .ire youP.
UouQre such a loser. >Qm 5oin5 to enjoy .inishin5 you o.. over the summer. :ut donQt
worry youQll #e readin5 the contract >Qll #e on the #each.
P0emis was talkin5 a#out your nei5h#ours over the road not you ,sorry readin5 isnQt a
stron5 point .or youP
0orry a#out the pu# , you pro#a#ly #ored them into closin5 down too.
50 this year , midli.e crisis as well , nearest to a Derrari youQll ever 5et is a toy oneP
P'hat > .ind so di..icult a#out you and '2 is that you@re really in the crap. Uou donQt
do anythin5 a#out it apart .rom tryin5 to jam me the whole time. > really want you all
out o. my li.e , it has #een a sad chapter. > will not however allow you to continue to
take the pissP
8y middle name is relentless. > have the money and an5er at this point to push on and
make sure that you have to deliver or 5et punished .or not deliverin5. > donQt want to
have to .i5ht .or that1 #ut trust me > will !&N&- 5ive up i. you donQt start to chan5e
your attitude it will cost '2 time and money , it may eventually cost you your jo#. 'ho
knows. !ever underestimate me.
0o we can decide to have a chan5e o. attitude or we can continue like this > have three
counsel@s opinions that tell me >Qm in the ri5ht on the contract. >s this a risk you all want
to carry on with. Fver the summer > am away , unless we sorted out it will cost you
another B120k in 234@s. *hat will #e nearly B1.5 million.I
AA. Fn 17 /uly 200A1 !avi5ant emailed '2" to say that ;ractical "ompletion =should #e
5ranted .rom 7 /uly which implies .rom the very start o. the day=. *his was not to happen.
3t this sta5e in reality only the 2i5ht 'all and the "ourtyard 0lidin5 doors were holdin5
matters up. Fn 17 /uly 200A '2" wrote to !avi5ant re.errin5 to the .act that 48' had
#een installin5 so.t .urnishin5s1 .urniture and .i9tures and .ittin5s into the property and
su55estin5 that this was the clearest evidence that practical completion had in practice
already occurred. 8atters remained unresolved althou5h !avi5ant told '2" that it was
seekin5 instructions .rom its client where#y the contentious items could #e omitted so as to
ena#le ;ractical "ompletion to #e issued.
A6. Fn 13 3u5ust 200A1 !avi5ant issued the "erti.icate o. ;ractical "ompletion al#eit an
accompanyin5 note identi.ied that the 2i5ht 'all1 the 3:' and the "ourtyard 0lidin5 4oors
were removed .rom the "ontract. *here was a continuin5 de#ate in correspondence over
these three items into which it is unnecessary to delve #ecause they remained and remain
unresolved. !o remedial works were done to them apart .rom the >nterior /oinery work in
a#out /une 200A. Fn 27 3u5ust 200A1 C<* issued their Naluation !o 40 which identi.ied a
5ross sum due to '2" o. B611071430.43. *his was to .orm the #asis o. >nterim "erti.icate
!o 3A issued on 17 0eptem#er 200AH the product o. this was that there was said to #e a sum
paya#le #y '2" #y reason o. previous overpayments.
60. Durther claims .or e9tensions o. time were su#mitted and internally !avi5ant prepared a
report reviewin5 those claims. >t .ormed the view that some delays attracted e9tensions o.
time and others did not. (owever it was e?uivocal #ecause !avi5ant was not sure whether
'2" was responsi#le .or the desi5n o. the "ourtyard 0lidin5 doors and whether the 3:'
adjudication decision could or would #e success.ully challen5edH it identi.ied a num#er o.
relevant events which were at the risk o. 48'1 includin5 :arrisol and related li5htin51
0tin5ray doors and 2eather. >t did not seem to attach any importance to the 2i5ht 'all as a
cause o. delay.
61. ;art A proceedin5s were issued in the *"" )(*,0A,32A+ which challen5ed 8r :in5ham@s
decision. 8r /ustice "oulson decided that1 i. the only cause o. the .adin5 o. the wood was
natural li5ht1 then such condition on its own could not render '2" in #reach o. contract.
*here is no su55estion that this assertion is not e..ectively #indin5 on the parties as there
was no appeal.
62. !avi5ant was o#li5ed as 3rchitect to review e9tensions o. time within 12 weeks o. 13
3u5ust 200A #ut it did not do so.
63. Fver the .ollowin5 months 5oin5 into 2006 and 20101 there were discussions a#out .urther
sna5s and alle5ed de.ects and also e9tensive liaison and ne5otiation a#out the .inal
accountin5. !avi5ant@s services were dispensed with and a new architect1 8r 8ulhearn
#ecame involved on #ehal. o. 48'. Narious claims or updatin5 claims were su#mitted #y
su#,contractors to '2"H .or instance in /anuary 2010 3dams /oinery put in a su#stantial
claim .or loss1 e9pense and dama5es in relation to delay and disruption.
64. '2" issued the current proceedin5s on 31 8arch 2010 a5ainst 48'. 'hen servin5 its
4e.ence and "ounterclaim1 48' #rou5ht in as ;art 20 de.endants :2431 ":;1 C</ 0tone
2td )the interior desi5ner+ and &?uation 2i5htin5 e..ectively #lamin5 them .or many o. the
pro#lems relied upon #y '2" as havin5 delayed or disrupted it or otherwise caused it loss.
3.ter e9tensive procedural outin5s #e.ore this "ourt1 48' settled their di..erences with
those *hird ;arties.
A..e..'ent of !&tne..e.
65. > will .irst consider '2"@s .actual witnesses:
)a+ Craham "orless : he is and was a director o. '2" who 5ave evidence a#out initial
tenderin51 contract ne5otiations1 continuin5 hi5h level discussions durin5 the project and
certain aspects o. the loss claimed. > .ound him to #e a decent1 strai5ht.orward person
and a relia#le witness. (e answered ?uestions directly and to the point.
)#+ 0ean 8c8orrow : he was involved with this project .rom the start and has #een
involved in the collation o. the '2" claims. > .ormed the view that he was decent1
sensi#le and =on the #all=. (e was well researched and was very strai5ht in the 5ivin5 o.
his answers. (e seemed to #e thorou5hly relia#le and > have no di..iculty in .indin5 him
#elieva#le.
)c+ /ohn /oyce : he was the contract mana5eryed #y '2". 3lthou5h occasionally
unsettled #y the cross,e9amination1 mostly in relation to ?uestions a#out matters a#out
which he had no direct knowled5e1 he stood his 5round and was consistent in the 5ivin5
o. his evidence. (e seemed to #e a wholly 5enuine person and came over as a
conscientious man. 35ain1 > .ound him to #e wholly credi#le and relia#le.
)d+ /ohn (owie : he was the director #rou5ht in to the jo# at the time )early 2007+ when
it had #ecome irretrieva#ly o#vious that the project was 5oin5 #adly. (e was essentially
a trou#le,shooter whose jo# it was to 5et the 'orks completed. (e was not always
conciliatory and )with some justi.ication+ mistrusted particularly 8r 8ackay and his
motivation. (e did not 5et on well with the 8ackays1 althou5h > stron5ly suspect that1
#y the time that he came on the scene the relationship #etween them and '2" was
rocky at #est. (e was undou#tedly .aced with unpleasant ver#al a#use .rom 8r 8ackay
and > .ormed the view that1 althou5h he .ound it di..icult1 he retained a level o. restraint
and politeness which was not reciprocated. (e was sli5htly com#ative under cross,
e9amination and he was clear and emphatic in answerin5 what was o.ten stern cross,
e9amination. (e was well prepared and he came over as #elieva#le and1 as a witness1
relia#le.
67. >n relation to the 4e.endants@ witnesses:
)a+ Ciles 8ackay : he was the key .actual witness .or the 4e.endant and as much turns
on the e9tent to which1 on contested matters1 > accept his evidence1 > set out #elow my
impressions:
)i+ (e ?uali.ied initially as a #arrister in 16A4 #ut never practised. 0ince then1 he has
#ecome an e9tremely wealthy man1 now worth1 he said1 over B100 million. *he
#usiness1 which he has set up #y all accounts e9tremely success.ully1 is a .ocused
well .inanced property investment company1 run .rom o..ices in "helsea (ar#our. (e
is clearly an astute #ut very .orce.ul man. (e has #een and is o#viously very #usy
primarily at his #usiness #ut he enjoys sailin51 ownin5 several su#stantial yachtsH at
various1 possi#ly important sta5es1 he had to leave the country to participate in
sailin5 races or the like. > stron5ly .ormed the view that he is a person who is used to
5ettin5 his own way.
)ii+ >t is clear that1 althou5h he had passed the #ar .inals and had run .or some 20
years )#e.ore this development+ his su#stantial property investment #usiness1 he had
never e9perienced either #uildin5 contracts or direct involvement in construction
projects. (e unsurprisin5ly #elieved that his consultants1 and in particular his
architects1 should act only in his interests #ut he seems to have #een unaware
throu5hout most o. the project at least that1 #y a5reein5 to the standard /"* contract
terms1 he was leavin5 with the 3rchitect an independent .unction o. certi.yin5 sums
due and o. awardin51 when appropriate1 e9tensions o. time.
)iii+ (e is a person who1 virtually1 .rom the start o. the project up to this liti5ation1
considered and considers that it is appropriate to apply very su#stantial sums o.
money and whatever it takes to 5ettin5 what he #elieves he wants. (e has spent some
B17 , B1A million so .ar on the construction and1 he told me1 over B7 million on the
costs o. this case. (is introduction o. Mnowles1 as claims consultant1 at a total cost o.
some B6001000 .or 17 to 1A months work1 in e..ect mostly to keep an eye on the
other consultants and to dictate to them how they should do their jo#s is an e9ample.
0ave .or some o. their work in connection with the adjudications1 much o. this
e9penditure was su#stantially wasted.
)iv+ (e was and #ecame increasin5ly .rustrated as the project stum#led into
su#stantial delay1 risin5 costs and con.usion as to who was responsi#le .or what. >
.ind it di..icult to determine comprehensively whether it was the ori5inal architects1
or other consultants1 who were1 so to speak1 to #lame or whether they 5ave
appropriate advice at relevant sta5es to their client which was not .ollowed.
)v+ 'hatever the cause o. his increasin5 .rustration1 his #ehaviour towards the
3rchitects1 some '2" employees and other consultants was not simply coarse ).or
which he apolo5ised on a num#er o. occasions when 5ivin5 evidence+H it was
com#ative1 #ullyin5 and a55ressive and contri#uted very su#stantially to the
pro#lems on this project. (e was particularly critical o. the 3rchitectQs meetin5
minutes and1 althou5h on occasions he did point out to them criticism o. some o. the
minute takin5 )see .or e9ample emails dated 4 and 27 De#ruary1 A 8arch1 16 /uly
and 25 0eptem#er 2007+1 this was usually done in a very a55ressive wayH however1
.or some critical meetin5 minutes1 he did not come #ack to the 3rchitect.
)vi+ > have .ormed the view that he is and has #een .or a lon5 time an5ry. *his seems
to have started as 2007 went on and was ori5inally directed primarily a5ainst the
3rchitect. (e has sued many o. the parties involved in the development )the
3rchitect1 the 0ervices &n5ineer1 the li5htin5 consultants and the interior desi5ner+H
he has #een sued #y his second architect .or .ees1 #y Mnowles and #y several .irms
o. solicitors .or .ees also. (e has tried to wind up '2" )unsuccess.ully in the
summer o. 200A+1 he sou5ht throu5h his solicitors in mid,200A to su55est that '2"
had =ri55ed= su#,contract tenders )an alle5ation not pursued in these proceedin5s+1
he has set up a we#site to attract additional complaints a5ainst '2" and to pu#licise
complaints a5ainst '2" )J:eware o. 'alter 2illyI+ and has sou5ht to inter.ere with
an ac?uisition #y '2"@s parent company. 8uch o. his an5er has ori5inated in his
mountin5 .rustration when matters did not 5o as he had hoped.
)vii+ > .ound him to #e an unsatis.actory witness. Drom my o#servations1 > have
.ormed the view that he has lost nearly all sense o. o#jectivity in relation to this
development and > consider that he simply does not understand why1 5iven the
amount o. money which he has spent1 the house is not per.ect or e9actly as he and
his wi.e wanted. (is attitude has almost #ecome in the nature o. a vendetta a5ainst
'2". 3lthou5h > did not .ind him to #e dishonest1 he was at least careless with the
truth in a num#er o. respects. 3n e9ample was his *hird 'itness 0tatement in which
he stated that he #elieved that two representatives o. Mnowles were practisin5
#arristers or solicitorsH he must have known on any account that they were not
solicitors1 practisin5 or otherwise and1 havin5 taken the :ar e9ams himsel.1 must
have #een conscious #roadly o. what was re?uired to #e a practisin5 #arristerH there
was little i. anythin5 to su55est that they were practisin5 #arristers1 al#eit that they
too1 like him1 had passed the :ar e9ams. 3nother e9ample was his evidence in court
that shortly #e.ore :243 was dismissed he did not #elieve that :243 would 5rant
another e9tension o. time to '2"H that was directly countered #y contemporaneous
documents which showed that he clearly had this in mind. (is evidence that he could
not remem#er issuin5 a direction to C<* not to issue .urther valuation
recommendations was e9pressly countered #y the documentary evidence with which
he had personally #een involved at the time.
)viii+ (avin5 initially directed his ire a5ainst :2431 he turned his attention also to
'2". > .ound him a most unconvincin5 witness. (is o#jectivity havin5 5one1 > think
that he has now convinced himsel. o. the truth o. certain matters such as those
relatin5 to the 3:' issues such that1 althou5h he #elieves that he is ri5ht1 he is
o#viously not.
)#+ "aroline 8ackay : she is a person who clearly knew what she #elieved she wanted in
relation to this development. 0he had carried out e9tensive research #e.ore and even
durin5 the project as to what was re?uired .or the house. 0he was 5uileless and stood up
well to cross,e9amination. 0he was also upset in the latter 12 to 1A months o. the project
as de.ects and delays #e5an to emer5e. 0he was clearly particularly upset a#out the way
in which the 3:' was eventually le.t #y '2"1 as it was she who had chosen the
particular wood and1 as she saw it1 its appearance chan5ed .rom what in her mind@s eye
it should have #een. Gntil she told the "ourt at the end o. her evidence that she had a
law de5ree and had practised as a solicitor in two well,known 2ondon .irms .or some A
years1 it had not #een wholly o#vious that she was well ?uali.ied to deal with people and
#usiness a..airs in a #usinesslike .ashion. 0he was .rank and > had no reason to dou#t
her honesty.
)c+ Cavin :artlett : he was an assistant project mana5er employed #y -2: who were
appointed to oversee the construction works which were omitted .rom the "ontract
#etween 48' and '2". (e was #rou5ht in to replace a 8r :ardsley who had #een in
char5e o. this operation prior to 0eptem#er 2007. 3lthou5h he only worked on the
project .or 11 months and had no .urther contact until late 2011 .or the purposes o.
5ivin5 a witness statement1 he remem#ered what had happened at a key meetin5 in
0eptem#er 20071 the minutes o. which he must have seen at the time #ut did not
challen5eH his memory was that1 contrary to what the minutes said1 no 5eneral
instructions were 5iven to '2" to stain cup#oards and skirtin5s. > .ound him wholly
unconvincin5 in this conte9t not only #ecause he did not challen5e the minutes #ut
#ecause this work was not his area o. responsi#ility and he would have had no reason to
have any speci.ic memory a#out it.
)d+ 4avid "ane : > .ormed the view that he was reasona#ly strai5ht.orward and open in
the 5ivin5 o. his evidence. 0ome o. his recollection was .adedH .or instance1 he had
.or5otten that '2" had invited C<* to veri.y certain aspects o. the ?uantum.
)e+ -ichard 'hid#orne : he took over .rom 8r "ane as the actin5 ?uantity surveyor .or
the project in a#out 8arch 2007H he was e..ectively su#,contracted #y C<*. (is
evidence was lar5ely uncontroversial #ut .or instance1 he had .or5otten )and with it was
clearly a surprise even to him+ that he had #een directed #y Mnowles to do thin5s which
he did not a5ree with and which he almost at least accepted would have #een
unpro.essional. > was not impressed with his memory.
67. 0o .ar as the e9perts are concerned that my views are as .ollows.
6A. 3s .or the delay e9perts1 8r -o#inson and 4r 3ldrid5e1 > pre.erred 8r -o#inson in almost
every respect. (e1 #roadly1 lo5ically and conventionally1 adopted the approach o.
esta#lishin5 critical delay #y re.erence to the =lo5ical se?uence)s+ o. events which marked
the lon5est path throu5h the project=H 4r 3ldrid5e accepted that this was 5enerally the way
to calculate delay )this #ein5 taken .rom ;ara5raph 6.1.6 o. his /anuary 2012 report+. >n the
di..icult circumstances .acin5 #oth e9perts #y reason o. the a#sence o. any usa#le
contemporaneous pro5ramme .rom early 2007 onwards1 8r -o#inson adopted a much more
o#jective approach to his e9pert analysis whilst 4r 3ldrid5e proceeded on a much more
su#jective approach )which he accepted at least in part+. > ampli.y on this in the e9tension o.
time chapter in this jud5ment.
66. 4r 3ldrid5e@s report also in some respects almost reads simply as a su55estion to the "ourt
that the "laimant has not proved its caseH an e9ample is the openin5 words: J'alter 2illy@s
case does not stack up=H his report is littered with this type o. remark that '2" has .ailed to
prove or demonstrate this or that or to make out its caseH it is not .or an e9pert to su55est this
type o. thin5. (e proceeds on an o#vious lo5ical misapprehension that1 i. works are .inished
#e.ore ;ractical "ompletion1 they cannot have delayed completion. (is su55estion that
plasterin5 de.ects delays could realistically have contri#uted to the overall delay is simply
unsustaina#le in circumstances in which there was ultimately a limited amount o. remedial
work actually done and the remedial work was su#stantially completed #y 3pril 2007. (is
adoption o. an approach #ased on determinin5 the most =si5ni.icant= matters preventin5
practical completion led to him adoptin5 in many respects a su#jective approach as to what
his client thou5ht was si5ni.icant. *his approach was one which 8r -o#inson had never
seen used. (e .re?uently descended into the arena o. disputed .acts and lia#ilities in which
he was not the relevant e9pertH an e9ample was ;ara5raph 2.2.35 o. his /anuary 2012 report
when he .elt a#le to criticise ='2"@s unwillin5ness to accept that the colour variation )and
the very poor ?uality o. stainin5 which had made matters worse+ was an unaccepta#le de.ect
re?uirin5 recti.ication=. 0ome parts o. his report were #ased on conversations and
in.ormation which were not in evidence and on occasion he had to accept that he was 5iven
in.ormation #y 8r 8ackay and #y !avi5ant which was not contained or re.erred to in his
report. (e produced as 3ppendi9 4 a J'ei5hted 0i5ni.icance 8atri9I which was worthless
and sel.,.ul.illin5 when he on a lar5ely su#jective #asis awarded wei5htin5s to the various
possi#le causes o. delayH this was taken throu5h the project in 2007 and 200A on a monthly
#asis and1 unsurprisin5ly 5ave much hi5her wei5htin5s to the su#jectively accepted .actors
)such as plasterin5 de.ects+ selected #y him or his client as =si5ni.icant=.
100. 3s .or the 3rchitect &9perts1 > pre.erred the well researched1 very open and
pra5matic approach o. 8r Vom#ory 8oldovan1 '2"@s e9pert. (e was clear and positive
throu5hout. 8r /osey is an e9perienced e9pert and was open1 as one would e9pect1 with the
"ourt. (e has1 perhaps somewhat un.airly1 #een criticised #y '2"@s "ounsel .or havin5
#een instrumental prior to the 4e.ence and "ounterclaim in drawin5 up detailed lists o.
de.ectsH it was said that this was indiscriminate #ecause it did not identi.y what de.ects were
the .ault o. '2". 'hilst it is the case that initially very lar5e ?uantities o. de.ects and
amounts were counterclaimed a5ainst in respect o. de.ects )many o. which were later
dropped+1 > would not criticise 8r /osey .or thatH it would #e up to those advisin5 48'1
48' and 8r 8ackay himsel. to identi.y who had a contractual or le5al responsi#ility .or
the de.ects. (owever1 he did la#our under the disadvanta5e that he had to accept that a lar5e
num#er o. them could no lon5er #e pursued a5ainst '2"1 includin5 some which he had
himsel. supported. > would not criticise him #ut > .ound 8r Vom#ory 8oldovan much more
relia#le.
101. >n relation to the ?uantum e9perts1 #oth are e9perienced ?uantity surveyors with
e9perience o. liti5ation. > much pre.erred the approach o. 8r (unter which was pra5matic
and down to earth. > was disappointed with 8r ;ontin who1 althou5h an e9perienced e9pert1
> .elt was tryin5 too hard to reduce the delay and other ?uantum heads to an insi5ni.icant
level. 'hether he .elt1 su#consciously1 pressurised #y 8r 8ackay or not > can not say. :ut
his ar5uments were reduced to scrapin5 the #arrel in some respects such as su55estin5 that
'2" had not demonstrated any loss and e9pense attri#uta#le to ;lot " aloneH this was
a#surd #ecause it must .ollow that1 i. there was as here delay )almost 30 months delay+1
some time and resources must have #een incurred in conse?uence and that o#viously has a
cost. (e endorsed a totally arti.icial calculation to demonstrate that '2" had recovered all
its preliminaries costs on the three Gnits.
T1e Contr%6t
102. *he 35reement #etween 48' and '2" was contained in a memorandum dated 2A
8ay 2004. >t set out that the "onditions were to #e those contained in the /"* 0tandard
Dorm o. :uildin5 "ontract 166A &dition ;rivate 'ithout Euantities1 incorporatin5 various
speci.ic amendments1 as modi.ied #y the "ontractors 4esi5ned ;ortion 0upplement 'ithout
Euantities 166A edition )revised !ovem#er 2003+1 as amended #y the 0chedule o.
3mendments dated 27 8ay 2004 and the documents re.erred to therein. > will re.er to these
conditions as amended #elow. :243 was named as the 3rchitect and C<* was named as
the Euantity 0urveyor.
103. > will initially review the "ontract to consider to what e9tent '2" owed desi5n
responsi#ilities or otherwise how desi5n responsi#ility mi5ht pass to '2".
104. *he -ecitals1 as amended1 are o. some importance. *he Dirst -ecital made it clear
that 48' was desirous o. havin5 carried out =the construction o. three dwellin5 houses
with #asements and parkin5 .acilities with a private service road with access .rom :oltonQs
;lacePI. *he 0econd -ecital de.ined what is to #e the ="ontractors 4esi5ned ;ortion= as:
Jthe work re.erred to in the Dirst recital includes the construction o. certain works as
noti.ied #y the &mployer to the "ontractor in writin5=
105. *he *hird 0chedule was in the .ollowin5 terms:
J*he &mployer has caused the .ollowin5 documents to #e prepared1 sharin5 and
descri#in5 the work to #e done:
the "ontract 4rawin5s num#ered $sic% the drawin5s listed at 3ppendi9 3 o. the
3rchitectural 0peci.ication )to5ether with drawin5 num#er 0116 ;300 0ite 2ayoutPand
at 3ppendi9 3 o. the 0tructural 0ervice 0peci.icationP
and the .ollowin5 documents:
1. *he speci.ication dated 8arch 2004 re.erence 1A100P
3. *he *ender 0u#mission #y 'alter 2illy < "ompany 2imited dated 8arch 2004
re.erence 04023 $su#ject to some e9clusions and amendments%P
to5ether hereina.ter re.erred to as =the 0peci.ication/that 0chedule o. 'ork=
to5ether with other documents showin5 or descri#in5 or otherwise statin5 the
re?uirements o. the &mployer .or the desi5n and construction o. the "ontractor@s
4esi5ned ;ortion )hereina.ter re.erred to as the O &mployer@s -e?uirements@+=
107. 3rticle 1 stated:
JDor the consideration hereina.ter mentioned the "ontractor will upon and su#ject to the
"ontract 4ocumentsPcarry out and complete the 'orks shown upon1 descri#ed #y or
re.erred to in those 4ocuments and .or that purpose will complete such desi5n o. the
"ontractor@s 4esi5ned ;ortionP as may #e necessary in accordance with the directions
which the 3rchitectPshall 5ive .or the inte5ration o. the desi5n .or the "ontractor@s
4esi5ned ;ortion with the desi5n .or the 'orks as a whole su#ject to the provisions o.
clause 2.7.=
107. "lause 2 o. the "onditions contained the .ollowin5 terms:
=2.1.1 *he "ontractor shall upon and su#ject to the "onditions carry out and complete
the 'orks in compliance with the "ontract 4ocuments.
2.1.2 Dor the purposes o. so carryin5 out and completin5 the 'orks the "ontractor shall1
in accordance with the "ontract 4rawin5s and the 0peci.ication/0chedules o. 'orks
where and to the e9tent that the same are relevant1 complete the desi5n .or the
"ontractor@s 4esi5ned ;ortion includin5 the selection o. any speci.ications .or any
kinds and standards o. the materials and 5oods and workmanship to #e used in the
construction o. that ;ortion so .ar as not descri#ed or stated in the &mployer@s
-e?uirementsP1 and the "ontractor shall comply with the directions which the
3rchitectPshall 5ive .or the inte5ration o. the desi5n .or the "ontractor@s 4esi5ned
;ortion with the desi5n .or the 'orks as a whole1 su#ject to the provisions o. clause
2.AP
2.1.3 'here and to the e9tent that approval o. the ?uality o. materials or the standards
o. workmanship is a matter .or the opinion o. the 3rchitectPsuch ?uality and standards
shall #e to the reasona#le satis.action o. the 3rchitectPI
2.7.1 >nso.ar as the desi5n o. the "ontractor@s 4esi5ned ;ortion is comprised in the
"ontractor@s ;roposals and in what the "ontractor is to complete under clause 2.1.2 and
in accordance with the &mployer@s -e?uirements and the "onditions )includin5 any
.urther desi5n which has to #e carried out #y the "ontractor as a result o. a Nariation+
the "ontractor shall have in respect o. any de.ect or insu..iciency in such desi5n the like
lia#ility to the &mployer1 whether under statute or otherwise1 as would an architect or1 as
the case may #e1 other appropriate pro.essional desi5ner holdin5 himsel. out o. as
competent to take on work .or such desi5n who1 actin5 independently under a separate
contract with the &mployer1 had supplied such desi5n .or or in connection with works to
#e carried out in completed #y a #uildin5 contractor not #ein5 the supplier o. the desi5n.
2.10 3n e9tension o. time shall not #e 5iven under clause 25.31 and clauses 27.1 and
2A.2.2 shall not a..ect1 where and to the e9tent that the cause o. the pro5ress o. the
'orks havin5 #een delayed1 a..ected or suspended is:
2.10.1 any error1 diver5ence1 omission or discrepancy in the "ontractor@s ;roposalsP
2.10.2 .ailure #y the "ontractor to provide in due time necessary drawin5s1 details1
speci.ications1 calculation or in.ormation concernin5 the "ontractor@s 4esi5ned ;ortion
as re?uired #y clause 2.7.21 or
2.10.3 the 3rchitectPnot havin5 received in due time necessary drawin5s1 details1
speci.ications1 calculations or in.ormation concernin5 the "ontractor@s 4esi5ned ;ortion
.rom the "ontractor .or which he speci.ically applied in writin5PI
J&mployer@s -e?uirementsI were in the 0upplementary 3ppendi9 Jto #e a5reedI. *hese
documents would spell out what the &mployer re?uired the "ontractor to achieve throu5h
any desi5n process which was to #e assumed #y the "ontractor.
10A. ;rovision was made in "lause 4 where#y the "ontractor was re?uired to comply
with instructions issued to it #y the 3rchitect. "lause A.1 re?uired all materials and 5oods
#roadly to #e o. the speci.ied types and standards set out in the 0peci.ication and 0chedules
o. 'ork. "lause 13.1 entitled the 3rchitect to issue instructions re?uirin5 a Nariation to the
'orks1 #ein5 an =alteration to or modi.ication o. the &mployer@s -e?uirements=. "lause
13.3.1 re?uired the 3rchitect to =issue instructions in re5ard to the e9penditure o.
provisional sums included in the 0peci.ications/0chedules o. 'ork.= "lause 13.3.2 entitled
the 3rchitect to omit in whole or in part provisional sums .or internal .inishin5s1 .inishes
5enerally1 .ittin5s and .urnishin5s and landscapin5. "lause 13.4 provided .or the valuation o.
instructions re?uirin5 the e9penditure o. provisional sums either #y way o. an accepted
=;rice 0tatement= or under the provisions o. "lause 13.5. *hat latter su#,clause would value
such work as i. it was a variation.
106. >n reality1 all the su#stantive work set out in the 0peci.ication )that is1 apart .rom the
;reliminaries+ was simply identi.ied #y way o. provisional sums. *hus pilin5 was simply
identi.ied as =;ilin5 to ;erimeter= and a provisional sum o. B7001000 identi.ied. =Dinishes
Cenerally= attracted a provisional sum o. B115451000.
110. "lause 16 addressed su#,contractin5. -elevant provisions are:
J16.2.1 3 person to whom the "ontractor su#,lets any portion o. the 'orks is in this
"ontract re.erred to as a O4omestic 0u#,"ontractor@.
16.2.2 *he "ontractor shall not without the written consent o. the 3rchitect )which
consent shall not #e unreasona#ly delayed or withheld+ su#,let any portion o. the 'orks.
*he "ontractor shall remain wholly responsi#le .or carryin5 out and completin5 the
'orks in all respects in accordance with clause 2.1 notwithstandin5 the su#,lettin5 o.
any portion o. the 'orks.
16.2.3 *he "ontractor shall not without the written consent o. the 3rchitect )which
consent shall not #e unreasona#ly delayed or withheld+ su#,let the desi5n .or the
"ontractor@s 4esi5ned ;ortion o. the 'orks. 'here the &mployer consents to any such
su#,lettin5 such consent shall not a..ect in any way the o#li5ations o. the "ontractor
under clause 2.7 or any other provision o. this "ontract.
16.4.2.4 >n respect o. the 'orks to #e undertaken #y the 4omestic 0u#,"ontractor
pursuant to the su# contract )=the 0u#,"ontract 'orks=+1 inso.ar as the desi5n o. the
0u#,"ontract 'orks has #een or will #e carried out #y or on #ehal. o. the 4omestic
0u#,"ontractor1 the 4omestic 0u#,"ontractor has e9ercised and will continue to
e9ercise the skill1 care and dili5ence to #e e9pected o. a pro.essionally ?uali.ied and
competent desi5ner who is e9perienced in carryin5 out such work o. a similar scope1
comple9ity1 nature and siKe to the 0u#,"ontract 'orks.I
111. *he 0peci.ication1 which was a "ontract 4ocument1 set out in the ;reliminaries
0ection 1 details o. the site. ;art 313 descri#es the work as comprisin5 =the construction o.
three hi5h speci.ication private residencies comprisin5 accommodation at #asement and
5round to the third .loors includin5 under5round swimmin5 pool and 5ara5e=. 3t & on pa5e
1/5 the .ollowin5 is stated:
J*he .ollowin5 works may #e desi5ned #y the "ontractor:
'indowsP
2i.tsP
;ilin5P
:asement 'aterproo.in5
8echanical < &lectricalI
*his list did not include any .inishin5s1 joinery or 5laKin5.
112. *he 0peci.ication also provided .or what was called ="ate5ory := work to #e carried
out #y 4omestic 0u#,"ontractors1 these #ein5 =Dirms selected #y competition .rom a list o.
names compiled #y the 3rchitect and "ontractor as descri#ed in "lause 16.3.2= o. the
"ontract "onditions )pa5e 1/12+. ;a5e 1/13 stated that .or "ate5ory : work speci.ic works
were identi.ied includin5 the mechanical1 electrical and pu#lic health services installation1
alon5 with the li.ts installation1 landscapin5 and swimmin5 pool1 pool e?uipment and plant.
;a5e 1/17 re?uired =shop drawin5s $to% #e su#mitted to the 3rchitect prior to the
manu.acture or e9ecution o. the work covered #y the shop drawin5s.= ;a5e 1/1A- stated:
J"ertain 0u#,contractors as de.ined in the "ontract will #e re?uired to provide desi5n1
coordination1 .a#rication1 installation and or #uilders were drawin5s1 desi5n
calculations1 .i9in5 details1 speci.ications and other in.ormation as appropriate durin5
the course o. the "ontract. "ertain 0u#,contractors will #e re?uired to o#tain all local
authority #uildin5 control approvals and any other statutory approvals that may #e
necessary .or their detailed desi5n and works1 and shall #e responsi#le .or the provision
o. all necessary in.ormation to ena#le such approval to #e o#tained in time to meet the
pro5ramme. *hose 0u#,contractors to which this para5raph applies shall include )#ut
shall not #e limited to+ those associated with the .ollowin5 words:
1. 'indowsP
5. 2i.tPI
!owhere was it speci.ied or de.ined that there were to #e 0u#,"ontractors to provide desi5n
or other related desi5n work .or the pool hall 5laKin51 courtyard doors or joinery.
113. ;a5e 1/16 and .ollowin5 addressed in relation to the "ontractor@s 4esi5ned ;ortion
what 5eneral re?uirements there were .or the su#mission o. desi5n and production
in.ormation #y the "ontractor to the 3rchitect .or approvals.
114. 3ppendi9 " to the speci.ications contained a sli5htly wider description o. the 'orks.
>t re.erred to the plannin5 permission 5ranted in /une 1666 and to the .act that an application
would #e made to vary the permission in a num#er o. ways includin5 that the swimmin5
pools would #e #uilt under the rear 5ardens. 3ppendi9 4 provided what was called the
0tructural &n5ineer@s Dirst 0ta5e 0cheme 4esi5n -eport1 which #roadly descri#ed in lists
what was to #e provided. *he li.t was descri#ed as a =5lass li.t car with indirect hydraulic
action=. 8any o. the "ontract 4rawin5s were descri#ed as =;reliminary= comprisin5 layout
and 5eneral arran5ement plans. *here were two elevation drawin5s.
115. '2"@s letter dated 26 8arch 2004 to C<* )incorporated into the contract+ amon5st
other thin5s stated:
J3lthou5h there are a num#er o. elements o. the works that '%0 #e let as "ontractor
4esi5n ;ortions1 we have not included the costs o. any ;ro.essional >ndemnity
>nsurance or any desi5ner/coordinator input that may #e re?uired1 should all any o. the
stated elements #e let in this way. 3s an indication with re5ard to ;> cover1 we usually
add 0.75L to the value o. any "4; packa5e.=
117. >n the li5ht o. the contract terms1 it is necessary to consider how and in what
circumstances a desi5n responsi#ility and lia#ility can arise in relation to '2" as the
"ontractor. !ormally1 with this .orm o. contract1 as one o. the e9pert architects con.irmed1
the areas o. work which are to #e part o. the "ontractor@s 4esi5ned ;ortion are speci.ied in
the contract documentation. *hat did not happen in this case. 3ll that one had in the
0peci.ication was identi.ication at pa5e 1/5 o. works which =may #e desi5ned #y the
"ontractor=. "learly the word =may= is not permissive in the sense that the "ontractor could
choose to desi5n these works. *he use o. the word JmayI is clearly intended to identi.y
those works which can #e the su#ject matter o. selection #y the &mployer to #e desi5ned #y
the "ontractor.
117. *he term J"ontractor@s 4esi5ned ;ortionI is only de.ined in the 3mended 0econd
-ecital and was speci.ied as #ein5 =the construction o. certain works as noti.ied #y the
&mployer to the "ontractor in writin5=. *hus1 an element o. work can only #ecome part o.
the "ontractor@s 4esi5ned ;ortion i. and there.ore presuma#ly when 48' noti.ies '2"
that this is to #e the case. >t is o. interest and importance to note that it must #e 48' which
noti.ies and the 3rchitect or the Euantity 0urveyor are not as such 5iven authority #y the
terms o. the contract itsel. to noti.yH that is in contradistinction .or instance to the 3rchitect
#ein5 5iven authority to issue instructions re?uirin5 Nariations.
11A. *he ne9t point concerns whether the list at pa5e 1/5 in the 0peci.ication limits what
is to #e desi5ned #y the "ontractor. >n my view1 the contract is clear that the 0peci.ication
identi.ies those works which may or can #e noti.ied #y 48' pursuant to the de.inition in
the 0econd -ecital. *he "ontractor cannot #e asked to desi5n works outside the list at pa5e
1/5. 3lthou5h the wordin5 at ;a5e 1/1A is possi#ly or partly otiose1 it is interestin5 that there
is a re.erence to su#,contractors to which the para5raph relates Jincludin5I those associated
with speci.ied works. ;a5e 1/5 does not provide a list1 so to speak1 #y way o. e9ample.
116. ;a5e 1/1A is at #est con.usin5. *he reality is that no =0u#,contractorsI were =de.ined
in the "ontract=1 at least #y name. &lsewhere )at pa5e 1/12-+1 "ate5ory 3 was to #e work #y
J4omestic 0u#,contractorsI where the .irms were =named in this 0peci.ication=H this
0peci.ication was1 one assumes1 a template used #y the 3rchitect or Euantity 0urveyor and
there are no .irms =named= in it in this case. *he 1A types o. work are the .irst 1A o. the 21
types o. work re.er to pa5e 1/5. >t could #e said that the distinction is #ein5 made #etween
the "ontractor #ein5 asked to desi5n as compared with certain 0u#,"ontractors #ein5 asked
or re?uired to desi5n. -eadin5 pa5e 1/5 with pa5e 1/1A1 the meanin5 #ecomes much clearer.
>. the &mployer noti.ies the "ontractor in writin5 that it re?uires any one o. the 21 types o.
work set out at pa5e 1/5 to #e desi5ned #y the "ontractor1 0u#,"ontractors are to #e
deployed to provide desi5n services .or any o. the .irst 1A o. those types.
120. Fne must then move on to consider how1 contractually1 the noti.ication #y 48' is
to #e made. F#viously1 it must #e in writin5 and that could dou#tless #e #y letter1 e,mail1 .a9
or even #y a meetin5 minute. >t is o#vious also that the noti.ication must #e to '2" #ecause
it must know1 commercially and practically1 that it is to assume desi5n responsi#ility. *he
wordin5 o. any noti.ication does not have to #e in any particular .orm #ut what must #e
re?uired is that it must #e su..iciently clear to #e understood as a noti.ication that desi5n
responsi#ility is to #e assumed #y '2" .or the particular item o. work within one o. the 21
cate5ories identi.ied on pa5e 1/5. >t .ollows .rom this that1 as a matter o. contractual
interpretation1 some sort o. constructive or in.erential knowled5e on the part o. '2" that it
mi5ht have a desi5n responsi#ility .or a 5iven item o. work does not in itsel. deem there to
have #een noti.ication. Fne needs to look at whatever the noti.ication is said to #e and1
primarily answer two ?uestions: is this clearly a noti.ication under the 0econd -ecital and is
it a noti.ication to '2"W
121. > do not consider that noti.ication #y the 3rchitect1 as 3rchitect under the contract1 is
su..icient #ecause there is nothin5 in the contract itsel. which su55ests that the 3rchitect is
clothed with authority in that role to noti.y somethin5 which the parties have a5reed will1 i.
it happens at all1 #e done #y 48'. >t would #e di..erent i. the 3rchitect1 with specially
5iven authority1 wrote words to the e..ect: =Fn #ehal. o. the &mployer1 > here#y noti.y you
are to have desi5n responsi#ility .or ).or e9ample+ the ""*N workI.
122. >n commercial and practical terms1 it is important in my jud5ement under this
construction contract .or the noti.ication to #e clear and unam#i5uous. *he main reasons are
that every#ody involved in the project1 particularly the 3rchitect and other pro.essional
consultants as well as the "ontractor1 need to know who has the ultimate or any particular
desi5n responsi#ility .or any 5iven work. >. the "ontractor has it1 then the 3rchitect knows
to call .or desi5n documentation .or approval. >. the 3rchitect or other o. the &mployer@s
pro.essionals retains responsi#ility1 the "ontractor knows .rom whom to call .or
in.ormation. &ither way1 each can protect itsel. #y securin5 appropriate warranties or other
protection .rom1 say1 su#,contractors who are to #e retained. 3nother not unimportant reason
.or clarity is that1 5iven that all works were the su#ject matter o. provisional sums1 it is more
than ar5ua#le that the "ontractor would #e entitled to some additional compensation .or
desi5n coordination as well as .or the cost o. procurin5 appropriate pro.essional indemnity
insurance as called .or in the tender letter o. 2A 8arch 2004.
123. >n determinin5 whether a "4; noti.ication has #een 5iven1 it may as a matter o. .act
#e relevant to determine i. a desi5n #rie. or what can #e identi.ied as J&mployer@s
-e?uirementsI have #een provided #y or on #ehal. o. the &mployer to the "ontractor. >. no
such #rie. or document which can clearly #e identi.ied as J&mployer@s -e?uirementsI has
#een provided1 dependin5 on what else has #een noti.ied in writin5 to the "ontractor1 it may
#e that one cannot even #y in.erence or interpretation determine that a "4; noti.ication has
#een 5iven.
124. :ecause it .eatures in the di..erin5 approaches to delay analysis adopted #y the two
pro5rammin5 e9perts1 it is also necessary to review what the "ontract "onditions re?uire.
"lause 23.1.1 provides that on the 12 /uly 2004 '2" was to #e 5iven possession o. the site1
proceed re5ularly and dili5ently with the 'orks and to have completed #y the "ompletion
4ate1 23 /anuary 2007. "lause 25 provides .or the "ompletion 4ate to #e e9tended i.
various -elevant &vents occur which cause delay. *hese -elevant &vents include
compliance with 3rchitect@s Nariation instructions )"lause 25.4.5.1+ and a .ailure #y the
3rchitect to provide instructions and in.ormation timeously )"lause 25.4.7.2+. -elevant
provisions o. "lause 25 are as .ollows:
J25.2.1.1 >. and whenever it #ecomes reasona#ly apparent that the pro5ress o. the
'orks is #ein5 or is likely to #e delayed the "ontractor shall .orthwith 5ive written
notice to the 3rchitect o. the material circumstances includin5 the cause or causes o. the
delay and identi.y in such notice any event which in his opinion is a -elevant &ventP
25.2.2 >n respect o. each and every -elevant &vent identi.ied in the notice 5iven in
accordance with clause 25.2.1.1 the "ontractor shall1 i. practica#le in such notice1 or
otherwise in writin5 as soon as possi#le a.ter such notice:
.2 .1 5ive particulars o. the e9pected e..ects thereo.H and
.2.2 estimate the e9tent1 i. any1 o. the e9pected delay in the completion o. the 'orks
#eyond the "ompletion 4ate resultin5 there.rom whether or not concurrently with delay
resultin5 .rom any other -elevant &ventP
25.3.1 >.1 in the opinion o. the 3rchitect1 upon receipt o. any notice1 particulars and
estimate under clauses 25.2.1 $and% 25.2.2
.1.1 any o. the events which are stated #y the "ontractor to #e the cause o. the delay is a
-elevant &vent and
.1.2 the completion o. the 'orks is likely to #e delayed there#y #eyond the "ompletion
4ate
the 3rchitect shall in writin5 to the "ontractor 5ive an e9tension o. time #y .i9in5 such
later date as the "ompletion 4ate as he then estimates to #e .air and reasona#le. *he
3rchitect shall1 in .i9in5 such new "ompletion 4ate1 state:
.1.3 which other -elevant &vents he has taken into account andP
and shall1 i. reasona#ly practica#le havin5 re5ard to the su..iciency o. the a.oresaid
notice1 particulars and estimate1 .i9 such new "ompletion 4ate not later than 12 weeks
.rom receipt o. the notice and o. reasona#ly su..icient particulars and estimate or1 where
the period #etween receipt thereo. and the "ompletion 4ate is less than 12 weeks1 not
later than the "ompletion 4ateP
25.3.3 3.ter the "ompletion 4ate1 i. this occurs #e.ore the date o. ;ractical "ompletion1
the 3rchitect may1 and not later than the e9piry o. 12 weeks a.ter the date o. ;ractical
"ompletion shall1 in writin5 to the "ontractor either
.3.1 .i9 the "ompletion 4ate later than that previously .i9ed i. in his opinion the .i9in5
o. such later "ompletion 4ate is .air and reasona#le havin5 re5ard to any o. the
-elevant &vents1 whether upon reviewin5 a previous decision or otherwise and whether
or not the -elevant &vent has #een speci.ically noti.ied #y the "ontractor under clause
25.2.1.1P
25.3.4 ;rovided always that:
.4.1 the "ontractor shall use constantly his #est endeavours to prevent delay in the
pro5ress o. the 'orks1 howsoever caused1 and to prevent the completion o. the 'orks
#ein5 delayed or .urther delayed #eyond the "ompletion 4atePI
125. Drom these terms1 one can draw the .ollowin5 conclusions material to this case:
)a+ *o secure an e9tension o. time #e.ore ;ractical "ompletion1 the "ontractor has to
5ive notice i. the 'orks are #ein5 delayed or are likely to #e delayed. *his notice can
relate there.ore to actual delays #ein5 e9perienced or to .uture likely delays.
)#+ *he notice should #e accompanied or #e .ollowed as soon as practica#le #y
particulars o. e9pected e..ects and an estimate o. the e9pected delay.
)c+ 'hat is at least initially envisa5ed is that the 3rchitect will carry out a prospective
e9erciseH this is #ecause the "ontractor can 5ive notice when pro5ress is likely to #e
delayed and the 3rchitect has to assess what the likely delay will #e. *his makes sense
so that the parties and the 3rchitect can plan .or the rest o. the jo#. F. course1 notice can
#e 5iven when the 'orks have actually #een delayed #ut actual overall delay will not
happen until a.ter the ori5inal 4ate .or "ompletion has passed. (ow the 3rchitect does
this prospective e9ercise o. workin5 out how much .uture delay will result .rom the
-elevant &vents in ?uestion is not prescri#ed #ut he or she will simply have to do the
#est that he or she canH this may well #e assisted #y pro5rammin5 e9ercises done #y the
"ontractor.
)d+ Fnce the notice1 particulars and estimate under "lauses 25.2.1 and 25.2.2 are 5iven1
the 3rchitect is re?uired to 5rant the appropriate e9tension o. time. *his is not an
optional e9ercise: the word =shallI is clearly and intended to #e mandatory.
)e+ !o later than 12 weeks a.ter ;ractical "ompletion1 the 3rchitect must carry out the
.inal e9tension o. time e9ercise1 irrespective o. whether notices and the particulars have
#een provided. *his will necessarily #e a retrospective e9ercise #ecause ;ractical
"ompletion will have passed and all the delays )whatever the causes+ will have
occurred. 35ain1 the way in which this e9ercise is to #e done is not de.ined.
127. > will review other provisions in relation to other speci.ic disputes later in this
jud5ement.
T1e #ro6ee)&n/. %n) t1e #$e%)&n/.
127. '2"@s "laim was issued on 31 8arch 2010 alon5 with the ori5inal ;articulars o.
"laim. >t was initially a relatively compact pleadin5 in which the claims included seekin5 an
e9tension o. time to ;ractical "ompletion1 the return o. deducted li?uidated dama5es and
sums wron5ly deducted .or alle5ed de.ects1 loss and e9pense related to delay and the
outstandin5 unpaid value o. works. *he e9tension o. time claim was #ased on events
surroundin5 the 2i5ht 'all1 the 2eather in the 2i#rary1 the 0tin5ray doors1 the li5htin5 and
:arrisol ceilin5s1 3:'1 &9ternal 'orks and '"2 and '"3 li5htin5. *he ;articulars o.
"laim have #een amended twice and #een particularised #y way o. Noluntary ;articulars and
other Durther >n.ormation. *here were 3nne9es and 0chedules attached which provided
some .urther in.ormation a#out the delays and the money claims.
12A. 48' served its ori5inal 4e.ence and "ounterclaim in 0eptem#er 2010 althou5h it
has since #een amended on .our occasions. *he #asic pleadin5 ran to 414 para5raphs and
140 pa5es alon5 with detailed appendices. >t is .air to say that there was a thorou5h response
and a myriad o. issues was raised. >t claimed that there had #een an overpayment in terms o.
the value o. work1 that no .urther e9tension o. time was due1 that su#stantial li?uidated
dama5es were due and that a sum approachin5 B2 million was due to de.ects and that
'2"@s holdin5 company was also lia#le under the terms o. a 5uarantee.
126. 48' also #rou5ht ;art 20 claims a5ainst :2431 ":;1 /0> and &?uation which
pleaded most o. the de.ects a5ainst one or more o. them and asserted that the delays were
caused #y them1 to a 5reater or lesser e9tent1 to the e9tent that it was esta#lished that '2"
was entitled to an e9tension o. time. *hese third parties responded.
130. *here were a num#er o. procedural outin5s to the "ourt1 some o. which were heavily
contested1 in particular those which related to the way in which '2" had particularised or
proposed to particularise its case on delay and its linka5e to the loss and e9pense claimed.
*he "ourt eventually decided that a -e,amendment to the ;articulars o. "laim was
appropriate supported #y e9tensive Noluntary ;articulars )in the .inal .orm+ and an e9tensive
document called =4etailed 2oss and &9pense=.
131. >n mid,/uly 20111 48' and the third parties settled their di..erences under an
a5reement #y which they paid 48' some B1.A million inclusive o. costs. *his at least was
sensi#le 5iven that the costs o. si9 parties would have led to costs )even assessed on a
standard #asis+ massively e9ceedin5 what was really in issue in the case.
132. *here is no need here particularly to analyse those pleadin5s #ecause > address what
remained o. the pleaded issues in the #ody o. this jud5ement.
An%$0.&. of M%8or C%5.e. of De$%0. %n) M%8or Defe6t.
133. Civen the pleadin5s and the alle5ations and evidence put .orward a#out alle5ed
de.ects and causes o. delay1 it is sensi#le to analyse the .acts and le5al responsi#ilities in
relation to the su55ested pro#lem areas1 namely the 3:'1 the "ourtyard 0lidin5 4oors1 the
2i5ht 'all1 the 2i.t1 the :arrisol "eilin5s1 2eather in the 2i#rary1 sna55in5 and plaster
de.ects. 3n important area .or consideration o. the .irst si9 items is the contractual risk or
responsi#ility .or the desi5n. > will not here consider the delay conse?uences o. these
pro#lem areas #ut simply seek to make .indin5s o. .act and lia#ility1 which will or may
impact on the delay analysis which .ollows.
AB!
134. *he wood .or the .loorin5 throu5hout much o. Gnit " and the veneered cup#oards
and skirtin5s was 3merican :lack 'alnut1 which was a personal selection and pre.erence o.
8r and 8rs 8ackay. 3lthou5h the ?uality o. the .loorin5 was also criticised in 2007 and
200A1 no alle5ations in relation to the .loorin5 have #een pursued in these proceedin5s. *he
complaints relate to most o. the veneered cup#oards and skirtin5s. *here are essentially two
main issues relatin5 to 3:'. *he .irst is whether or not '2" owed any duty to 48' to
advise it or its architect a#out the risk that 3:' does have a propensity to .ade in natural
li5ht. *he second issue revolves around whether or not in 0eptem#er 2007 8r and 8rs
8ackay e..ectively instructed '2" to stain all the veneer wood throu5hout the house and
whether '2" should have advised or warned 48' or the 8ackays that the stainin5 or
stainin5 process would or could suppress the e..ect o. the natural 5rain. 'hilst the second
issue is ar5ua#ly the most important issue1 the .irst issue is relevant #ecause it was the
.adin5 and chan5in5 o. colour o. the veneered wood which ultimately led to whatever the
decision was a#out stainin5. *his .irst issue involves a consideration o. whether or not )and
to what e9tent+ '2" and 3dams in e..ect on its #ehal. had some sort o. desi5n or desi5ner
responsi#ility to advise a#out the risk o. .adin5. 48' immediately runs into di..iculty on
this .irst issue #ecause 8r /ustice "oulson has already decided in the ;art A proceedin5s
)$200A% &'(" 3136 )*""++ that the .adin5 o. the 3:' cannot1 in the a#sence o. an
identi.ia#le #reach1 5ive rise to a lia#ility on '2". *here is no e9press term o. the "ontract
that the wood should not .adeH i. '2" is not in #reach o. contract as such .or the wood
.adin51 it is di..icult to see that it had any o#li5ation to advise a#out the risk o. .adin5. *hat
said1 it is still necessary and help.ul to review what happened and what the contractual risks
and responsi#ilities were #ecause 48' ar5ues that there was a desi5n o#li5ation on '2"
which would have encompassed an o#li5ation in e..ect to warn.
135. *here was no e9press or e9pressed noti.ication to '2" #y 48' or anyone on its
#ehal. that desi5n responsi#ility should .all on '2".
137. 3t some sta5e in the .irst hal. o. 20051 8r and 8rs 8ackay had selected 3:' as the
wood which they wanted .or the .loorin5 and .or the joinery and skirtin5s. Fn 27 8ay 20051
'2" invited1 amon5st others1 3dams /oinery1 to ?uote in relation to the joinery .or =the
supply and .it out o.= various rooms in Gnit "H this was said to #e ;acka5e !o '; 2A4 and
the attached "ontract *ender &n?uiry document provides only 5eneral re?uirements .or
tenderin51 al#eit it envisa5es that workin5 drawin5s would #e provided #y the su#,
contractor and .or =desi5n development=. *here is no evidence that this .orm o. &n?uiry was
promul5ated1 re?uired or otherwise called .or speci.ically #y 48' or anyone on its #ehal..
3dams /oinery ?uoted on 23 /une 2005 )B4101275.63 .or .ive #athrooms1 two dressin5
rooms and two '"s+ and on A /uly 2005 )B275142A.12 .or the "inema1 'ine 0tore1 "loaks1
Damily -oom1 a '"1 2i#rary and 8rs 8ackay@s study+. *hese ?uotes were =.or the supply
and installation as per architectQs drawin5s=. *here is no su55estion that the 3rchitect@s
drawin5s add anythin5 which mi5ht su55est any desi5n responsi#ility was #ein5 devolved
throu5h '2" to the selected joinery su#,contractor. *here .ollowed a period in which there
were some discussions and ne5otiations on price1 includin5 as #etween C<* and 3dams
/oinery.
137. Fn 3 Fcto#er 20051 :243 #y its >nstruction !o. 177" instructed '2" to place its
order with 3dams /oinery in relation to these ?uotations and C<*@s attached summary
sheet. *hat attached sheet identi.ied a revised tender sum o. B5471545.71 which identi.ied
ne5otiated reductions .or preliminaries and a B171000 reduction =on the #asis that :243
have .inished desi5n and there is little need .or desi5n development=.
13A. Fn 23 !ovem#er 20051 '2" wrote to 3dams /oinery sayin5 that it was their
intention to place orders with it =.or the desi5n development1 supply1 delivery and
installation o. the .it out works and selected joinery=. Fver the .ollowin5 .our or .ive months
.urther ?uotations .or additional rooms were sou5ht .rom and provided #y 3dams /oineryH
20 Fcto#er 2005 )three ?uotes1 B1361133.4A .or sta.. rooms1 drawin5 room and two
childrenQs #edrooms1 B261614.13 .or 8r 8ackay@s study and B351406.24 .or the master
#edroom and 5uest suite+1 7 !ovem#er 2005 )three ?uotes1 details not in the "ourt papers+
and 2 4ecem#er 2005 )one ?uote1 not in papers+. *here is no su55estion that these .urther
?uotations ?uoted .or anythin5 other than the supply and installation o. joinery in all the
rooms which are the su#ject matter o. the 3:' complaints or that the 3rchitect@s
instructions1 so to speak1 acceptin5 them1 called .or anythin5 other than the =supply and
installation= o. the joinery in ?uestion.
136. Gltimately1 #y way o. an Frder dated 13 /anuary 2007 si5ned #y '2" and 3dams
/oinery1 a su#,contract was entered into nominally in relation to the works ?uoted .or on 23
/une 2005 and A /uly 2005 #y 3dams /oinery. *he works were #rie.ly descri#ed as =.it out=
works and there was a 0chedule o. 4ocuments .ormin5 the 0u#,"ontract 35reement. *his
0chedule however related to more than just the rooms and the areas descri#ed in those two
?uotations and re.lected .urther architects instructions relatin5 to the later ?uotations #y
which '2" was a5ain instructed to place orders with 3dams /oinery =.or the supply and
installation= o. various items o. joinery. *here is nothin5 on the .ace o. all the 3rchitects
>nstructions which called .or desi5n work as such to #e done either #y '2" or #y 3dams
/oinery in relation to the joinery. *he total sum identi.ied in the 0chedule o. 4ocuments was
B7471573.61. *he =0u#contract ;re,Frder 35reement=1 said to have #een incorporated
identi.ies that the works e9tend not simply to joinery #ut also to other types o. .it out
includin5 #athrooms and a5ainst :o9 261 whilst =Dull 4esi5n= was e9pressly e9cluded1
=4evelopment o. 4esi5n=1 ="o,ordination o. 4esi5n= and ="o,ordination o. 4esi5n with
other trades= was re?uired. *his 0u#,"ontract must have #een entered into shortly a.ter 7
8arch 2007 #ecause the last documents re.erred to in the 0chedule o. 4ocuments is dated 7
8arch 2007.
140. *he relevant speci.ication re.erred to in the 3dams /oinery 0u#,"ontract was !:0
V10 which was an adapted !ational :uildin5 0peci.ication .or =;urpose made joinery=
which had #een issued al#eit not .ormally1 #y instruction or letter1 #y :243 to '2".
-elevant clauses were:
J102c 4&0>C! 3!4 ;-F4G"*>F! -&0;F!0>:>2>*>&0
*he 0u#contractor shall #e responsi#le .or the .ollowin5:
"ompletin5 the desi5n/detailin5 and provide complete .a#rication/installation
drawin5s1 .ull siKed rods/shop drawin5s as appropriate .or approval #y the
3rchitectP
220a 'FF4 N&!&&-&4 :F3-40/;3!&20P
0ettin5 out: Neneer .eatures is and 5rain pattern ali5ned re5ularly and symmetrically
unless instructed otherwiseP
Neneer ed5es: *i5ht #utted and .lush1 with no 5apsPI
141. *here is nothin5 in what passed #etween 48' and its consultants on the one hand
and '2" on the other which e9pressly or even #y implication su55ests that desi5n lia#ility
was #ein5 passed to '2". *he .act that '2" was seekin5 to impose on 3dams /oinery
some desi5n responsi#ility1 al#eit limited to desi5n development and the production o.
workin5 drawin5s1 does not in itsel.1 lo5ically1 commercially or at all1 5ive rise to any
in.erence that '2" was #ein5 noti.ied or re?uired #y 48' to assume a desi5n
responsi#ility as #etween 48' and '2". !o case in estoppel is pleaded #y 48' in this
conte9t so1 .or instance1 it is not #ein5 su55ested that #y way o. some estoppel #y
convention the parties were proceedin5 on the #asis that '2" had assumed a .ull or
material desi5n responsi#ility as #etween it and 48'.
142. *he V10 speci.ication relatin5 to the completion o. the desi5n or detailin5 does not
really assist 48' in this conte9t. *he #asic desi5n had in .act #een done su#stantially #y
:243H this much is evident .rom the 36 :243 drawin5s set out in the 0chedule o.
4ocuments and also .rom the main 3rchitect@s instruction which e9pressly re.erred to
:243 havin5 .inished the desi5n and there #ein5 little need .or Jdesi5n developmentI.
&ven i.1 as #etween '2" and 48' there was some desi5n o#li5ation on '2"1 it would #e
limited to =completin5= the desi5nH that must envisa5e that essential desi5n decisions had
already #een taken and that those decisions were e..ectively immuta#le. *here is no real
su55estion that any o#li5ation on the part o. 3dams /oinery to produce .a#rication or
workin5 drawin5s carried with it a 5eneral desi5n o#li5ation or responsi#ility.
143. 8r Vom#ory,8oldovan1 the e9pert architect called #y '2"1 said in evidence that .
.a#rication and shop drawin5s are drawin5s that show the composite o. how a desi5n is to #e
made and how it is to #e manu.acturedH a .a#rication drawin5 is not simply the isolation o.
components o. the installation .or production in the .actory or the workshop #ut it #rin5s
to5ether all o. those components and sets it them out on a composite drawin5. Drom that
drawin5 the manu.acturer is then a#le to identi.y speci.ic components1 #ut can understand
.rom its own shop or .a#rication drawin5 how many speci.ic components sit within the
overall arran5ement. > accept this evidence as lo5ical.
144. >t was 8r and 8rs 8ackay who selected 3:' as the wood which they wanted .or
the veneered cup#oards and skirtin5s. *his occurred essentially in 2005 at a time when
3dams /oinery had not .inally #een en5a5ed contractually #y '2". *he documentary
evidence shows that the selection o. a 4anish Fil .inish as opposed to a lac?uer .inish )save
in a .ew areas+ had #een made #y mid De#ruary 2007. Fn 17 De#ruary 20071 :243 emailed
3dams /oinery con.irmin5 this. :ev .rom 48'@s interior desi5ners did not like the lac?uer
.inish #ecause it looked =cheap= and 8r and 8rs 8ackay did not like the lac?uer .inish1 as
con.irmed in :ev@s email dated 17 De#ruary 2007 to :243. *his selection was made
notwithstandin5 the clear recommendation o. 8r (awks o. 3dams /oinery that lac?uer was
#etter #ecause it 5ave added dura#ilityH he repeated that advice in an e,mail to :243 on 17
De#ruary 20071 e9pressin5 his 5reat concern. *his is important #ecause it does not appear
that at least those advisin5 8r and 8rs 8ackay were placin5 any si5ni.icant reliance on
what 3dams /oinery were sayin5 a#out this. *o the e9tent that they were relyin5 on anyone1
the 8ackays were relyin5 on the interior desi5ner ):ev+ and :243. 8rs 8ackay 5ave
evidence that she went to -eliance Neneers in 8arch 2007 #ut this must have #een simply to
select the particular piece o. 3:' .rom which the veneer was to #e taken. *he #asic
decision a#out usin5 3:' had #een made already many months #e.ore #ecause 3dams and
others had #een asked to ?uote .or the use o. 3:'. 3dams did send various samples o.
3:' in 8arch 2007 and1 > .ind1 it is likely that they did not have a sticker on the #ack
which su55ested that the veneer mi5ht .ade in sun li5ht.
145. 2ater in 2007 5oin5 into early 20071 3dams /oinery supplied and installed the 3:'
veneered cup#oards and skirtin5s #ut1 unlike the .loors which were protected with coverin5s
to ena#le workmen to pass over1 the veneered sur.aces were not so protected. >t should #e
appreciated that many o. the windows are lar5e and let in a su#stantial amount o. natural
li5ht.
147. >n the Ceneral "hronolo5y1 > re.er to some o. the history as to the discovery o. the
perceived pro#lem. *his #e5an to emer5e mostly in /une 2007 and1 initially1 there was
complaint and concern that the 8ackays had not #een advised or warned that either wood
5enerally .ades or that 3:' not only .ades #ut also somewhat chan5es colour. 8rs 8ackay
thou5ht that it was 5oin5 yellow )althou5h later she and her hus#and were to re.er to it as
oran5e+. 'hen she reported this to 0onya (ammond #y e,mail on 25 /une 20071 the latter@s
response was that =the veneer will chan5e in colour as it a5es and is e9posed to li5ht=H she
su55ested that it would #e possi#le to Jstain it to any shade you .ind more a5reea#le i. you
pre.er=. 8rs 8ackayQs response later that evenin5 was somewhat a#rupt #ut she emphasised
that she would have e9pected :243 to Jhave spotted the pro#lem anyway and asked .or a
solution on our #ehal.I. 35ain1 this su55ests that the reliance o. the 8ackays in this conte9t
was on their architect or possi#ly interior desi5ner as opposed to '2" or 3dams /oinery.
*he pro#lem continued to #e raised in the .ollowin5 walk around meetin5s. Dor instance at a
meetin5 on 4 /uly 2007 8r 4avis o. :243 con.irmed =that old tim#ers will chan5e colour
as they a5e and are e9posed to day/sun li5ht=H he said that it =was .ortunate that the chan5in5
is occurrin5 uni.ormly across the unit=.
147. 3part .rom the colour pro#lem )which was overwhelmin5ly the main one+1 as it was
perceived #y the 8ackays to #e1 there were in places concerns that a#uttin5 pieces o.
skirtin5 showed up as #ein5 too dark or non,matchin5 at the joints. *his particular pro#lem
was addressed #y 3dams #y a polishin5 techni?ue which si5ni.icantly improved the look o.
the a..ected joints.
14A. 3s con.irmed in a letter dated 4 0eptem#er 2007 .rom :243 to 8r :ardsley o.
-2:1 :243 instructed '2" to stain the door to the third .loor Cuest 0uite to see whether
the client would accept it with a view to stainin5 the remainder o. the 3:'. *his was done.
146. 3t a walk,around meetin5 on 5 0eptem#er 2007 attended #y 8r 8ackay #ut with no
representative o. '2" present1 8r 8ackay complained that the 3:' was #ecomin5 too
oran5e in colour. *here was re.erence to the .act that 3dams had said recently that =the oil
walnut will .ade in dayli5ht as it does not contain a GN inhi#itor as lac?uer canIH 3dams
was reported as sayin5 that the .adin5 pro#lem was =a de.ect as the speci.ier should have
#een aware o. this=H they could =re,oil the walnut veneers with the stainin51 #ack to the
ori5inal colour however they will .ade a5ain=. >t was con.irmed that 3dams was instructed
to stain the door to the Cuest 0uite as a sample.
150. 3 key meetin5 in this history is that o. 16 0eptem#er 2007 attended #y )amon5st
others+ 8r and 8rs 8ackay1 his assistant )Cemma *ate who was 8r 8ackay@s ;3+1 8r
4avis and 8s (ammond o. :2431 8essrs /oyce and Dairweather )o. '2"+1 :ev1 and
8essrs :ardsley and :artlett o. -2:. *he minute states:
JDrench polished sample 4oor to Cuest 0uite T *he clients #oth a5reed stained sample
is now a much #etter colour1 closer to the e9pected colour. MD stated that the Drench
polishers used a coloured stain.
C8 showed 424 a photo o. the #ack o. the walnut sample they approved in $the
interior desi5ner@s% o..ices. *he photo showed a sample without a disclaimer la#el .rom
3dams /oinery )3/+. 424 showed C8 a typical 3dams /oinery tim#er sample with
their standard disclaimer sticker. *his sticker states that the colour o. the tim#er may
.ade in time. "8 stated that even with this in.ormation it was not clear enou5h1 they
were never in.ormed that the tim#er would chan5e colour. 0he asked whether the colour
would .ade .urther. 0( con.irmed that it may .ade and mi5ht need a re,application. //
asked whether '2 are to proceed with the Drench polishin5 works to all walnut veneers.
C8 said yes and asked a#out whether various shades o. stain are availa#lePI
151. 8r /oyce and 8r Dairweather were in no dou#t at the time and 8r /oyce was
une?uivocal in evidence that at this meetin5 8r 8ackay told them to apply stain .or the
remainder o. the veneered wood throu5hout the house. Fn the same day1 shortly a.ter the
meetin51 8r Dairweather e,mailed 3dams /oinery in the .ollowin5 terms:
J*he sample colour and .inish to the 5uest entrance door has #een accepted #y the
client.
'e there.ore need to address all the 'alnut 4anish oil .inished joinery to match the
sample.=
152. *he minutes o. the meetin5 was circulated to all concerned includin5 8r and 8rs
8ackay on 24 0eptem#er 2007. *hey were never challen5ed. 3s indicated elsewhere in this
jud5ement1 meetin5 minutes were o.ten challen5ed #y1 principally1 8r 8ackay.
153. *he stainin5 work throu5hout the house was done and lar5ely completed over the
ne9t 2 to 3 weeks. Fn 10 Fcto#er 20071 at another walk,around meetin51 no complaint was
made as such #y 8r and 8rs 8ackay that stainin5 work was #ein5 done to the veneered
sur.aces throu5hout the house. 'hat was minuted at ;ara5raph 3.07 was as .ollows:
J3s a 5eneral note C8 e9pressed stron5 concern re5ardin5 the stainin5 works 3dams
are undertakin5 to the 3merican :lack 'alnutH hi5hli5htin5 how there is si5ni.icant
colour variation .rom room to room and o.ten the stainin5 is very #lotchy. *he joints are
also darker. C8 considered that all these points make the tim#er unaccepta#le. '2
con.irm that the oil seal had not #een applied. C8 and "8 con.irm that the samples
$sic% doors on the top .loor were accepted. "8 su55ested that 3dams makes a sample
#ased on the acceptance which can #e re.erred to within each room which would
hi5hli5ht the variation1 and should assist with addressin5 the issue. // to arran5e a
meetin5 with Drench polisher .oreman to resolve the issues.=
*hese minutes stron5ly su55est that 8r and 8rs 8ackay were not o#jectin5 to the .act that
the stainin5 work was #ein5 done throu5hout the house #ut more to it #ein5 done in a way
which was unaccepta#le. *here is also a con.irmation that the sample #ein5 o#served was on
the doors on the top .loor.
154. 3t the ne9t walk,around meetin5 on 17 Fcto#er 20071 the .ollowin5 was minuted:
J3dams were stainin5 (er 0tudy joinery at the time o. the meetin5. *he .our drawers in
the centre had received the sealer oil. '2 would like acceptance in terms o. the oiled
wood #e.ore proceedin5 .urther. "8 con.irmed acceptance o. the drawers statin5 that
they looked 5reat. *he stainin5 o. the wood 5enerally was much improved also. 3dams
showed "8 a sample that had #een made and was reported to #e #ased on the approved
doors on the top .loor. "8 con.irmed acceptance o. the sample.=
155. 3t another walk,around meetin5 on 31 Fcto#er 2007 the .ollowin5 was recorded at
para5raph 3.01 o. the minutes:
JC8 stated that they are not in acceptance any $sic% o. the stainin5 works and are
anticipatin5 an imminent arrival o. report .rom *rada. C8 reported dissatis.action with
variation #etween the stainin5 which is noticea#le within runs. >n addition the shadow
5aps are too dark relative to the rest o. the wood1 and the #utt joints are too dark. C8
reported that 5rain had #een lost in the tim#er #ecause o. the e9cessive stainin5 and it
does not look like a 3merican :lack 'alnut ori5inally approved. -: $o. '2"%
reminded C8 that '2 has undertaken the stainin5 work at C8s re?uest. "D $o. :243%
re.erred to the previous meetin5 where "8 approved the drawers to (er 0tudy and
other samples includin5 the door on the top .loor )".43.04+ and the hand held sample.
"8 reported that they had su#se?uently #ecome darker #ecause the Drench polisher has
5one over them a5ain. C8 stated that '2 are tryin5 to make the #est o. a #ad situation
#y stainin5 the wood1 and are not aware o. what is 5oin5 to occur to the .inish lon5
term. C8 e9pressed dissatis.action with the stainin5 and e9plained that it has resulted in
somethin5 which is unaccepta#le.I
*here were no challen5es to these parts o. the minutes o. these Fcto#er meetin5s.
157. *he *-343 report commissioned #y '2"1 dated !ovem#er 2007 reported that the
appearance o. the un,stained veneer =was consistent with what we would e9pect to see in
3merican :lack 'alnut. *here were natural variations in the colour o. tim#er across the
5rain .rom a rich dark #rown to a li5hter oran5e,#rownI. *he *-343 e9pert carried out a
detailed inspection throu5hout the houseH he was the view that the use o. the 4anish Fil was
=unlikely to cause= the colour chan5e. (e was o. the view that the =stain has provided a hi5h
?uality uni.orm .inish= al#eit that =the result o. the stained walnut does not match the
speci.ied walnut veneer=. (e considered the speci.ication in the conte9t o. the matchin5 o.
skirtin5 len5thsH #y reason o. the stainin5 he could not assess whether there were si5ni.icant
variations in the colour or shade o. adjacent sections o. the skirtin5 #oards.
157. >t is clear .rom documents1 in particular those to and .rom Mnowles as disclosed #y
48'1 that 8r and 8rs 8ackay were havin5 detailed advice a#out the 3:' issue. Dor
instance on 21 0eptem#er 2007 they had a report .rom an e9pert at Mnowles a#out the 3:'.
>nterestin5ly1 it is also clear that Mnowles attri#uted all or much o. the pro#lem to :2431
.or instance in its letter dated 27 0eptem#er 2007 to 8r 'est.
15A. :y sometime in 4ecem#er 20071 8r 8ackay was seekin5 to have the whole o. the
3:' veneered wood replacedH that was called .or in an e,mail .rom 8r 8ackay on 10
4ecem#er 2007. 8r :ates o. '2" replied on 11 4ecem#er 2007 sayin5 that it had
=correctly carried out veneered walnut joinery to the speci.ication and 3>sIH he #elieved that
the =issue appears to lie with what aesthetic you perceived you would #e 5ettin5 as to what
you have 5ot=. (e said that '2"1 3dams1 :243 and *-343 all #elieved that '2" had
complied with Jthe speci.ication in .ull #y installin5 ?uality natural materials to a hi5h
standard o. workmanship=. *his #elie. had #een e9pressed #y those .our parties. (owever1
8r and 8rs 8ackay clearly #elieved that the work was de.ective and1 as 8r 8ackay said at
a meetin5 on 12 4ecem#er 20071 either '2" accepted that or he would arran5e .or work to
#e undertaken and recover all costs .rom '2".
156. *he position o. the 8ackays .rom a#out this time on )and as put .orward #y them in
evidence+ was that they did not authorise stainin5 .or the whole house at the meetin5 o. 16
0eptem#er 2007 #ut only a limited amount o. stainin5 within the Cuest 0uite and that the
sample was not the third .loor entrance door to it1 as had #een stained #y 3dams #e.ore that
meetin5. 0o .ar as my .indin5s o. .act are concerned1 > am totally satis.ied that 8r 8ackay
did positively instruct and ask '2" to stain all the veneer throu5hout the house and that the
sample a5ainst which the stainin51 so to speak1 to #e measured1 was to #e that o. the
entrance door which had #een stained #y 3dams #e.ore that meetin5 .or that very purpose.
8y reasons are as .ollows:
)a+ > .ound 8r /oyce to #e a wholly #elieva#le witness 5enerally #ut particularly on this
topic.
)#+ *he minutes o. the meetin5 are reasona#ly clear and records this.
)c+ 'ithin a very short time a.ter the meetin5 )on the same mornin5+1 8r Dairweather
who was at the meetin5 was instructin5 3dams to stain throu5hout the house. 'ith a
client who was known to #e di..icult and #e.ore the minutes had come out1 he must have
#een a#solutely clear on what had #een said. >t is unrealistic to #elieve that he would
have made it up.
)d+ *he minute was not challen5ed #y either 8r or 8rs 8ackay. 0ince the 3:' was
somethin5 which was close to their hearts1 and #ecause they had #een concerned in the
past a#out the accuracy o. minutes1 it is not credi#le that they did not challen5e these
minutes i. they were inaccurate in this particular re5ard. :243 never withdrew or
revised the minute.
)e+ *he later minutes1 particularly in Fcto#er 20071 do not hint at any complaint that
stainin5 was #ein5 done throu5hout the house. 35ain1 it is simply not credi#le that '2"
had not #een instructed to stain throu5hout the house. >. there was any issue a#out that1 >
would have e9pected it to have #een raised in these later Fcto#er meetin5s or at the very
least in some contemporaneous documentsH this did not occur.
).+ 0imply1 > did not .ind the evidence particularly o. 8r 8ackay on this topic credi#leH
he was e9tremely .alterin5 under cross,e9amination on the topic1 unsurprisin5ly in one
sense #ecause almost all o. the contemporaneous documentation1 unchallen5ed #y him1
undermined what he was sayin5. 3lthou5h 8rs 8ackay was in some respects a =#etter=
witness than 8r 8ackay1 > .ound her evidence on this area o. the case particularly
unconvincin5. >t is interestin5 that on several copies o. the Fcto#er meetin5 minutes she
wrote various notes ?uali.yin5 what had #een minuted. 0he also did not challen5e the 16
0eptem#er 2007 meetin5 minutes and her solicitor #ack5round would have warned her
o. the need to challen5e the minutes on a topic such as this1 close as it was to her heart1
i. the minute did not clearly recall what was said.
170. 'hat is clear to me is that 8r and 8rs 8ackay were very disappointed in the
summer o. 2007 that the veneered wood had altered colour .rom that which they were
e9pectin5. :243 had su55ested that stainin5 the wood mi5ht well 5et the wood to the
colour which they wanted and with their knowled5e and consent the main door to the Cuest
0uite was stained #y 3dams to #e considered as an appropriate sample. 8r and 8rs 8ackay
saw that sample and1 as the minute o. 16 0eptem#er 2007 indicates1 liked what they saw and
8r 8ackay e9pressly and clearly told '2" to 5o ahead and stain the veneer throu5hout the
house. *hey .ound on re.lection a.ter the work was done that they did not like it #ecause it
took away1 in their minds1 some or all o. the aesthetic ?ualities which they were lookin5 .or.
171. 3nother very important .actor is that the 8ackays1 when later in 200A they instructed
>nterior /oinery to remove the old stain applied in 0eptem#er and Fcto#er 20071 o#viously
approved an even darker stain throu5hout the house than that which was applied #y '2"H
this second stainin5 operation has1 to an even 5reater e9tent than #e.ore1 covered the more
natural look o. the 3:'. *his supports the view that their state o. mind #ack in 0eptem#er
2007 was that a dark stain was to #e provided throu5hout the house #ecause they repeated
the mistake )i. it was a mistake at all+ some A months later. 'hilst they now #elieve
adamantly that the stainin5 #y '2" was a culpa#le mistake on its part1 the mistake1 i. such
it was1 was that o. the 8ackays.
172. >t .ollows .rom what was said earlier that > do not consider that '2" had any desi5n
responsi#ility .or the selection o. 3:' in this case. *here was no material noti.ication o.
them that the joinery in 5eneral or the selection o. the 3:' in particular was an aspect o.
the desi5n which was to #e devolved upon '2". >. there was no material desi5n
responsi#ility1 there can in lo5ic have #een no o#li5ation on the part o. '2" via 3dams or
otherwise to advise the 8ackays that the 3:' mi5ht .ade or chan5e colour in time on
e9posure to natural li5ht. 3s indicated a#ove1 > do not consider in any event that the
8ackays were relyin5 on '2" or even 3dams .or thatH to the e9tent that they were relyin5
on anyone1 it was :243 or :ev. *he selection o. the 3:' and the 4anish Fil occurred
#e.ore there was a su#,contract in law #etween 3dams /oinery and '2". 3s ri5htly
accepted #y 8r 0ears E" .or 48'1 i. there was no overall desi5n lia#ility on the part o.
'2" in relation to 3:'1 there was no duty to warn either that it mi5ht .ade or that i.
stained it would lose or su..er a reduction in whatever aesthetic ?uality appealed to the
8ackays.
173. >t is su55ested that there remain some other de.ects. Fne other complaint is that
'2" ensured that the .eature is an in5rained pattern allyin5 to re5ulate and/or
symmetrically with the result that there was a marked variation in the colour o. the 3:'
.rom one part o. the skirtin5 to another. >t is claimed that the 3:' is de.ective #ecause it is
not J#ook matchedI )the practice o. matchin5 two )or more+ wood sur.aces1 so that two
adjoinin5 sur.aces mirror each other in appearance1 thus 5ivin5 the impression o. an opened
#ook+. (owever1 > am satis.ied that there was no desi5n/speci.ication re?uirement .or the
veneers to #e #ook,matched. Fn the contrary1 the re?uirement in the speci.ication was .or
=.eatures and 5rain pattern ali5ned re5ularly and symmetricallyI which > am satis.ied has
#een installed. >t appeared to #e common 5round #etween the e9perts that what one must do
in that situation is one@s J#estI with the veneer selected1 5iven that there will #e some
variations #etween adjoinin5 #its o. veneered sur.ace. :243 at the time saw what had #een
carried out and was satis.ied that it was in accordance with the speci.ication and amounted
to 5ood workmanship. 3nother point was relatin5 to the .illed .i9in5 pin headsH the only
relevant evidence on the point is that it was normal practice to .ace,pin vertical )mitred+
joints with lost,head pins1 .ace .illed1 which is what has #een done correctly #y '2".
174. *hese relatively minor points in any event have #een =lostI or covered over #y the
re,stainin5 e9ercise done #y >nterior /oinery in 200A which was done as a matter o. choice
#y the 8ackays. 8r Vom#ory 8oldovan was critical o. the way this work was done in that
it was patchy and in places 5ave a treacly appearance.
175. 3n odd .eature o. 48'@s complaint relatin5 to the 3:' is the .act that .or over
.our years since the pro#lems which are now the su#ject matter o. complaint were .irst
raised 8r and 8rs 8ackay have not had the work remedied. *hey are clearly an e9tremely
wealthy couple to whom the cost o. puttin5 ri5ht )as they see it+ o. the de.ective veneer is
relatively minor. 8r 8ackay su55ested that the only reason that they had not was #ecause
they did not want to destroy the evidence. *hat is not an o#viously credi#le e9planation
#ecause all that they would have had to do )as 8r 8ackay must have known+ would have
#een to noti.y interested parties that they were intendin5 to replace the veneer and 5ive them
an opportunity to inspect1 photo5raph and possi#ly take samples and then 5one ahead and
done the remedial works. *hey have lived1 apparently happily1 in the house since 3u5ust
200A with veneered sur.aces which they 5ive the impression are e9tremely upsettin5 to
them. > have the stron5est impression that this complaint althou5h nominally worth a
su#stantial si9,.i5ure sum in terms o. dama5es as well as contri#utin51 ar5ua#ly1 to critical
delay1 is and was always perceived1 at least #y 8r 8ackay1 as a makewei5ht complaint.
177. >. there had #een any lia#ility on '2" .or the 3:'1 > would have .i9ed the potential
level o. dama5es recovery #ased on what 8r Vom#ory,8oldovan and 8r (unter said in
evidence. (owever1 .or reasons dealt with elsewhere1 > would have allowed nothin5 #y
reason o. the settlement which 48' reached with the other third parties to the proceedin5s
9
Co5rt0%r) S$&)&n/ Door.
177. *he primary issue here relates to the e9tent to which1 i. at all1 '2" was
contractually responsi#le .or the desi5n o. these lar5e heavy doors. *hey were each to wei5h
almost a metric ton and were a#out 5 m lon5 way and 3 m hi5h.
17A. :y !ovem#er 20041 :243 o. its own initiative had approached Dirman and secured
a #ud5et ?uotation .or the "ourtyard 5laKin5 .or B12A1700 per house. >t is clear that .rom
this time onwards :243 played the major role in determinin5 what the essential elements o.
the "ourtyard 0lidin5 doors should #e. 8uch o. this was done in direct consultation with
Dirman and without the involvement o. '2". Dor instance1 :243 wrote to Dirman on 7
/anuary 2005 re.errin5 to a meetin5 at which Dirman had #een le.t =to consider that two o.
the houses re?uire a one way sin5le slidin5 door=H :243 sent a preliminary typical .rame
section and asked whether the door would #e top hun5 or run on #ottom rollers. 3t a
;rocurement 8eetin5 #etween :243 and '2" on 1 8arch 2005 :243 was shown in the
=3ction= column .or this area o. work which was to =#e a com#ination o. tim#er and steel1
yet to #e desi5ned=. 3lthou5h the "ourtyard 0lidin5 doors )identi.ied as 'ork ;acka5e 300+
were on '2"@s list attached to their letter o. 21 8arch 2005 to :243 as potentially #ein5
one o. the "ontractor 4esi5n ;ortion packa5es )indicated as =Dull 4esi5n,0u#ject to 0"
$su#,contract%I+1 :243 con.irmed at procurement meetin5s on 12 3pril and 3 8ay 2005
that it was developin5 the desi5n with Dirman.
176. Fn 24 De#ruary 2005 '2" wrote to 02' with a list o. packa5es in the procurement
report which identi.ied the "ontractors 4esi5ned ;ortion =status as we understand them=1
this #ein5 #ased on the contract preliminaries. 8r 8c8orrow in this letter said that he had
re?uested :243 to compile &mployers -e?uirements .or .uture tender packa5e issues to
avoid am#i5uity. *he attached list identi.ied the "ourtyard 0lidin5 doors packa5e as =Dull
4esi5n, 0u#ject to $0u#,"ontract%I. '2" was to write a5ain to :243 on 21 8arch 2005
with the same list askin5 :243 to =check the status= o. this list. *here was no response.
170. >n 8ay 20051 :243 issued its speci.ication .or =Ceneral 5laKin5=1 !:0 2401 a5ain
adapted .rom the !ational :uildin5 0peci.ication. >t is certainly not clear .rom this
document on its .ace that it was speci.ically intended to apply to these very su#stantial
"ourtyard 0lidin5 doors #ecause the Ceneral 0cope at ;ara5raph 100a related materially
only to J'indow units= which were said to #e =dou#le 5laKed .actory sealed units inserted
into traditional hardwood/placement windows=. ;ara5raph 103 did talk a#out the supplier or
installer #ein5 responsi#le .or =completin5 the 4esi5n and 4etailin5 o. the 'orks and to
provide complete .a#rication/installation drawin5s1 .ull,siKe rod/shop drawin5s as
appropriate .or approval #y the 3rchitect=. 8uch o. the rest o. this document relates to
shower screens and the like.
171. >n late 8ay 20051 it seems that :243 issued a document entitled =!:0
0peci.ication .or structural 5lass assem#lies=1 re.erenced !:0 (13H there does not appear to
have #een any .ormal issue #ut it was descri#ed as =>ssued .or *ender= on its .ace. >t
speci.ically re.erred to =0tructural Class 3ssem#ly to "ourtyard 3reasI and to various
drawin5s includin5 2315/717 and 71A. *hese drawin5s drawn to a scale o. 1:10 provide a
su#stantial amount o. detail not only #y way o. the dimensions. >roko wood is identi.ied as
#ein5 re?uired to .orm the su#stantial 200 #y A0mm .rameworkH the !otes identi.y that the
doors are to #e automatedH there is speci.ied =continuous 5alvanised mild steel ;D"
.ramework as support .or .i9ed 5laKed units= and =slidin5 door track and drive systemI.
;ara5raph 115# speci.ically re.ers to those drawin5s and provides .urther details such as the
.inish1 the type o. 5lass1 the width o. cavity1 the type o. top hun5 slidin5 track with #ottom
.loor 5uide. ;ara5raph 211a headed =4esi5n= stated:
J"omplete the detailed desi5n1 in all respects1 o. the structural Class assem#ly
)includin5 automated slidin5 doors+ and in accordance with the preliminary desi5n
drawin5s and this speci.ication.
"oordinate detailed desi5n with that .or all related work.
;rovide complete .a#rication drawin5s/installation drawin5s .or approval.=
172. ;ara5raph 770# is however headed =0lidin5 4oors to "ourtyard 3reas 3re >ncluded
in 'indow *ype V=. *his clearly does re.er to the two lar5e slidin5 doors #ecause it also
re.ers =to drawin5s 2315/717,71A .or details.= *he track system supplier was identi.ied as
-oltrac )with telephone num#er and e,mail address provided+. Fther speci.ic detail was
provided.
173. 0hortly therea.ter1 '2" was to invite Dirman amon5st others to tender .or the
=desi5n supply and .i9 o. the 5laKed screens to the courtyards=H it does not appear that this
letter was copied to :243. 0o .ar as technical documents were concerned1 the tenderers
were sent three :243 drawin5s1 three location plans and the !:0 240 speci.ication. *he
:243 drawin5s were descri#ed as havin5 a J"onstructionI status and were relatively
detailed. >t was known at this sta5e that in the "ourtyard 5arden )that is #etween the 2i#rary
and 0wimmin5 ;ool "ourtyard 0lidin5 doors+ there was to #e some sort o. water .eature1
althou5h the detail was not known. 3t a site meetin5 on 2A /une 2005 it was reported that
this water .eature was still to #e desi5ned. Dirman su#mitted a hand written ?uotation on 26
/une 2005 =to supply and .i9=H Dirman indicated that the doors were to #e constructed o.
J>rokoI wood. *his was discussed at a meetin5 #etween '2" and Dirman on 5 /uly 2005 at
which1 .or instance1 the pro5ramme and re?uired attendances were discussed. *he meetin5
led to a revision o. the price as set out in Dirman@s .a9 letter dated 12 /uly 2005.
174. '2" su#mitted to :243 its tender report in relation to the .our tenderers and
recommended that a company called (aran should #e awarded the su#,contractH Dirman was
the third tenderer. >t seems that1 #ecause :243 had had e9tensive contacts direct with it1
Dirman were asked to re,?uote and its new price )on 17 3u5ust 2005+ came in at a#out
B1000 less than that o. (aran. 3t a ;rocurement 8eetin5 on 17 3u5ust 20051 :243
e9pressly made it clear that they would pre.er Dirman to carry out this work. Fn 16 3u5ust
20051 :243 issued its .ormal instruction )3> 145"+ to '2" to place =an order with D3
Dirman .or the .a#rication1 delivery and erection o. the courtyards screens in the sum o.
B1171521.07.= 0hortly #e.ore1 on 10 3u5ust 20051 '2" had written to :243 as .ollows:
JDurther to previous re?uests1 we would appreciate your clari.ication and de.inition o.
those packa5es that you will re?uire to #e undertaken as "4;.
'e would also re?uest that you separately identi.y those packa5es that are not "4;
would re?uire desi5n and development and desi5n coordination #y 'alter 2illy or their
su#contractor)s+.
'e re?uire your response ur5ently and #y return in order that we can conclude
in.ormation that has #een re?uested #y Cardiner < *heo#ald in respect o. cost
recovery=.
*here was no response. 8r /oyce1 whose evidence > accept1 said there was no a5reement on
the part o. '2" to accept responsi#ility .or any discussions which Dirman had with :243.
175. Gnder cover o. its letter dated 15 0eptem#er 20051 '2" sent to Dirman its order .or
Gnit "1 re.erenced 1305/0"/0076. *he :rie. 4escription o. the works was =desi5n1 supply
and .i9 the 5laKed screens to the courtyards to plot "PI. Gnder J4esi5nI1 ;ara5raph 26 o.
this order descri#ed the =4esi5n &lement= as =4evelopment o. 4esi5n=. *he order was
si5ned #y #oth parties at some sta5e therea.ter without amendment.
177. *herea.ter1 Dirman prepared various workin5 or detailed drawin5s .or approval #y
:243 and over the .ollowin5 months there was an e9chan5e o. in.ormation #etween :243
and Dirman and :243Qs re?uirements were incorporated in such drawin5s. Dor instance on
6 !ovem#er 2005 :243 on 7 o. the drawin5s marked up in red various chan5es and in
De#ruary 20071 Dirman re,issued its 4rawin5 ;1137,621 as a -evision : identi.yin5 that it
had #een =modi.ied to suit :243Qs comments dated 30,01,07=. Fne o. these speci.ic
re?uirements o. :243 was that the #ead on the outside .ace o. the 5laKin5 which was a
dia5onally slopin5 one was to #e replaced #y a s?uare ed5ed one.
177. >n the period #etween a#out Fcto#er 2005 throu5h to a#out /une 20071 :243 or
48' en5a5ed a 8r 3ndrew &win5 to desi5n the water .eature over the "ourtyardH concern
was e9pressed .or instance at a site meetin5 held on 21 8arch 2007 as to his contractual
position. 3t an earlier sta5e1 '2" had #een instructed to en5a5e him #ut that instruction
was e9pressly withdrawn shortly therea.ter. *he water .eature was desi5ned and developed
#y :243 and 8r &win5 without any input .rom '2" and it was installed #y contractors
directly employed #y 48' or 8r and 8rs 8ackay in the period a.ter installation o. the
"ourtyard 0lidin5 doors.
17A. 0o .ar as can #e ascertained the "ourtyard 0lidin5 doors were delivered and .itted #y
a#out the end o. 2007 )with .inal cleanin5 and commissionin5 in late /anuary 2007+ and in
#road terms it was not appreciated that there was any pro#lem until early 200A. *he
8ackays o. their own volition had the ceilin5 access to the track and drive system .or the
"ourtyard 0lidin5 door to the 2i#rary in e..ect .illed in .or aesthetic reasons. >t was in or #y
3pril 200A that it was appreciated #y the new 3rchitect that the doors were catchin5 and
di..icult to open .ully. &ssentially1 !avi5ant instructed '2" to remedy the pro#lemsH '2"
took advice .rom the :uildin5 -esearch &sta#lishment which reported in 8ay and /une
200A and su55ested that the use o. tim#er1 the wei5ht o. the doors and the introduction o. a
s?uare as opposed to a slopin5 #ead caused or contri#uted to the pro#lems1 and the there
were =.undamental desi5n issues=. '2" did not consider that it was responsi#le .or the
pro#lems with these doors and did not comply with the 3rchitect@s instructionH the work was
omitted on the day o. ;ractical "ompletion. *he 8ackays have not had the de.ects
remedied.
176. *he 3rchitectural e9perts have reached a su#stantial measure o. a5reement on this
topic. *hey a5ree that the 2i#rary door can not #e opened and the ;ool door only with
di..iculty. *he #ottom .ramin5 mem#er o. the doors has de.lected )some 10,12mm at its
mid,point+ causin5 it to #ind on the .loor mounted #ottom 5uide pins or otherwise to #ind on
the .loor sur.ace. *he #rush ceilin5 strips on the underside o. the doors have #een adversely
a..ected #y these de.lections. *hey a5ree that the use o. a s?uare as opposed to a display or
slopin5 ed5e detail at the #ase o. the 5lass is unsatis.actory. *hey also a5ree that this as well
as the de.lection o. the .ramin5 mem#ers are desi5n matters. *hey do not .ind that there is
any material #ad workmanship or the use o. non,merchanta#le materials. *hey a5ree also
that the location o. the doors in a humid environment has #een a contri#utory .actor in the
propensity o. the tim#er to de.lect.
1A0. >t is there.ore necessary to consider to what e9tent1 i. at all1 '2" assumed desi5n
o#li5ations in respect o. the "ourtyard 0lidin5 doors. *here was no and certainly no clear
noti.ication #y 48' to '2" that the latter was to assume the desi5n responsi#ility .or
these doors. 3s a matter o. .act1 the key elements o. the desi5n1 such as the deployment o. a
wooden )as opposed1 say1 to a metal+ .rame1 were decided either #y :243 or #y :243 in
consultation with Dirman #e.ore the !:0 (13 speci.ication was issued #y :243 to '2" in
late 8ay 2005. *hat document itsel. as well as the :243 drawin5s re.erred to in it shows
that the key desi5n decisions had #een taken #y :243. *his speci.ication was only
in.ormally issued #y :243 to '2"H it was not accompanied #y an instruction on #ehal. o.
48' in e..ect noti.yin5 '2" that it was to assume desi5n responsi#ility as part o. the
"ontractor 4esi5ned ;ortion in respect o. the "ourtyard 0lidin5 doors. *he 3rchitect@s
instruction in 3u5ust 2005 re?uirin5 '2" to place the order with Dirman in relation to these
doors does not clearly identi.y that '2" was to assume desi5n responsi#ility.
1A1. *he .act that Dirman1 which was one only o. .ive asked to tender .or the "ourtyard
0lidin5 doors1 had provided some input in late 2004 or early 2005 #y way o. discussion and
interaction with :243 does not mean that the desi5n as it had developed prior to the
production o. the speci.ication in late 8ay 2005 was not that o. :243. 3s #oth e9perts
accepted1 architects o.ten talk to potential suppliers1 su#,contractors or specialist desi5ners
at a very early sta5e to help them develop their desi5n .or the particular item o. work.
:243 was not to know that Dirman would necessarily succeed in securin5 the eventual su#,
contract and1 indeed1 Dirman initially came third in the runnin5. >. :243 wanted somehow
to protect itsel. or indeed its client .rom any unsuita#ility or careless advice in what Dirman
may have proposed in those early initial discussions #etween the two o. them1 it could have
tried to secure either some warranty .rom Dirman or1 even1 re?uired Dirman to provide some
sort o. collateral warranty once it did secure the su#,contract.
1A2. Fne there.ore needs to consider whether the in.ormal issue o. the speci.ication or the
3rchitect@s instruction in 3u5ust 2005 as a matter o. interpretation or implication amounted
to a noti.ication #y the &mployer. >n my jud5ment1 it does not .or the .ollowin5 reasons:
)a+ *here is no evidence that the &mployer authorised1 consciously1 #y implication or
otherwise1 :243 to noti.y '2" that the "4; provisions should apply to the "ourtyard
0lidin5 doors. >. anythin51 there is evidence that :243 did not either seek or secure
such authority1 that evidence #ein5 the repeated attempts #y '2" to o#tain clari.ication
.rom :243 as to what were or were not to #e treated as "4; packa5es. >t is lo5ical to
assume that :243 either raised the issue with 48' or did not raise it. >. it raised the
issue with 48' and secured approval .or the "ourtyard 0lidin5 doors packa5e to #e
treated as a "4; one1 > in.er that :243 would have in.ormed '2"H i. it did not raise
the issue1 there is no reason why 48' would have thou5ht that it was necessary to do
anythin5 a#out it.
)#+ "ertain it is that 48' itsel. did not noti.y '2" that the "ourtyard 0lidin5 doors
packa5e was to #e treated as a "4; packa5e.
)c+ *here was a stron5 disincentive to :2431 C<* and 48' not to have noti.ied
'2" that the "ourtyard 0lidin5 doors and indeed the other packa5es were to #e treated
as "4; packa5es1 which was the clear and indeed correct perception that 48' would
have to pay additional monies to '2" .or the privile5e. *hese sums would have
included allowances .or additional ;> cover as well as speci.ic desi5n co,ordination and
desi5n and supervision o. the particular su#,contractors1 in this case Dirman.
*hrou5hout 20051 2007 and indeed 20071 there was a serious pre,occupation on the part
o. :2431 C<* and 48' to keep costs down i. at all possi#le1 with costs just .or Gnit
" perceived almost to have dou#led .rom the early #ud5ets.
)d+ *he 5ivin5 #y :243 o. the speci.ication to '2" at the end o. 8ay 2005 did not o.
itsel. amount to some sort o. noti.ication that the "ourtyard 0lidin5 doors or =0tructural
Class 3ssem#ly= document was to #e treated as a "4; noti.ication. *here is nothin5 on
the .ace o. the document tellin5 '2" that this was to #e the case: at #est1 the
speci.ication was simply to #e used #y '2" to secure tenders .rom potential su#,
contractors.
)e+ *he speci.ication on any account does not seek to trans.er an overall desi5n
o#li5ation onto the success.ul tenderin5 su#,contractor. >t re?uires only =completion= o.
the =detailed desi5n= #ut this must #e in accordance with :243@s desi5n drawin5s and
the speci.ication itsel.. *hus1 the su#,contractor can not .or e9ample choose to use a
.ramin5 material other than wood and it cannot deviate .rom the detailed dimensions set
out on those desi5n drawin5s. *here is a very real practical and en5ineerin5 di..erence
#etween completin5 the detailed desi5n1 which simply involves .inishin5 o.. what has
already #een )at least in relation to the "ourtyard 0lidin5 doors+ su#stantially desi5ned
#y :2431 and assumin5 a .ull desi5n responsi#ility .or everythin5 associated with such
doors. *he completion o. the detailed desi5n essentially means providin5 such desi5n
detail as is not already contained within :243@s desi5n drawin5s and the speci.ication.
:243 was to retain overall control in any event #y the approvals process1 which in this
case involved active decision takin5 such as in relation to the 5laKin5 #eads.
).+ *he re?uirement .or a specialist supplier or su#,contractor to provide .a#rication or
installation drawin5s is not an overall desi5n .unction. 0uch drawin5s are always taken
to mean drawin5s which ena#le the supplier or su#,contractor to .a#ricate or install. 3n
>M&3 .lat,pack .or1 say a cup#oard )usually+ contains an installation drawin5 which
shows how the cup#oard can #e put to5ether and then .i9ed to the wall. 3 .a#rication
drawin5 will show the people in the workshop or .actory the individual components and
.or instance their dimensions and how to put the components to5ether.
1A3. 8uch reliance is placed #y 48' on the su#,contractual arran5ements as #etween
'2" and Dirman in that it is asserted that1 as Dirman was invited #y '2" to ?uote and
'2"@s order to Dirman was .or the =desi5n= supply and .i9 o. the slidin5 doors1 '2" was
actin5 as i. it had #een noti.ied that it was to assume "4; responsi#ility .or the slidin5
doors. 0trictly speakin51 it does not matter what arran5ements were made as #etween '2"
and Dirman i.1 as is the case here1 there had #een no "4; noti.ication to or assumption #y
'2" o. overall desi5n responsi#ilty. *here is no plea o. some sort o. estoppel1 .or instance
#y convention. >t is wholly comprehensi#le however that '2" mi5ht wish to protect its
position just in case the "4; noti.ication came later )which it did not+. Fnly .ive weeks
#e.ore the order to Dirman1 '2" had written to :243 askin5 .or clari.ication 5enerally
a#out what packa5es were to #e su#ject to "4; status and there had #een silence .rom
:243 a#out it. *he re.erence to =desi5n= in the invitation and the order is also
comprehensi#le1 in contractual terms1 as #ein5 ?uali.ied and e9plained #y the speci.ication
which simply calls upon Dirman to =complete= the desi5n and1 thus1 Dirman was not #ein5
contractually re?uired to desi5n ab initio the slidin5 doors #ut1 merely1 to complete the
detailed desi5n in accordance with and su#ject to the constraints o. :243@s desi5n.
1A4. *here was and is no lia#ility on the part o. '2" in relation to the pro#lems with the
"ourtyard 0lidin5 doors. *he e9perts are a5reed that the pro#lems were caused #y and
attri#uta#le to what are essentially desi5n de.iciencies. *he primary de.iciency was the use
o. very heavy wooden .rames which de.lected under load1 in e..ect causin5 the doors to put
such pressure and load on to the #ottom 5uide channel arran5ements that they cannot easily
#e moved #y hand let alone #y the motor drive arran5ements. *he use o. the heavy wooden
.rames was the desi5n decision o. :243 which was a re?uirement which '2" and Dirman
had to comply with. 3s there was no overall desi5n responsi#ility on '2" in relation to the
"ourtyard 0lidin5 doors1 it is not in #reach o. contract with re5ard to the ina#ility o. the
doors to move readily or at all.
1A5. 3nother causative .actor1 althou5h not a primary one1 was the presence o. the .inally
desi5ned water .eature in the "ourtyard #etween the two slidin5 doors. 'hilst it was always
known that there would #e a water .eature1 what was not known was the precise nature and
dimensions o. that .eature. >n the result1 the whole o. the "ourtyard comprised a .looded or
totally immersed courtyard )#ar some steppin5 stone arran5ements+1 with sprayin5 water
jets. :243@s drawin5s .or the "ourtyard 0lidin5 doors do not actually show a water .eature
at all #ut instead indicate pavin5 with ed5e draina5e slots. 3s 8r Vom#ory,8oldovan has1
ri5htly1 said1 the immediate presence o. water permanently ri5ht #eside the slidin5 doors1
to5ether with the water jets and splashin5 caused #y them and heavy rain1 has increased the
amount o. moisture. *his1 he said1 also may well have #een e9acer#ated #y landscapin5 and
#alustrade works a#ove and around the "ourtyard )not on any account the responsi#ility o.
'2"+ and hi5h level works to the "ourtyard .acades a#ove the slidin5 doors and "ourtyard
5laKin5. *he decision #y :243 to replace the slopin5 5laKin5 #eads actually put .orward
sensi#ly #y Dirman with a s?uare one actually led to more moisture #ein5 permitted to enter
the wooden .rames with the result that the #ottom mem#ers will tend to have distorted more
than mi5ht otherwise have #een the case. 3s '2" had no overall desi5n responsi#ility1 it is
not lia#le .or the conse?uences1 contri#utory only thou5h they are1 in relation to the
enhanced level o. moisture at or close to these slidin5 doors.
1A7. *he pro#lems o. lack o. or restricted movement have #een e9acer#ated #y the lack o.
maintenance #y the 8ackays o. the motors and mechanisms. "orrosion has #een .ound on
the top track o. the pool slidin5 door and that su55ests that there has literally #een no
maintenance o. any sort .or years. 8r and 8rs 8ackay@s desi5n decision to close o.. any
access to the motor assem#ly .or the 2i#rary slidin5 door means that no maintenance can in
.act #e carried out without creatin5 a major hole in the ceilin5 o. the 2i#rary.
1A7. >. > had decided that there was any lia#ility on the part o. '2"1 > would have
decided that the appropriate1 reasona#le and proportionate remedial works were limited to
the re,use o. the e9istin5 slidin5 doors with the doors #ein5 adjusted #y usin5 the e9istin5
adjusta#le han5ers a#ove them to5ether with some minor related work as set out in
;ara5raphs 17.107 to 17.11A o. 8r Vom#ory,8oldovan@s .irst report with which1
essentially1 8r /osey a5reed under cross,e9aminationH 8r /osey accepted that takin5 out and
replacin5 the doors would not #e reasona#le1 al#eit that this was the solution put .orward #y
48' initially. *hese adjustments would raise the doors #y a su..icient num#er o.
millimetres so that in e..ect the doors would open and close without hindrance. *he costs o.
the adjustment solution are essentially a5reed at #etween B101000 and B1110001 as opposed
to the B651277 claimed. *he eventual settlement a5reement #etween 48' and the third
parties also precludes any additional recovery.
L&/1t !%$$
1AA. *he 2i5ht 'all is an illuminated 5lass screen o. wall and door panels that e9tends
the len5th o. the ;ool room. >t is a#out 2.7m tall and 15m lon5. >t separates the ;ool room
.rom the shower1 chan5in5 and toilet cu#icles #ehind. >t was intended to have li5ht #eamed
via li5htin5 heads .ed #y .i#re optic ca#les into its interior so that it provided a uni.orm 5low
o. chan5in5 li5ht. *he pool screens and doors comprise a composite construction o. an outer
skin o. 7mm thick sand,#lasted and acid,etched1 tou5hened 5lass1 a 2mm air,space1 a sheet
o. 3mm thick opal acrylic sheet1 a 2mm air space1 a 10mm thick sheet o. J;risme9I1 a 4mm
air space1 and an inner layer o. 7mm thick sand,#lasted/etched1 tou5hened 5lass1 and these
components are #onded to5ether at their perimeters #y the use o. a proprietary 2mm thick
adhesive tape. ;risme9 consists o. a clear acrylic panel which has a Odot,matri9@ pattern
screen printed onto its .ace. 'hen li5ht is applied to the ed5e)s+ o. the ;risme9 panel the
dot,matri9 pattern di..uses li5ht across its .ace1 the evenness o. which is dependent on the
desi5n o. the li5htin5 as well as on the detailed desi5n arran5ement o. the panel. ;risme9 is
commonly used .or si5na5e1 and .or architectural .eatures in retail and e9hi#ition desi5n
applications. *he e9perts are a5reed that the 2i5ht 'all was a novel concept .or a private
house and one with which most #uilders would have #een un.amiliar.
1A6. > accept the evidence o. 8r Vom#ory,8oldovan that the 2i5ht 'all was an
am#itious1 innovative and novel conceptH this was #roadly accepted #y 8r /osey. >t is clear
that the desi5n as it developed was essentially a prototypeH this had not #een developed in
advance o. construction or o. '2" #ein5 instructed to place the order .or it with Dirman.
*his is important #ecause1 whoever was responsi#le .or the desi5n1 it was developed #y a
process o. trial and error on site )which a.ter .our attempts still remained .lawed+. >t is
common 5round that on any count '2" had no desi5n responsi#ility .or the li5htin5 aspects
o. the 2i5ht 'allH &?uation was responsi#le. *he real issues here revolve around the e9tent1
i. any1 o. the desi5n responsi#ility o. '2" .or the structure o. the 2i5ht 'all.
160. *he 2i5ht 'all was not mentioned anywhere in the "ontract #etween the parties1
al#eit that it was identi.ied that there was to #e a swimmin5 pool in the #asement. >t was not
mentioned as a separate packa5e as late as 8arch 2005 in '2"@s letter dated 21 8arch
2005 to :243 which listed all the packa5es then known a#out. 8r 8ackay came up with
the idea havin5 seen somethin5 similar in a restaurant. >t is clear that '2" was unaware
what was 5oin5 to #e called .or in relation to the west end o. the swimmin5 pool area until
3u5ust 2005. *here was re.erence in an internal '2" e,mail dated 23 De#ruary 20051 an e,
mail dated 24 De#ruary 2005 .rom '2" to 02' and a letter 21 8arch 2005 .rom '2" to
:243 a5ainst ';301 to a packa5e #ein5 classi.ied as ODull 4esi5n T 0u#ject to 0"@ #ut that
packa5e was then #ein5 descri#ed as =Class 'alkway= which was not apt to descri#e any
2i5ht 'all1 which had clearly not in desi5n concept terms #e5un to emer5e at that earlier
sta5e. ClaKin5 was later to #e re.erred to as ';301".
161. :243 produced its 4rawin5s 2353 "/A00 and "/A013 .or the 2i5ht 'all on 31
3u5ust 2005 on which there was depicted a screen .or showers and toilets. *hey cross,
re.erred to an &lemental 4escription 0chedule dated 31 3u5ust 2005 and these were all
handed over to '2" shortly a.terwards. *he 0chedule descri#es the 2i5ht wall as
comprisin5:
JClass screen wall made up o. 12 mm white laminated 5lass1 20 mm void1 10 mm
;risme9 and 10 mm white laminated 5lass to rear1 all sandwiched into concealed
aluminium G,"hannel1 .rameless with concealed .i#re optic li5htin5 to top and #ottom
o. screen. :ottom and top G, channel to #e drilled with Amm holes at appro9imately
A00 mm )sic+ centres to line with ;risme9 5lass to detail.=
>t was to Jincorporate JDi#re Fptic li5htin5 to 2i5htin5 consultants speci.icationI and the
JDinishI was to #e J'hite 2aminated 5lassI. >t is clear that ;risme9 was speci.ied or
selected #y &?uation as appears .rom :243@s later e,mail dated 24 Fcto#er 2007 to
&?uation.
162. *he &lemental 4escription 0chedule also re.erred under the column J!:0 -e.I
a5ainst the 2i5ht 'all entry to J240/250I. *here is no para5raph 250 as such in the
0peci.ication 2401 merely a num#er o. para5raphs runnin5 .rom 250a to 250h1 all o. which
appear under the 5eneral headin5 O*ypes o. ClaKin5@. >t is accepted that there is nothin5 in
any o. them which is o#viously re.era#le to the 2i5ht 'all. 240 contained at ;ara5raph 103
J4esi5n and ;roduction -esponsi#ilitiesI which imposes a num#er o. o#li5ations on the
supplier1 includin5:
J"ompletin5 the desi5n and detailin5 o. the works and to provide complete
.a#rication/installation drawin5s1 .ull siKe rod/shop drawin5s as appropriate .or approval
#y the 3rchitect...
F#tain specialist calculations as part o. the completion o. the desi5n/detailin51 e.5. .or
su#mission to other parties and to ensure elements are .it .or their purpose. >n.orm the
3rchitect immediately o. any non,con.ormity...
O*he supplier and/or installer1 as appropriate1 shall #e re?uired to veri.y the 5lass
speci.icationH includin5 siKe1 thickness1 re#ate siKe and ed5e cover1 aspect ratio and
mechanical stren5th in relation to supported ed5es to ensure .it .or purpose...I
163. >t is the clearest in.erence that over the precedin5 weeks or possi#ly several months
:243 and &?uation had had discussions #etween themselves and possi#ly with specialists
to discuss the 2i5ht 'all and had reached decisions as to what was at least #roadly re?uired.
>t is likely that :243 had directly involved Dirman #ecause there was later durin5 the
tender period direct contact a#out desi5n and details #etween them. *here is no su55estion
that '2" was in any way involved in such investi5ations.
164. Fn 15 0eptem#er 20051 '2" invited tenderers to tender =.or the supply and .it o.
the 5laKin5= and it is clear that this invitation re.erred to the =0u#,"ontract *ender &n?uiry=
.or 5laKin5 which talked a#out the 0u#,"ontractor producin5 =workin5 drawin5s and ?uotes
to allow .or all costs in re5ard to desi5n development=H the attached =0u#contractor &n?uiry
-ecord= re.ers to various :243 drawin5s includin5 "/A00 and A013 and to the 240
0peci.ication.
165. 4urin5 the tender period there was e9tensive and direct contact #etween Dirman and
:243. Dor instance1 on 2A 0eptem#er 2005 Dirman sent direct to 4iana Cro#ler o. :243 a
proposed detail .or discussionH she sent #ack more details #y way o. a section1 tellin5
Dirman that Jthe top and #ottom need to #e drilled with holes to allow li5ht to permeate the
O;risme9@ when the door is in a closed positionI. Fn 27 Fcto#er 20051 Dirman provided a
#ud5et price only .or the rear 5laKed wall #ut said that it could not ?uote .or the .ront
screens as =the detail shown will not work=. >t arran5ed a meetin5 with :243 to discuss =an
idea which could work=. Dollowin5 that meetin51 Dirman su#mitted a ?uote on the #asis o. a
sample su#mitted to :243 consistin5 o. =aluminium top and $#ottom% railsPwith
$stainless% steel and milled out to allow the li5ht throu5hI. :y its tender report dated 24
!ovem#er 20051 the other tenderer )(aran+ havin5 declined to tender #ecause the work was
outside its area o. specialisation1 '2" recommended acceptance o. Dirman@s ?uote o. 10
!ovem#er 20051 which had #een in very simple .orm re.errin5 #rie.ly to =shower,chan5in5
room .i9ed screens1 doors and 4>N@s .or the sum o. B751750I and =-ear 5lass wall to
shower,chan5in5 rooms .or the sum o. B221250I. *he report re.erred to Dirman havin5 #een
Jworkin5 on the desi5n and $Nalue &n5ineerin5% options with :243I.
167. *he &lemental 4escription .or the swimmin5 pool was re,issued #y :243 to '2"
on 7 /anuary 2007H it still re.ers in the speci.ication column to =2 40/250=. Fn 2 De#ruary
20071 :243 issued its instruction 3>20A" to '2" to =place an order withPDirman .or the
supply and .ittin5 o. the .i9ed illuminated 5laKed screens1 doors1 division panels and rear
5lass wall to the shower/chan5in5 room within the pool area o. ;lot "=H this was to #e =in
line and in accordance withI Dirman@s ?uotation e..ectively o. 10 !ovem#er 2005.
167. *hat :243 was e9ercisin5 control over the desi5n process relatin5 to the 2i5ht 'all
is clear .rom its letter to '2" o. 17th De#ruary 2007:
J> discussed these screens with the interior desi5ner yesterday and we are tryin5 to
arran5e a meetin5 with &?uation 2i5htin5 on site with Dirmans. *he earlier that
&?uation can make is 10 am on 22
nd
De#ruary so > have set it provisionally .or their.
"an you 5et Dirmans to attendP
>t is not clear at the moment how this screen can #e supported1 and still allow the .i#re
optics to #e placed under the 5lass. 'e are lookin5 at possi#le solutions now1 as we are
aware that the screenin5 o. the pool is imminent.I
16A. '2"@s su#,contract order with Dirman was dated 2 8arch 2007 #ut it is not wholly
clear when Dirman accepted it. *he order was .or the Jsupply and .it )o.+ the .i9ed
illuminated 5lass screens1 doors1 division panels and rear 5lass wall to the shower/chan5in5
room within the pool area o. ;lot "I. J'2"@s en?uiry dated 15 0eptem#er 2005 and
associated documentation thereinI was said to .orm part o. the Frder. *he 0u#,"ontract ;re,
Frder 35reement at >tem 26 o. 0ection 3 records that Dirman is to #e contractually lia#le .or
the Jdevelopment o. desi5nI. >tem 40 however recorded that architects drawin5s were
needed and that there was Jnot enou5h in.o to #e a#le to start drawin5sI.
166. Fn A 8arch 20071 '2" wrote an important letter to :243 a#out the desi5n
responsi#ility .or the 2i5ht 'all:
J'ith re.erence to 3rchitect@s >nstruction 20A" and the appointment o. D3 Dirmans1
they have provided a pro5ramme .or the worksP$that% would 5ive a completion date o.
1
st
0eptem#er 2007. 3s this e9tends #eyond the e9tension o. time already 5ranted1 we
re?uire a .urther e9tension o. time to cover his work.
'e con.irm that the 3rchitect@s >nstruction is .or the supply and .ittin5 o. the screens1
and we would wish to con.irm .or the avoidance o. dou#t1 that neither Dirmans nor
'alter 2illy are responsi#le .or the desi5n element o. this workPI
*here was no reply o. any sort to this letter1 which su55ests that :243 a5reed. *hat is
con.irmed #y the 8anches@ attendance note dated 26 /une 2007 at which it was 5enerally
accepted Jthat no work had #een procured as a ";4 packa5eI )see Ceneral "hronolo5y+. >t
is .urther con.irmed #y the :243 handwritten comments on their copy o. the letter1 which
states =scheme still #ein5 desi5ned=.
200. *here was a su#stantial amount o. direct contact #etween Dirman )in particular 8r
3nderson+ and :243 and &?uation over the .ollowin5 months1 with details1 sketches and
other in.ormation #ein5 e9chan5ed #etween all three o. them. 3lthou5h o.ten1 i. not
invaria#ly1 '2" was copied in1 it is clear that '2" was not intended #y anyone to #e one
o. the other participants to participate in the process. *here is no dou#t that Dirman produced
to and .or :243 a num#er o. drawin5s and sketches in relation to the 2i5ht 'all .or
perusal1 comments and approval #y :243. *here is no dou#t that :243 took an active part
in this process and it is clear that Dirman sou5ht approvals .rom :243 at all sta5es. 3n
illustration o. this is in Dirman@s email o. 17 /une 2007 to :243:
J'ith re.erence to our dr5@s ;1137X,630 and 6311 sent to you .or
approvals/commentsPwhich were returned marked up with various commentsP
3lthou5h these dr5@s have #een 5iven O:@ status1 not all o. the issues/in.ormation had
#een resolved1 some in .act may #e impossi#le to achieve1 .or e9ample the 5ap o. 2 mm
indicated to the top < #ottom o. the .loors1 this has already #een pointed out several
times ver#ally1 doors cannot #e loaded onto the .loor sprin5s with these tolerances1
doors o. this type o. multiple construction cannot #e manu.actured within these
tolerances1 we would also very much dou#t1 .rom years o. e9perience within the
associated #uildin5 trades1 that the stone .inished .loorin5 to these areas can #e laid to
within 2 mm1 #earin5 in mind this would still only achieve Vero tolerance i. it were
possi#le1 we there.ore .eel this pro#lem will need to #e resolved #y your .i#re optic
su#contractors1 some o. the other issues that need answerin5 #e.ore we can .ully amend
our dr5@s .or construction1 manu.acture < installation or .urther approval are as
.ollows:,
1+ "on.irmation o. the -32 colourW
2+ 4oor handles1 .ull details re?uired1 these would not #e a#le to #e #onded to the ed5e
o. the doors as indicatedW
3+ 8etal cover strips to taped ed5es to the ;risme91 this needs to #e checked out1 i. the
tape is suita#le to accept this idea1 etc1 not very practicalW
4+ Dull details o. the shower controls1 that need to #e housed in the 0/0 section that we
are to provide1 this in.ormation was re?uested ver#ally several weeks possi#ly months
a5o.
5+ Dinalisin5 the actual .i#re optic situation1 adaptation etcW
3ll o. the a#ove may not #e all o. the issues1 #ut are the main ones that come to mind
immediately < must #e resolved #e.ore we can .inalise our dr5@s < even think o.
puttin5 into .ull manu.acture1 there.ore .eel that there is not any point in re,issuin5 our
dr5@s until we have all the .acts resolved1 in .act we need the dr5@s returned as more a
O"@ than a O:@ statusPI
'ithout witness evidence .rom :243 or Dirman1 it is di..icult positively to .ind that any o.
the matters complained o. #y 48' either historically or in the 2i5ht 'all as it was le.t at
;ractical "ompletion was the =.ault= o. :243 or Dirman or #oth.
201. :243 and &?uation certainly had the major role in controllin5 the li5htin5 side o.
the desi5n. *here are numerous e,mails and other communications #etween it1 &?uation and
a company called Gniversal Di#re Fptics which was assistin5 in the desi5n o. the li5htin5.
Dirman played no part in this aspect o. the matter #ut simply did what it was told in relation
to accommodatin5 the li5htin5 and .i#re optic desi5ns and speci.ications. >t is clear .rom e,
mails in at !ovem#er 2007 that Gniversal Di#re Fptics identi.ied a risk o. what is called
scallopin5 which is an irre5ular and non,di..use dispersal o. li5ht. >n an e,mail dated 13
!ovem#er 2007 the .irm advised :243 that it would #e di..icult to avoid or reduce this
pro#lem.
202. :y !ovem#er 20071 the desi5n was su..iciently advanced to ena#le Dirman to
manu.acture the screens and doors .or the 2i5ht 'all. *here .ollowed over the .ollowin5 14
months the provision o. what the parties have called .our =5enerations= o. the 2i5ht 'all.
203. :e.ore considerin5 the history o. the Dirst to Dourth Cenerations o. the 2i5ht 'all1 it
will #e help.ul i. > summarise my views as to whether and i. so to what e9tent '2"
assumed desi5n responsi#ility as #etween it and 48'. > have .ormed the clearest view that
it did not in any or any le5ally meanin5.ul sense do so. 8y reasons are as .ollows:
)a+ > repeat )mutatis mutandis+ what > said in relation to the "ourtyard 0lidin5 doors on
the compara#le issue. *hus1 there was no noti.ication #y 48' to '2" a#out "4; .or
the 2i5ht 'all.
)#+ *here can on any proper .actual analysis #e no reliance on '2"@s lists sent to
:243 in De#ruary and 8arch 2005 a#out the status o. the packa5es #ecause at that
sta5e the packa5e which was to #ecome the one under which the 2i5ht 'all was to #e
procured at that sta5e did not even relate to 2i5ht 'all #ut to a Class 'alkwayH the
2i5ht 'all does not appear to have #een considered then either #y '2" or :243 as
somethin5 which was or was necessarily to #e provided. *hat came later.
)c+ *he only o#li?ue way in which it is ar5ued #y 48' that a noti.ication o. "4;
status #ein5 trans.erred was made is on analysis #y the re.erence in the &lemental
4escription 0chedule dated 31 3u5ust 2005 issued #y :243 to J240/250I. >t is
common 5round that there is no part o. ;ara5raph 250 o. 240 which is o. any material
relevance. *he ar5ument there.ore 5oes that1 as a matter o. proper construction o. the
&lemental 4escription 0chedule1 :243 must have #een re.errin5 to 240 5enerally and
re.erences to the completion o. the detailed desi5n #y the su#,contractor. *he &lemental
4escription 0chedule was not issued as some sort o. instruction or indeed1 o#viously or
at all1 as a "4; noti.ication under the "ontract. *he .act that '2" sou5ht to incorporate
240 in its su#,contract with Dirman does not mean that the &lemental 4escription
0chedule is to #e treated as a "4; noti.ication.
)d+ *he need .or a clear "4; noti.ication should not #e considered to #e satis.ied i. one
has to try to scra##le around to .ind it in documents issued #y :2431 particularly
without any evidence .rom :243 as to what was intended1 and in a document in
particular which does not o#viously identi.y the re?uirement that 240 was to apply as a
whole. *he &lemental 4escription is not an instruction1 let alone a "4; noti.icationH it is
at #est a document in which :243 merely tried to descri#e the elements which it had in
mind .or the swimmin5 pool area.
)e+ *he only real evidence o. what :243 intended is that it did not intend to provide
any "4; noti.ication in relation to the 2i5ht 'all. >ts repeated and what must have #een
deli#erate i5norin5 o. a series o. letters .rom '2" seekin5 clari.ication as to desi5n
responsi#ility #oth in relation to all known packa5es and speci.ically to the 2i5ht 'all
points stron5ly #y in.erence to :243 takin5 a conscious decision not to provide any
such noti.ication. *he positive knowled5e that no such noti.ications had #een made is in
the 8anches attendance note later in /une 2007.
).+ *he .act that as such Dirman actually did actively participate in the development o.
the desi5n #oth #e.ore and a.ter 3>20A" was issued or even that '2" su#,contractually
retained Dirman to complete or develop the desi5n does not in.er or mean that there was
an e..ective or indeed any "4; noti.ication .rom 48' to '2". Fne must there.ore
not con.use Dirman@s active participation in the desi5n process with '2"@s contractual
responsi#ility to 48'. *hat active participation is comprehensi#le simply as a direct
and partial direct dele5ation #y :243 to Dirman o. a desi5n responsi#ility which1 in
contractual terms1 completely #y,passed '2".
204. *he Dirst Ceneration 2i5ht 'all was installed in !ovem#er 2007. *here were a
si5ni.icant num#er o. 5lass #reaka5es. :y their letter to '2" dated 17 !ovem#er 20071
Dirman said that:
='e write concernin5 the ;risme9 and 5lass composition .or the a#ove.
3s you are aware1 there have #een several panels that have #een #roken while stored on
site that have #een su#se?uently removedP
*hese #reaka5es however have #rou5ht to li5ht a pro#lem which we .eel needs to #e
addressed and that is important .rom a sa.ety point o. view.
"urrently the white laminated 5lass is only adhered to the ;risme9 #y means o. a hi5h
#ond acrylic ed5ed tape to the perimeterH there.ore it is not physically laminated to the
;risme9 material. *he 5lass has no structural stren5th1 its interlayer #ein5 the only sa.ety
.eature there.ore actin5 independently and not as a sin5le component.
>n our e..ort to reach the desired aesthetic appearance this important criteria has #een
overlooked. 'e have there.ore put a hold on the production o. replacements .or these
panels. *here are several options at the moment which we are investi5atin51 one o. these
involves the direct laminatin5 as mentioned a#ove1 and another is the possi#ility o.
chan5in5 the type o. 5lass #ein5 used.P=
205. *he .actual evidence su55ests that the panels lacked structural stren5th and sta#ility.
*his was clearly a desi5n de.iciency which was inherent in the desi5n as developed as
#etween Dirman and :243 and as approved #y :243. *here was no criticism #y the
4esi5n *eam o. Dirman. >ndeed it was discussed at a 0ite 8eetin5 on 2A !ovem#er 2007
with a minute recordin5:
J// $8r /oyce o. '2"% advised that they are e9periencin5 pro#lems with these special
5lass sandwich panels .ormin5 the ed5e lit screen wall at the rear .ace o. the pool area in
;lot ". *he 5lass was provin5 to #e more .ra5ile than e9pected and some units had
#roken while #ein5 handled the delivery to the site. // stated that Dirmans were not
ultimately responsi#le .or the desi5n o. the 5lass sandwich , its desi5n #ein5 mostly
driven #y the re?uirements o. the li5htin5 desi5ner. (e stated that there may have to #e
e9tra payment to cover the cost o. developin5 the desi5n .urther. 3 meetin5 has #een
arran5ed #etween :243/Dirmans/'2 on *hursday 11
th
to resolve this issue. :243
may want the 5lass element o. the desi5n checked #y 8alishev 'ilson when an
alternative solution is availa#lePI
8alishev 'ilson were the desi5ners retained #y 48' to desi5n the 5lass li.t. *hese
minutes were dra.ted #y :243 and there was no challen5e to the assertion that Dirman was
not responsi#le ultimately .or the desi5n. >ndeed1 when on 14 4ecem#er 2007 when '2"
su#mitted to :243 an e9tension noti.ication in relation to the conse?uences o. resolvin5 the
pro#lems with #reaka5es1 :243 did not respond in any way to the e..ect that the #reaka5es
pro#lems were the .ault o. '2".
207. 8r Vom#ory,8oldovan su55ested that the omission o. top and #ottom clampin5
sections1 called .or #y :243 in the previous e9chan5es #etween :243 and Dirman1 mi5ht
have had an e..ect on the .ra5ility o. the 5lass and that the inclusion o. the clampin5 sections
would have increased sti..ness o. the panels and there.ore increased their structural inte5rity
as a composite unit #ene.itin5 also .rom 5reater sti..ness o. its layers actin5 to5ether.
(owever1 he also said that whether this Jwould have entirely prevented #reaka5esI cannot
now #e known .or certain. > am satis.ied that his evidence on this is help.ul and lo5ical and
it must .ollow that the provision o. clampin5 top and #ottom would have #een #ound to
assist at least somewhat in the 5reater ri5idity o. the screen or door structure.
207. 'hatever the cause or causes o. the #reaka5es1 it is clear that it was or they were
attri#uta#le to desi5n de.icienciesH there is no su55estion o. #ad workmanship or #adly
manu.actured materials. &ssentially1 the pro#lem was that1 as desi5ned1 the units were not
#uilda#le in that they could not #e manhandled without #reaka5es and that is essentially a
desi5n de.iciency .or which '2" is not responsi#le.
20A. *he Dirst Ceneration units had to #e taken #ack to Dirman@s workshops and the
0econd Ceneration re,desi5ned and manu.actured. *he 0econd Ceneration 2i5ht 'all was
installed in De#ruary 2007. >t was an alternative composite panel desi5n which employed
sand#lasted1 tou5hened 5lass instead o. the white laminated speci.ication. Dirman was
actively involved in this desi5n process1 althou5h it is clear that :243 was actively
involved in considerin5 and approvin5 what Dirman put .orward. *he chan5es were in
relation to the structure and composition o. the wall itsel.. 3 1.2 metre hi5h sample was
produced #y Dirman on a#out 11 /anuary 2007 and approved #y :243 and /anine 0tone
)al#eit not #y 8r 8ackay1 who was not present at the inspection+ on 12 /anuary 2007. >n
reliance on that approval1 '2" told Dirman to 5o ahead with the manu.acture o. the 0econd
Ceneration. *he new 2i5ht 'all was then put into production on the #asis o. what had #een
approved.
206. Fnce installed1 the new 2i5ht 'all was .ound to lack the o#scurity re?uired #y 8r
and 8rs 8ackay. >n other words1 it was not considered su..iciently opa?ue to o#scure the
showers1 toilets and chan5in5 rooms which were located #ehind. *he pro#lem seems to have
#ecome apparent when some temporary illumination was provided #ehind the 2i5ht 'all.
*he actual or perceived lack o. o#scurity or lack o. opacity was1 i. anythin51 a .undamental
desi5n .law. *he .unctions o. the rooms #ehind had #een known since the outset1 and had
lon5 #een identi.ied on the 3rchitect@s drawin5s .or the area. *here.ore1 it was or should
have #een o#vious that the screen would have to provide su..icient o#scurity .or the rooms
#ehind.
210. *he de5ree o. opacity re?uired was in a very real sense however a matter .or :243
to decide. F#viously1 i. the 2i5ht 'all was completely transparent so that people within the
chan5in5 or other rooms could #e clearly seen1 one would have no di..iculty in attri#utin5
#lame to the desi5ner. (owever1 there was sand#lastin5 o. the 5lass and there was the
;risme9 within the sandwich o. the units which would inevita#ly have provided a de5ree o.
o#scurity. *he de5ree o. o#scurity was very much within the purview o. :243 as opposed
to Dirman.
211. :ev su55ested in an e,mail dated 12 De#ruary 2007 to :243 that there had #een talk
o. a 4mm opal or opa?ue sheet within the 2i5ht 'all panels. Fn 15 De#ruary 20071 :243
told '2" to suspend work on,site on the 2i5ht 'all and on 16 De#ruary 2007 '2" wrote
to :243 askin5 .or .urther instructions and an e9tension o. time to cover the suspension.
Fn 17 De#ruary 20071 there was a meetin5 #etween &?uation and :-43 upon which 8r
2eddra o. Dirman Jstum#ledI )as he put it in an email dated 17 De#ruary 2007 to '2"+ on
8r :ourke o. :243 and two &?uation representatives e9perimentin5 with di..erent types o.
opal acrylic to achieve 5reater o#scurity. 3t the site meetin5 on 20 De#ruary 20071 '2"
repeated that they were awaitin5 instructions and were told that1 althou5h :2431 &?uation
and :ev had a5reed on the remedial actions1 they were waitin5 .or these to #e approved #y
the clients. Fn 2A De#ruary 2007 at a meetin5 attended #y the 8ackays1 :2431 &?uation
and :ev1 8r 8ackay indicated that the proposed opal perspe9 interlayer was not approved
and 8r 2loyd 4avis indicated that other interlayers o. varyin5 opacity would #e tried out
and o..ered .or approval. *here was also discussion a#out how the application o. silk within
the construction would spread the .i#re,optic plumes o. li5ht. 3t a site meetin5 on 7 8arch
20071 8r 2loyd 4avis indicated that a report had #een received .rom a company called
2i5ht 2a# procured #y 8r 8ackay and he had responded to 8r 8ackay. (e indicated that
there was still disa5reement a#out opacity althou5h a perspe9 had #een selectedH '2"
asked in e..ect instructions to undertake works in this conte9t and 8r 2loyd 4avis would
esta#lish what the .inancial conse?uences would #e. 3 .ull hei5ht sample would #e re?uired
to review and approve and '2" would arran5e this once instructed to do so.
212. Fn 7 8arch and 4 3pril 2007 Mnowles wrote to '2" sayin5 that some B751000
amon5st other sums would #e withheld a5ainst the ne9t money certi.icates in relation to
what was said today the =de.ective= 5laKed screen in the pool area. *here was silence .rom
:243 as to whether '2" was in any way to #lame.
213. Fn or a#out 11 3pril 20071 '2" was told #y :243 that a particular perspe9 sample
had #een selected and the .ollowin5 day told Dirman a#out this and asked it to produce a .ull
hei5ht sample. *he sample was provided and on or a#out 17 3pril 2007 approved #y 8r
8ackay. Dirman was re?uired to remove the 5lass screens and manu.acture a5ain. Fn 1A
3pril 20071 '2" wrote:
J'e have a5reed to remove the 5lass units .rom site and return them to the .actory to
undertake additional works to the screens #y introducin5 a ;erspe9 interlayer $without a
.ilm% all in accordance with approved sample C0 412. *here was a su55estion that these
works should #e undertaken on site and althou5h this is possi#le .or reasons o. ?uality1
availa#ility o. space and e9pediency they must #e undertaken in their .actory. 'e have
however #een asked1 and have instructed Dirmans accordin5ly1 to undertake a .ull,siKe
sample on site which will #e availa#le .or inspection .or 25 3pril 2007.=
*he .ull siKe sample was installed on site on 25 3pril 2007 and on 27 3pril 2007. :243
issued its 3>441" instructin5 '2"/Dirman to proceed with the recti.ication works to the
pool screens. 3lthou5h the 3> was initially issued in accordance with "lause A o. the
"ontract1 it was su#se?uently re,issued )as 3>455"+ on 11 8ay 2007 under "lause 13 )as a
variation+ a.ter complaint was made #y '2". *his stron5ly su55ests that :243 did not
#elieve that '2" was in any way to #lame. 3nother instruction1 3>452"1 instructed the
installation o. stainless steel an5les to cover holdin5 the 5lass screens.
214. 3 tellin5 internal :243 e,mail was written #y 8r :ourke to 8r 2loyd 4avis on 2
8ay 20071 which was pre.aced with the words: =the whole thread o. desi5n responsi#ility is
a complete mess=. (e went on to say that the =&?uation drawin5s were useless as
construction drawin5s= and that J:243 have had to shoulder almost all o. the desi5n
coordination with pickin5 up all o. the detailed desi5n that no#ody else would touch=. (e
descri#ed what Dirman had tendered .or a =prototype=. (e attri#uted #lame )=joint and
several lia#ility=+ to :2431 /anine 0tone and &?uation .or approvin5 the less opa?ue
sample. (e re.erred to '2" as Jretractin5 any desi5n lia#ility at every pointI and that
=somethin5 as novel and comple9 as this $was% #ound to take a wron5 turn somewhereI. (e
J.ully admit$ted% $this% could pro#a#ly have increased our e9posure to lia#ilityP#ut >
#elieve that it was the only way o. movin5 the desi5n .orward to a sta5e where we have an
overall desi5n e..ect capa#le o. satis.yin5 the clientI. (e said that the =interjections #y :ev
et al have only served to completely sti.le the desi5n process=. (e went on to say that
Dirman had a Jstron5 case= .or the su55ested e9tra cost o. a#out B261000.
215. *herea.ter1 work #e5an on the *hird Ceneration. :y an email dated 27 8ay 20071
Dirman in.ormed '2" that they were Jcurrently splittin5 and re,assem#lin5 the screensI
which were Jscheduled to #e .itted durin5 week commencin5 11 /uneI. -einstallation did
indeed commence as planned on 11 /une 2007. (owever1 soon a.terwards1 on 22 /une 20071
:243 instructed '2" to stop the installation #ecause there was still visi#le Jscallopin5I o.
the li5htsH this was a non,di..used e..ect rather than a 5eneral spread o. li5ht throu5hout the
screen. :243 asked Dirman to e9periment with a di..erent tape and di..usion silk to see
whether they could improve the spread o. li5htH three Dirman operatives would work on the
e9perimentation. *he period o. e9perimentation took a#out 5 weeks. Fn 27 /uly 20071 8r
8ackay at a walk around meetin5 said that the outstandin5 works to the 2i5ht 'all were
re?uired to recti.y a de.ect .or which '2" was responsi#le. *he minutes do not su55est that
any o. the desi5n team voiced a5reement. Fn 30 /uly 20071 :243 issued a .urther 3>460"
instructin5 '2" to set the 5laKed screens 2 mm clear o. the li5ht source and to stick the silk
strips to the #ottom and top ed5es o. the ;risme9 panels. *he instruction also re?uired that
.ascia panels were to #e applied alon5 the top and #ottom o. the entire 5lass screen in order
to o#scure the worst o. the J.larin5= )which is otherwise Jscallopin5I+.
217. 3ll this work took until a#out 21 0eptem#er 20071 althou5h some o. the time was
taken up #ecause Dirman employees had #y this sta5e holiday commitments in 3u5ust.
8eanwhile1 there had #een an adjudication decision in which the adjudicator1 8r *ate1
decided on 30 /uly 2007 that 48' had had no justi.ication .or withholdin5 moneys a5ainst
certi.ied sums in relation to the 2i5ht 'all. :y 27 0eptem#er 20071 Mnowles who had #een
in the .ore.ront o. advisin5 8r 8ackay that sums could and should #e deducted .rom
'2"@s certi.icates up to that point advised 48' that :243 was in #reach o. contract in
relation to the desi5n o. the 2i5ht 'all.
217. 3t a#out this time1 it #ecame apparent that there were #lemishes visi#le in the 5lass
screens. >n order to esta#lish the cause o. these su55ested #lemishes Dirman returned one o.
the 5laKed screens to their o.. site .acility in order that it could #e disassem#led and
inspected. *his revealed only a limited num#er o. #lemishes on the .ront acid etches sur.ace
and these marks were a#le to #e removed usin5 a weak hydro.luoric acid solution. *here
were1 however1 concerns that the ;risme9 itsel. had a num#er o. scratches #eyond what was
considered to #e accepta#le tolerances. Dirman wrote to '2" on 17 Fcto#er 2007 .ollowin5
a visit to a specialist .a#ricator o. the ;risme9 and reported that it had =a dot matri9 pattern
screen printed onto the sur.acesI and that =due to the very nature o. this product it cannot #e
5uaranteed to #e .ree .rom de.ects and discrepancies=H this was contained in an e9tract .rom
the sellin5 speci.ication. *o the naked eye1 it wrote1 panels would #e accepta#le and in
accordance with the speci.ication #ut i. one lit each and every individual panel only two or
three out o. 1A panels would #e accepta#leH another pro#lem was noted to #e the need to
remove a low tack .ilm .rom each side o. the ;risme9 which could lead to handlin5 marks. >t
is clear that there were also some scratches which were unavoida#ly caused durin5 the two
additional re,.a#rication e9ercises involved in the 0econd and *hird Ceneration work
#ecause the panels had to #e disassem#led and the ;risme9 removed and then re,placed
within the assem#ly. 8r Vom#ory,8oldovan said that these scratches were e..ectively
unavoida#le even i. the work in the workshop was done with reasona#le care. > accept that
evidence as lo5ical.
21A. Dirman su55ested that the opal acrylic layer previously inserted should #e reversed to
sit on the side o. the ;risme9 that was .acin5 out towards the swimmin5 pool in order to
#etter o#scure the #lemishes evident. *his su55estion1 however1 was not accepted and new
;risme9 panels were su#se?uently manu.actured and supplied to Dirman .or insertion into
the 5laKed screens. Dollowin5 an instruction )3>455"+ .rom :2431 this re?uired1 once
a5ain1 the 5laKed screens to #e returned to Dirman@s o.. site .acility1 disassem#led and re,
assem#led with the new ;risme9 panel. *his .ollowed Dirman@s assem#ly o. a sin5le panel
.or inspection1 testin5 and approval #y :243 and &?uation. *he re,manu.actured )Dourth
Ceneration+ screens were then installed #etween mid,4ecem#er 2007 and late /anuary 200A.
216. :y 7 De#ruary 200A1 colour variations were identi.ied in these Dourth Ceneration
.i9ed 5laKed screens and doors with some panels appearin5 darker than others. 8r :ourke o.
:243 indicated in an internal e,mail o. 2A /anuary 200A that it was the responsi#ility o.
&?uation. *here was an e9chan5e o. e,mails on 7 De#ruary 200A #etween 8r 8ackay and
8r (owie with the .ormer accusin5 the latter o. lyin51 perpetratin5 a scam and tryin5 to 5et
him to pay .or his incompetence when 8r (owie had su55ested that the pro#lems were
attri#uta#le to desi5n pro#lems. 8r 8ackay ended up #y sayin5 that he was Jcatchin5 up
with your tactics and #elieve me > am a .earsome adversary when > want to #e. >n .act > want
you out o. my and my .amilies@ $sic% li.e and the idea o. curtailin5 this is very temptin5 #ut >
am determined to not let you 5et away with it.=
220. >t is apparent that there were a num#er o. possi#le .actors which could have caused
or contri#uted to this colour variation1 includin5 the amount and consistency o. li5ht passin5
into the 5laKed screens .rom the point,sources speci.ied and the de,#ondin5 o. the adhesive
ed5e tape #etween the ;risme9 and the 5lass layers o. the composite 5laKed panel
construction. *he 3rchitectural &9perts a5ree that the de,#ondin5 occurs as a conse?uence
o. .le9in5 o. the panels and the action o. the doors.
221. Fn 5 8arch 200A and shortly #e.ore they were dismissed #y 48'1 :243 wrote to
'2" hi5hli5htin5 the pro#lems with the tape1 the insu..icient ri5idity and the colour
variation. '2"@s position was that it had complied with its contractual o#li5ations and the
various 3rchitect@s instructions issued to them and that the pro#lems were attri#uta#le to
desi5n de.iciencies. '2" commissioned a specialist 5laKin5 consultant1 8r "olvin1 to
report which appeared on 1 3pril 200A.
222. Dollowin5 this1 there was essentially a stalemate #etween the parties with '2"
claimin5 that a su#stantial e9tension o. time was due. *he new 3rchitect1 !avi5ant1 was o.
the view that the 2i5ht 'all was de.ective and instructed '2" to recti.y. '2" was not
prepared to do so as it considered that it was not lia#le. "orrespondence went to and .ro with
no resolution. Fn 15 /uly 200A1 8r (owie o. '2" had a meetin5 with !avi5ant at which
the latter indicated that the 2i5ht 'all Jwould #e taken out o. contract=H it was a5reed that
the pro#lems raised desi5n issues. 8r 8ackay however decided that1 amon5st other thin5s1
the 2i5ht 'all should not #e omitted1 that #ein5 communicated #y !avi5ant@s letter dated 21
/uly 200A to '2". !otwithstandin5 this1 it was omitted on 14 3u5ust 200A1 since when no
remedial work has #een done.
223. *here are essentially .our de.ects said still to e9ist in the 2i5ht 'all1 that the 2i5ht
'all lacks ri5idity and doors .le9 more than they should1 that there is de,#ondin5 o. the
adhesive tape #etween 5lass and acrylic layers1 that certain cover plates are missin5 and that
there is inade?uate access to li5ht .ittin5s #ehind the 5lass claddin5 o. the rear walls within
the shower rooms. *he 3rchitectural e9perts a5ree that the .irst two are desi5n matters. *he
.ourth alle5ation is essentially also one o. desi5n. 3s .or the a#sence o. cover plates1 it is
likely that the '2" delivered such plates to site .or installation #ut they were not installedH
8r Vom#ory,8oldovan has seen that two o. them have #een used on site elsewhere. >t
seems that the a#sence o. the cover plates is likely to #e an incomplete part o. the work
rather than a de.ect as such )and indeed is pleaded as such #y 48'+H the evidence su55ests
that the cover plates were not .itted pendin5 an instruction .rom the 3rchitect in relation to
waterproo.in5 o. the .loor sprin5 #o9es and mechanisms1 which meant that the work could
not #e completed.
224. > am satis.ied that there was and is no lia#ility on the part o. '2" in relation to the
de.ects which are said to e9ist. >nso.ar as they involve desi5n de.iciencies )as they mostly
do+1 .or the reasons 5iven a#ove1 there was no relevant contractual desi5n responsi#ility
imposed on '2". *here is a complaint relatin5 to the access to the li5htin5 in the rear walls
which is that '2" should have warned 48' a#out the potential pro#lemH i. however there
was no desi5n o#li5ation1 there was no duty to warn a#out a potential desi5n de.iciencyH
indeed > accept 8r Vom#ory,8oldavan@s evidence that a warnin5 was not re?uired in
circumstances in which :243 had made it clear that they wanted a smooth .lush #acklit
5lass across the entire wall .ace which access panels would have interrupted and in any
event access could have #een provided .or what he terms lon5,li.e service elements #y
removin5 the relevant 5lass panel. >n relation to the cover plates1 48' #y its architect
omittin5 the work relatin5 to the 2i5ht 'all1 has e..ectively omitted the o#li5ation to
complete and there.ore '2" has no o#li5ation to complete this work and was not in #reach
o. contract prior to the omission #ecause it was awaitin5 instructions .rom :243 in relation
to some necessary prior work which had to #e done #e.ore the cover plates were .itted. *his
is in any event a very minor item.
225. >t also .ollows .rom the a#ove that '2" was not to #lame .or any delays associated
with the development throu5h its Dour Cenerations o. the 2i5ht 'all. 3ll the pro#lems were
associated with desi5n de.iciencies or with the need o. :243 and &?uation to develop the
desi5n o. this prototype development as it went alon5. *hat process involved trial and error
and the errors1 i. they can #e so classi.ied1 were in the desi5n .or which '2" had assumed
no contractual responsi#ility to 48'. *here is no lia#ility .or dama5es and1 even i. there
was1 48' has #een compensated .or it under its 0ettlement 35reement with the third
parties )see #elow+.
T1e L&ft
227. Gnlike the three precedin5 topics1 the li.t issues only relate to delay. !either party
contends that any delay #e5an to a..ect overall pro5ress until 2007. *here is no real issue
that '2" was responsi#le .or the desi5n which was desi5ned #y 8alishev 'ilson who were
specialist en5ineers in relation to the li.t sha.t and #y others .or the li.t itsel. 1 retained #y
02' on #ehal. o. 48' in !ovem#er 2004.
227. *he li.t sha.t enclosure is a prominent architectural .eature within the house. >t runs
up throu5h the centre o. the property .rom the #asement to the third .loor. *he li.t sha.t was
to comprise a sel.,supportin5 structure1 detached .rom the main staircase that surrounded it
on three sides. >t was to #e .ormed lar5ely o. 5lass and to house a 5lass li.t. *he ?uality o. its
desi5n and construction was hoped to #e commensurate with the hi5h ?uality re?uired o. the
house as a whole. *he li.t sha.t is 1.7 m wide #y 2.35 m deep and 20.32 m hi5h. *he
speci.ication re?uired that the 5lass panels carry the vertical load o. the enclosure1 with the
steel .rame providin5 lateral sta#ility.
22A. *he 0peci.ication prepared #y the &n5ineers re?uired the contractor to provide
.a#rication drawin5s )shop drawin5s+. *he intention thus appeared to #e that the en5ineers
would prepare the desi5n in .ull .rom which the specialist contractor was then re?uired to
prepare component part drawin5s so that they could #e machined and prepared .or assem#ly.
*he 5lass was to #e 5laKed into the structural openin5s .ormed in the stainless steel usin5
#lack silicone sealant manu.actured #y *remco. *he width o. the 5laKin5 was a#out Amm on
each side. *he .rame supportin5 the 5lass was 50 9 50 9 31 so the width o. the 5laKin5
channel was 44mm. *he thickness o. the 5lass was 2Amm1 leavin5 Amm on either side .or
silicone sealant 5laKin5 compound. 8uch o. the 5lass was simply silicone #onded into the
main structural openin5s. *he connections #etween .ramin5 mem#ers where o. #olted
construction. *he main horiKontal .rame was a rectan5ular rin5 #eam o. .lat steel 131 mm
wide #y 20 mm thick. >t had welded corners and would have had to #e li.ted into position as
a sin5le component. *he vertical components all came in prepared len5ths that ena#led them
to #e li.ted and .i9ed individually. *here were two joints at each corner )one #etween the
lower vertical and the rin5 #eam and one #etween the rin5 #eam and the upper vertical+.
226. *he li.t sha.t was su#stantially complete and handed over to the li.t installer in a#out
late /une 20071 althou5h there continued to #e a num#er o. issues relatin5 to the ?uality o.
the work. 0ome issues were hi5hli5hted in :243@s letter dated 27 0eptem#er to '2" such
as the .inishin5 o. the sha.t and metal work which was addressed #y '2" and its su#,
contractor and a5reed to #e satis.actory #y :243. *hese issues however1 #roadly1 seem to
have #een resolved #e.ore the end o. 2007.
230. :y the end o. 2007 48' had retained Mnowles and em#arked upon its strate5y o.
seekin5 to omit numerous items o. work1 to have Mnowles control and oversee particularly
:243 and to pressurise '2". >t is clear that at a#out that time 8r 8ackay #elieved that the
li.t provided1 architecturally1 was a =monstrosity=1 as he was to write later in an e,mail dated
4 8ay 2007 .rom him to the other directors o. 48' and MnowlesH he had completely
.or5otten a#out this and when he 5ave evidence he 5ave contrary evidence. >t is clear that he
was very unhappy 5enerally a#out the li.t. *he same can #e said a#out 8rs 8ackay who
wrote in an e,mail dated 11 De#ruary 2007:
J3nother disaster is the specially desi5ned li.t. >t is also poorly .inished1 with ru##er
showin5 throu5h unevenly1 the stainless steel ed5es have #een .iled down to 5et them
to meet1 rather ineptly1 you can see the .a#ric o. the #uildin5 throu5h the li.t 5lass and
ri5ht down the sha.t o. the un.inished #ottom. (ow could these issues #e dealt withW
P=
231. >t was in De#ruary 2007 that .urther speci.ic issues were raised .ollowin5 the
completion o. the li.t itsel. and the removal o. protective coverin5s on the li.t. 02' wrote to
8r :ates o. '2" on 21 De#ruary 2007 sayin51 amon5st other thin5s1 =the ?uality o. the
stainless steel installation to the 5lass li.t sha.t1 particularly in ;lot "1 is unsatis.actory=.
(aran Class1 '2"@s su#contractor .or the li.t sha.t1 had 5one into li?uidation shortly a.ter
mid,De#ruary 2007 and various relatively minor de.ects were noted at a client meetin5 on 27
De#ruary 2007.
232. Fn 1 8arch 20071 8alishev 'ilson sent an email to '2" makin5 .urther
complaints a#out the li.t sha.t1 sayin5H
JP >n our speci.ication we asked .or #ow in 5lass tolerances o. Y or , 2 mm. 0ome o.
the 5lass panels o#served were not complyin5 with this re?uirement. 'e #elieve that
the #ow is not due to the loadin5 #ut .a#rication or installation .ault. 0trictly speakin5
these panels should #e replaced.
'e have o#served that some o. the csk #olts were not done properly which may
compromise the stren5th or ri5idity o. the steel .rame especially under temporary
conditions )when the 5lass panel is #ein5 replaced+.P
0tructural silicone application around the perimeter o. the panels appears to #e o. low
visual ?uality and is su#ject to 3rchitectQs approvalP=
233. Fn 2 8arch 2007 :243 wrote to '2" statin5 that durin5 a site inspection on 27
De#ruary 2007 Jit #ecame apparent that there are certain de.ects to the 5laKed li.t sha.tI. 3s
a result1 :243 indicated that the enclosed interim certi.icate had #een adjusted to take into
account this de.ectH the total amount which otherwise would have #een allowed .or the
5laKed li.t sha.t would have #een B1331767.36. Fn 7 8arch 2007 a meetin5 was held to
discuss sna55in5 and outstandin5 works to all three properties *he meetin5 was attended #y
:2431 '2"1 and C<* )amon5st others+H :243 hi5hli5hted the .ollowin5 three main
issues with the li.t sha.t1 namely1 5rindin5 o. joints )worse on the landin5s+1 poor ?uality o.
mastic with silvery lines caused #y li5ht Jdi..ractin5I and 5lass #owin5. >t was however
reported that 8r 8alishev considered that the sha.t was 5enerally .it .or purpose and
compliant with the speci.ication. Fn 7 8arch 2007 Mnowles wrote to '2" sayin5 that the
.ull value o. the li.t work1 B13317671 would #e withheld #y 48'. *his was clearly an
a55ressive move1 which was pro#a#ly unjusti.ied 5iven #oth that 8r 8alishev considered
that the li.t was #roadly compliant with the speci.ication and that there had already #een a
reduction within the interim certi.icate .or what :243 and C<* #elieved was appropriate
.or the perceived li.t de.ects.
234. 3.ter 14 8arch 2007 :243 issued a sna55in5 report )wron5ly dated 14 De#ruary
2007+ which was sent #y email to '2" on 16 8arch 2007. !oted de.ects in the li.t 5lass
had #een circled and the marks transcri#ed on to a series o. site sketches o. each panel
which were attached to the report. 3mon5st other thin5s1 it was noted in the report that:
i. 3 2m strai5ht ed5e laid a5ainst the side o. the corner stainless steel #o9
sections indicated that the corner -(0 could #e as much as 2,3 mm out o.
verticalH
ii. *here was misali5nment o. some junctions and the linishin5
)5rindin5/polishin5+ had led to a noticea#le dip on some o. the jointsH
iii. 0everal 5lass panels were .ound to have a Jpronounced #ow outwardsI.
:243 recorded 4 mm o. outwards #ow as a di..erence o. level compared to
the adjacent -(0 #o9 sectionH
iv. 2ar5e runs o. the sealant on most o. the panels were e9hi#itin5 silver
streakin5 visi#le throu5h the ed5e o. the 5lass1 indicatin5 that the #lack
sealant was not .ully contactin5 the ed5es o. the 5lass nor penetratin5 the N
o. the ed5e o. the ;N: interlayer. *he result was that the ed5e o. the panel
was made to look uneven there#y detractin5 .rom the visual e..ect o. the
sha.tH
v. 0cratches on the inside and outside o. the 5lass panelsH and
vi. 2oose screws and a pro#lem with the #ulkhead at the top o. the li.t sha.t.
235. 3t a meetin5 #etween 8r and 8rs 8ackay1 C<* and :243 on 15 8arch 2007 8r
2loyd 4avis reported that '2" had #een asked to put .orward proposals to deal with the
pro#lems. '2" had instructed a su#contractor to improve the mastic joints and reported that
the 5lass scratches could #e polished outH '2" had su55ested that a cappin5 on the upri5hts
mi5ht #e a solution. 8r 8ackay indicated that he had ordered a survey o. the li.t sha.t .or
verticality and ali5nment.
237. *here was a pro5ress meetin5 on 20 8arch 2007 at which '2" reported that the
results o. its survey would show that the li.t sha.t was #uilt within vertical tolerance. '2"
a5reed that the silverin5/re.raction pro#lems with the mastic sealant were unsi5htly and also
a5reed to polish out any non,compliant scratches on the outside sur.aces o. the 5lass. '2"
also stated that it was considerin5 methods o. coverin5 the steel structure with cappin5. >t
was accepted that there was a #olted connection at the top o. the sha.t which was not
satis.actory and that it would correct this. >t was also reported that '2" had investi5ated
and considered the mechanics o. takin5 out the entire li.t sha.t and that this would take
#etween 7 to 6 months. '2" would not accept lia#ility .or the cost or time involved with
this. 8r 8ackay was to comment #y email dated 12 3pril 2007 that the cappin5 proposal
had some potential.
237. :y its letter dated 30 8arch 2007 to Mnowles1 '2"1 addressin5 the su#stantial
withholdin5 o. moneys #y 48'1 accepted that the mastic was not o. the re?uired standard
and said that they were Otakin5 measures to address this de.iciency.@ >t is also clear that '2"
accepted responsi#ility .or the scratches on the li.t sha.t and .or the #owin5 o. the 5lass.
&ssentially1 '2" made clear that it considered that the withholdin5 o. the entirety o. the
C<* valuation .or the 5laKed li.t sha.t1 which assumed that it had no value whatsoever1 was
=clearly incorrect=.
23A. >n 8arch1 3pril and 8ay 20071 '2" arran5ed .or its various su#contractors to carry
out much o. the remedial work. 3s reported at a walk around meetin5 on 23 3pril 20071 the
#owed 5laKed panels had #een replaced and the scratches on the outside o. the li.t sha.t had
#een polished. *he stainless steel trims had #een inspected #y :243 and .ound to #e
accepta#le as complyin5 with the speci.ication as had the joint couplers. *here was an issue
#etween the parties in relation to the masticH althou5h '2" accepted that the mastic
e9hi#ited a =mirrorin5 e..ect= which was neither aesthetically pleasin5 nor accepted #y the
8ackays and that some o. the mastic was o. a poor standard1 it #elieved that the silverin5 or
mirrorin5 e..ect was essentially an unavoida#le desi5n pro#lem attri#uted at least in part to
the impact o. the use o. 5lass. *his was recorded in a report dated 3pril 2007 .rom '2"
who had also #rou5ht in the Class and ClaKin5 Dederation to report. *he works which '2"
accepted responsi#ility .or were mostly put ri5ht in the .irst hal. o. 8ay 2007.
236. *he minutes o. the "lient 0ite 'alk 3round meetin5 on 23 3pril 2007 recorded )at
>tem 3.04+ that:
J'2" con.irmed that the #owed 5laKed panels have #een replaced and that the
scratches on the outside o. the sha.t had #een polished. C8 stated he is interested in
pursuin5 the #ronKe cappin5 option as now that the interior desi5n o. the house has
pro5ressed there is more #ronKe than stainless steel.PI
*he re.erence to the J#ronKe cappin5 optionI was a re.erence to a proposal which '2" had
made to over,clad the corners o. the li.t so as to conceal #oth the joints and also the mastic.
'2" had commissioned .urther samples o. over,claddin5 .or the #o9 sections so as to
conceal the mastic joint. 3t that sta5e1 '2" was seekin5 a .ormal instruction
acknowled5in5 the time and cost implications o. e9ecutin5 the works and the proposal was
not there.ore pursued.
240. Fn 10 8ay 2007 Mnowles issued a .urther withholdin5 notice and made the
.ollowin5 comments in relation to the li.t sha.t:
=*he 5laKin51 alloy trims1 joint couplers and mastic seals are de.ective. *he 5laKed
sha.t has #een valued #y the E0 at nil in the present Naluation and their
recommendation .or payment is nil1 hence there are no monies withheld a5ain in this
notice #ut emphasise1 .or clarity1 herein that the li.t sha.t is considered de.ective #y
your employer and no monies #e paid to you in respect o. this element.=
>t is clear that1 as 48' and :243 knew even i. not Mnowles1 much o. these complaints
had #een attended to e..ectively #y '2". 3nother similar notice was served on 1 /une 2007.
Fn 7 /une 20071 there was a "lient 0ite 'alk 3round meetin5 at which 8r 8ackay is
reported to have said that Jhe had had the li.t sha.t surveyed .or verticality and it was .ound
to #e within toleranceI. (e said that he would accept #ronKe cappin5. '2" su#se?uently
wrote to :243 on 11 /une 2007 statin5 that1 in response to the notice o. withholdin51 it
Jhad carried out a detailed dimensional survey1 which had proved that the 2i.t &nclosure
was .ully compliant with the "ontract 0peci.icationsI and that the survey had #een copied to
:243 #y e,mail on 4 8ay 2007 #ut no response had #een .orthcomin5. >t must have
#ecome apparent #y then i. not #e.ore that the total replacement o. the li.t and li.t sha.t was
simply not 5oin5 to #e re?uired.
241. :243 replied on 14 /une 2007 statin5 that that the issue o. the verticality o. the li.t
sha.t appeared to have #een resolved and su55ested that =this matter has now #lown up out
o. all proportion=. (owever1 there remained a num#er o. areas in dispute1 namely1 the .inish
to the stainless steel joints/couplers was said to #e unaccepta#le1 the #owin5 to the 5lass
panels had1 it was said1 not #een satis.actorily resolved and :243 remained o. the view that
the mastic was unsi5htly and that the .i9in5 detail at the head o. the li.t sha.t was
unsatis.actory. '2" wrote #ack on 27 /une 2007 su#stantially disa5reein5. '2"@s site
diaries record that its su#,contractor1 &a5le 8astics1 was carryin5 out some remedial works
to the li.t sha.t #etween 11 /une and 25 /uly 2007.
242. :243 wrote to 48' on 7 /uly 2007 indicatin5 that scratches had #een remedied1
and that one o. the two 5lass panels had #een recti.ied. *he pro#lem with stainless steel
joints could only #e overcome #y over,claddin5. *he silverin5 o. the mastic was to #e
e9pected #ut it was patchyH re,masticin5 had improved the situation. '2" had procured a
report .rom the :uildin5 -esearch &sta#lishment dated 11 /uly 2007 which concluded that
the appearance o. the sealant at the 5lass ed5e was a conse?uence o. the desi5n.
243. Fn 20 /une 2007 '2" re.erred the dispute to adjudication. Fn 30 /uly 2007 the
3djudicator issued his decision. (e decided that the value o. the li.t .rame should have #een
included in the previous interim certi.icate as it was not de.ective. (e .ound that scratches to
the 5lass had #een ade?uately addressed and any scratches e9istin5 on 1 /une 2007 were
minimal and insu..icient to justi.y withholdin5 o. the value o. the 5laKin5. (e .ound that the
5eneral .inish and appearance o. the alloy trims and joint couplers was not satis.actory as
they were not .i9ed or cut in accordance with the li.t sha.t speci.icationH he .ound that a
deduction o. B51000 .or this de.ault was reasona#le. *he sur.ace .inish o. the mastic joints
was 5enerally inconsistent and poor in places and the rear .ace o. the mastic had not #een
recessed as detailed. 3lthou5h he accepted the :-& report1 he .ound that B251000
represented a reasona#le sum in relation to what he .ound was a de.ective application o. the
mastic. >n total there.ore1 the adjudicator .ound that over B1001000 had #een wron5.ully
withheld.
244. '2" proceeded with some limited .urther mastic work to the li.t sha.t #ut #y 5
0eptem#er 20071 as evidenced #y a "lient 0ite 'alk around meetin5 on that date1 it was
envisa5ed that '2" would su#mit a proposal .or over claddin5. 3t another such meetin5 on
12 0eptem#er 2007 8r :ates o. '2" demonstrated some #ronKe claddin5. Fn 13
0eptem#er 20071 '2" made to 8r 8ackay a without prejudice proposal with re5ard to
over,claddin5. >t o..ered ).or .ree+ to over clad the li.t enclosure vertical steel hollows with
#ronKe claddin5 on the #asis that neither 48' nor '2" made any claim .or delay a5ainst
the other. >t was predicated upon the #asis that =irrespective o. the standard o. .inish
achieved to the joints1 you dislike the 5eneral appearance o. the e9posed mastic and
steelwork=. 8r 8ackay@s e,mailed response on the same day was the over claddin5 was in
principle accepta#le #ut he wished to preserve his ri5ht to li?uidated dama5es.
245. :243 wrote to '2" on 1A 0eptem#er 2007 statin5 that the =major item preventin5
the issue o. a ;ractical "ompletion certi.icate is the .act that the 2i.t 0ha.t has still not #een
#uiltPin accordance with the "ontract=. Fn 2A 0eptem#er 2007 8r 8ackay sent to 8r
:ates a dra.t letter )dra.ted #y Mnowles+ o..erin5 to resolve the matters in issue on the li.t.
Fn 2 Fcto#er 20071 8r :ates o. '2" wrote to 8r 8ackay o..erin5 that '2" would over,
clad the stainless steel .rame with #ronKe metal at its cost1 e9pressly acceptin5 that the
works would #e carried out in accordance with "lause A.4.3 o. the "ontract )and no
e9tension o. time would there.ore #e sou5ht #y '2" .or those 'orks+. *his was a5reed to
#y 8r 8ackay and the over,claddin5 work proceeded.
247. '2" placed an order with :assett and Dindlay 2td .or this over claddin5 work on 3
Fcto#er 20071 a ?uotation .or which had #een sou5ht a .ew days #e.ore. 3s 8r (owie
attested1 the work commenced on 11 Fcto#er 2007 and was .inally completed on 21
!ovem#er 2007H most o. this was completed #y the end o. Fcto#er 2007 #ut a dama5ed
piece o. over,claddin5 was re,.itted over several days leadin5 up to 21 !ovem#er 2007. Fn
27 !ovem#er 20071 :243 and 8r 8ackay con.irmed their acceptance o. the over,claddin5
work.
247. *here was much evidence as to whether the over,claddin5 work prevented or
restricted access to the .irst and third .loors whilst it was 5oin5 on. :y Fcto#er 20071 the
only means o. access to the upper .loors was #y way o. the staircase that went around the li.t
sha.t .rom the 5round to the third .loors. >t is undou#tedly the case that the over,claddin5
work primarily #etween a#out 11 or 12 Fcto#er and the end o. that month did somewhat
restrict access #ut it certainly did not prevent it. 8r (owie and 8r /oyce 5ave evidence to
this e..ectH 8r :artlett indicated that artists and tradesmen directly employed #y the
8ackays were workin5 on the upper .loors durin5 this period. *he clients and the 4esi5n
*eam were a#le to 5et access.
24A. >t is strictly speakin5 unnecessary to decide whether or not '2" was lia#le .or any
o. the de.ects which led to the need .or the over,claddin5. *his is #ecause '2" accepted at
the time that it would carry out these works at its own costs and as i. doin5 it pursuant to an
instruction re?uirin5 remedial works under "lause A.4.2 o. the "ontract "onditions1 which
necessarily implies that it was puttin5 ri5ht somethin5 which was its responsi#ilityH there
was to #e no e9tension o. time1 and indeed it is no part o. '2"@s "ase or evidence that it
was in any way delayed #y the need to do the over,claddin5 work. *he a5reement to do this
simply arose .rom '2"@s wish to draw a line under the li.t issues and1 althou5h a
si5ni.icant part o. its reasonin5 was that the over,claddin5 work resolved aesthetic or desi5n
o#jections which 8r 8ackay ).or which '2" was not responsi#le+1 another part o. its
reasonin5 was that there remained some mastic and other workmanship issues which would
#e di..icult to address.
246. 3s .or the de.iciencies1 such as mastic1 5lass scratches1 #owin5 panels and #olt
heads1 > am satis.ied that these were de.iciencies in workmanship on the part o. '2" and its
su#,contractors. (owever1 these were put ri5ht mainly in the period up to the adjudication
decision and they did not take an enormous amount o. time or resources to resolve. >t is
clear that 8r 8ackay either allowed himsel. or Mnowles to e9a55erate the e9tent1 impact
and scope .or the 2i.t de.ects #ut that is consistent with the adopted strate5y. 3 particular
and 5ood e9ample is the continued withholdin5 .rom '2" o. a sum representin5 the total
value o. the li.t and li.t sha.t works which was not simply unjusti.iedH it was a55ressive and
it must have #een known to 8r 8ackay certainly #y the adjudication and pro#a#ly well
#e.ore that the chances o. holdin5 on to the whole o. the retained sum was close to nil.
250. > will address the impact o. the li.t on delay in the e9tension o. time part o. this
jud5ment.
B%rr&.o$ Ce&$&n/.
251. *he ceilin5 .inishes to the ;ool (all and the "inema in the :asement o. ;lot "
incorporated illuminated ceilin5s which comprised two principal elements1 the .irst o. which
is an ela#orate li5htin5 installation .i9ed within a recess to the structural so..it o. the 5round
.loor a#oveH the intention was to provide di..used li5ht which chan5ed colour on a recurrent
#asis. *he second element is the J:arrisolI ceilin5 which is .i9ed #elow the li5htin5
installation. 3 :arrisol ceilin5 is essentially a suspended ceilin5 system consistin5 o. two
#asic components1 a perimeter track and li5htwei5ht ;N" mem#rane. *he aluminium track
is .irst installed to the line and shape that the .inished ceilin5 will take. Fnce the track is
installed1 lined and levelled1 the ;N" sheet )less than a millimetre thick+ is then laid out and
heated so that the ;N" sheet #ecomes worka#le and a#le to #e stretched. Fnce the ;N"
sheet has #een su..iciently heated it is then stretched and clipped into the perimeter track.
*he ;N" sheet then cools and ti5htens into its .inal shape1 tension and consistency. *he
;N" was a#out 50 mZ .or the swimmin5 pool area and somewhat less .or the "inema.
252. *here is no issue remainin5 as to whether there are any de.ects .or which '2"
remain responsi#le and no su55estion that '2" was responsi#le .or the desi5n either o. the
:arrisol ceilin5 itsel. or the li5htin5 a#ove it. &?uation was responsi#le .or the desi5n o. the
li5htin51 which proved to #e unsatis.actory or at least not accepta#le to 8r and 8rs 8ackay.
*o the e9tent that it .eatures in the delays1 it is only the work to the ceilin5s in 2007 5oin5
into /anuary 200A that is material.
253. :ecause the :arrisol ceilin5s were re5arded as J.ine .inishesI and suscepti#le to
dama5e and dirt1 it was a5reed that this would #e installed only a.ter dirty works to the ;ool
(all )such as the pool screens1 mastic to the draina5e channel and stone .loorin5 which
remained incomplete in De#ruary 2007+ had #een completed in order to prevent dama5e to
the :arrisol ceilin5. 0imilarly1 it was a5reed that the :arrisol ceilin5 to the "inema would #e
installed a.ter the completion o. 48'@s directly employed contractors )in particular 0ound
>deas+ had completed their works.
254. *he :arrisol ceilin5 to the "inema was not in the event installed until 24 8ay 2007
.ollowin5 the completion o. the dirty works in that room. :etween the date o. installation o.
this :arrisol ceilin5 to the "inema and the "lient 0ite 'alk 3round meetin5 on 7 /une 20071
concern was e9pressed in relation to the li5htin5 e..ect o. this :arrisol ceilin5 in that dark
lines appeared across the ceilin5. *his was due to the con.i5uration o. the li5hts a#ove the
:arrisol ceilin5. *he :arrisol "eilin51 as instructed1 was removed on 20 /une 2007 and the
li5htin5 re,desi5ned to address the pro#lem.
255. *his concern was also raised at the 7 /une 2007 "lient 0ite 'alk 3round meetin5 in
relation to the 5aps #etween the li5htin5 installed .or the :arrisol ceilin5 to the ;ool (all.
*he 5aps #etween the ends o. the .luorescent strip li5hts resulted in dark areas )or lines+
runnin5 perpendicularly to the direction o. the li5hts. &?uation asked '2" to have the
:arrisol su#,contractor to hold up a sample so that they could test the li5hts #e.ore the
ceilin5 was put in place. *here were pro#lems with 0ound >deas1 a .irm directly en5a5ed #y
48' to supply and install e?uipment in the ceilin5s and1 as recorded in an e,mail dated 22
/une 2007 .rom '2" to :2431 it was proposed that :arrisol should not complete their
installation until 0ound >deas had adjusted their e?uipment. *his work #y 0ound >deas took
some time1 until a#out 5 /uly 2007.
257. Fn 6 /uly 20071 3>47A was issued re?uirin5 '2" to remove all li5htin5 .ittin5s and
wirin5 to the cinema ceilin5H this involved '2" havin5 its electrical su#contractor1
!orstead1 do the workH this was chan5ed a5ain #y :243 on 11 /uly 2007 with chan5es o.
position o. the li5ht .ittin5s. *he :arrisol ceilin5 in the pool was installed on 20 /uly 2007.
:y 27 /uly 20071 there had #een continuin5 e9perimentation #y '2" with the li5htin5
e..ects in the pool hall ceilin5 and there continued to #e a stripin5 and shadow e..ect which
was not accepta#le to the client. 3 similar pro#lem in the cinema ceilin5 was also reported at
the "lient 0ite 'alk 3round meetin5 on 27 /uly 2007. Fn 27 /uly 20071 :243 issued
3>4A5" which instructed '2" to re?uest 0tretch "eilin5s )the installers o. the :arrisol
"eilin5+ to remove the :arrisol ceilin5 in the ;ool (all. *he :arrisol ceilin5 in the "inema
had already #een taken down on 20 /une 2007 )pursuant to 3>s 462" and 467"+ and was
reinstalled )althou5h not .or the .inal time+ on 2A 3u5ust 2007. 3 complaint was made a#out
the :arrisol ceilin5 material1 which was manu.actured in certain widths and was there.ore
jointed at the seams1 to the e..ect that the joints should have #een centralised. (owever as
'2" pointed out1 in an e,mail to :243 on 27 /uly 20071 there had to #e joints and there
had #een no speci.ication as to the position o. the jointin5H in e..ect this could not #e a valid
criticism.
257. 3lterations were re?uired a5ain to the li5htin5 in #oth the cinema and the pool. >n
3u5ust 20071 :243 issued variation instructions 3>s 4A51 4A71 461 and 462 as well as those
re.erred to #elow in relation to the :arrisol ceilin5s. -2: reported to Mnowles on 7 3u5ust
2007 that &?uation acknowled5ed this as =their .ault= and had =o..ered to put it ri5ht at their
cost=. ;ursuant to this concession1 &?uation itsel. provided si9 additional .luorescent #atons
to #e installed to the "inema ceilin5 and .or e9istin5 .ittin5s to #e relocated to replace si9 o.
the .ittin5s. *hese .ittin5s were still awaited on 15 3u5ust 2007. Fn 17 3u5ust 2007 3>46A"
instructed .urther li5htin5 revisions to the ;ool (all ceilin5. &?uation spent the whole week
commencin5 13th 3u5ust 2007 on the site seekin5 with various workmen to resolve
shadowin5 in the pool hall ceilin5. 3>513" on 20 0eptem#er then instructed .urther chan5es
to the ;ool (all ceilin51 chan5in5 the li5hts to 2&4 rather than .luorescent in order to
achieve a Jtwili5htI e..ect.
25A. 3t the "lient 0ite 'alk 3round meetin5 or 5 0eptem#er 20071 a pro5ramme .or the
additional works to the pool ceilin5 was identi.ied as #ein5 a minimum o. si9 weeks1
.ollowed #y the need .or the ceilin5 to #e inspected #e.ore the :arrisol ceilin5 and was re,
.i9ed. *here was no su55estion that this pro5ramme was unreasona#le. 8ore chan5es to the
li5htin5 were instructed #y 3>513" dated 20 0eptem#er 2007 #ased on a directive received
#y :243 on 16 0eptem#er and revisions to &?uation@s desi5nH work on the new .ree issue
li5htin5 had #een suspended #y 8r 8ackay and &?uation on 16 0eptem#er 2007. :etween
20 0eptem#er and 4 Fcto#er 2007 two types o. sample li5htin5 at either end o. the
swimmin5 pool were installed. Fn 20 0eptem#er 20071 '2" made it clear it could not
complete the works in the cinema until the ceilin5 li5htin5 was resolved.
256. Fn 10 Fcto#er 20071 8r 8ackay instructed .urther alterations to the li5htin5
installation in the pool hall :arrisol ceilin51 these #ein5 con.irmed #y '2" in writin5 on 15
Fcto#erH a sample o. these alterations were inspected on 22 Fcto#er 2007 and approved #y
:243 in 3> 527"H this instruction re?uired '2"@s su#,contractor to carry out additional
and varied works to the pool hall ceilin5 usin5 .ree issue 2&4 li5htin5 provided #y
&?uation. Fn 7 !ovem#er 20071 '2" was instructed #y -2: in e..ect to permit the pool
ceilin5 works to #e done #y a directly employed contractor #ut this was rescinded. *he .inal
work was .inished on 27 !ovem#er 2007 and1 the .ollowin5 day1 3>547" instructed '2" to
prove the new li5hts #y runnin5 them .or 100 hours over a period o. 1 week. *his had #een
done #y 5 4ecem#er 2007. *he :arrisol ceilin5 was .itted a5ain.
270. 3t a "lient 0ite 'alk 3round meetin5 on 5 4ecem#er 20071 it was reported that the
pool :arrisol ceilin5 was dama5ed. 3t a similar meetin5 a week later1 it was reported that
:arrisol did not accept responsi#ility as all reasona#le care was taken when it dismounted
and reinstalled the ceilin5H it would not place the ceilin5 without an instruction. 3>551 was
issued to this e..ect a.ter the meetin5. :arrisol@s position was justi.ied on the #asis that the
ceilin5 material had #een taken up and down on a num#er o. occasions and it simply and
unavoida#ly 5ot somewhat stretched as a result and that :arrisol had acted with reasona#le
care. 3>552" also issued a.ter the site this meetin5 on 12 4ecem#er+ instructed !orstead to
install the newly speci.ied 2&4 li5hts to the "inema. *his work was carried out #etween A
and 2A /anuary 200A. :y a#out this time the ceilin5s in #oth the pool and the cinema so .ar
had #een completed1 they were demonstrated to and accepted #y 48'.
271. > am satis.ied that1 whatever the impact on overall pro5ress1 the :arrisol ceilin5 and
related electrical works a#ove1 in #oth cinema and pool hall1 were materially delayed #y late
instructions and variations #etween /uly 2007 and the end o. /anuary 200A. *his was mostly
attri#uta#le to the need constantly to chan5e and adjust the li5htin5 and the li5htin5
con.i5urationsH it was unnecessary to decide whose .ault this was on 48'@s side #ut
certainly the evidence stron5ly points to &?uation to a lar5e e9tent. *here was never any real
su55estion that '2" was responsi#le .or the delays involved in securin5 completion o.
these two areas o. work.
T1e St&n/r%0 Door.
272. *he 0tin5ray doors were dou#le doors which provided access .rom the &ntrance (all
into the 4rawin5 -oom and the Mitchen/Damily -oom. *he hei5ht o. the doors is
appro9imately 3.7m. *he terminolo5y o. Istin5rayI doors was used to descri#e the te9ture
and .inish o. the doors1 which are intended to resem#le the skin o. a stin5ray. *he stin5ray
.inish was to #e achieved #y .irst cuttin5 to siKe 12mm 84D panels which are then .aced
with #ronKe claddin5. *he #ronKe claddin5 was to #e sent o.. site to a company #ased in
Creenwich called :ased Gpon to #e .inished with the Jstin5ray .inishI which was applied
o..,site. *he .inished stin5ray panels were to #e positioned into a #rass trim .rame .i9ed to
the door #lanks. >n order to .orm the 84D panels it was .irst necessary .or the #rass trims
and other ironmon5ery )such as pull handles and ironmon5ery+ to #e applied to the door
#lanks .or site measurements to #e taken. *he 84D panels were then sent o.. site to #e cut
to siKe #e.ore havin5 their stin5ray .inish applied.
273. *here are two areas o. issue relatin5 to the 0tin5ray doors1 delays and de.ects. >n
relation to delays1 '2"@s pleaded case is that .irstly1 .ollowin5 the installation o. the
0tin5ray .rames and doors #etween !ovem#er 2007 and /anuary 20071 delays occurred to
the .ormin5 o. the 84D stin5ray .inished .ace panels due to the late supply o. .ree issue
#ronKe an5les on 13 /uly 2007 which .ormed the .rames .or the 84D stin5ray panels.
0econdly1 there was a delayed start #etween 13 /uly 2007 and A 3u5ust 2007 o. the initial
cuttin5 and temporary installation o. the door .ace panels and the #ronKe an5les until all the
other components )includin5 the leadin5 ed5e an5les and door handles+ had #een delivered
to 3dams1 '2"@s su#,contractor. *hirdly1 the initial cuttin5 and installation o. the door .ace
panels1 #ronKe an5les and other components took 7 weeks #etween A 3u5ust 2007 and 21
0eptem#er 2007. Dourthly1 the period .or the o..,site application o. the 0tin5ray .inish to the
84D .ace panels took 7 weeks #etween 21 0eptem#er 2007 and 26 Fcto#er 2007. !e9t1
installation o. the 0tin5ray .inished 84D .ace panels was delayed due to the late
con.irmation o. an approval sample o. the patinated leadin5 ed5e an5le and desi5n o. the
doorstops #etween 26 Fcto#er 2007 and 3 4ecem#er 2007. *he on,site installation o. the
stin5ray .inished 84D .ace panels then took 2 weeks #etween 3 4ecem#er 2007 and 1A
4ecem#er 2007. Dinally1 it is said that the installation o. the door handles was prolon5ed
.ollowin5 the completion o. the stin5ray .inished door panels due to the late supply to '2"
o. the .ree issue adhesive re?uired to .i9 the door handles and #ack plates #y 7 weeks
#etween 1A 4ecem#er 2007 and 25 /anuary 200A.
274. >n 8arch 20071 /0> issued drawin5s showin5 the concept desi5n o. the doors and a
schedule o. .inishes. 3 *ender ;ro5ress 8eetin5 was held on 16 8ay 2007. *he purpose
was to deal with pro#lems with the desi5n and detailin5 o. the doors1 so as to allow 3dams
to .ully price the packa5e. >n 8ay and /une 2007 :243 provided '2" with tender
in.ormation .or the doors. Fn 2 /une 2007 :243 issued 5eneral layout and door detail
drawin5s .or construction. Fn 7 /une 2007 :243 asked '2" to provide a ?uote .or the
door packa5e and the tender documents were sent to 3dams1 who on 22 /une 2007 ?uoted
.or the supply and installation o. the doors1 .rames and ironmon5ery. 3 22 week pro5ramme
.rom the order was identi.ied #y 3dams1 al#eit not as part o. its ?uotation1 this #ein5 set out
in '2"@s tender reportH this pro5ramme le.t #lank the installation o. the ironmon5ery as
Jdelivery details $are% awaited .rom 8anu.acturerI.
275. Fn 14 /uly 2007 :243 issued an instruction )3>30A"+ to '2" to place an order
with 3dams .or the Jsupply and installation o.I the doors1 .rames and ironmon5ery1
includin5 the 0tin5ray doors. Fn 16 /uly 20071 '2" issued a site instruction to 3dams to
supply and .it the doors1 .rames and ironmon5ery. Fn 21 /uly 20071 '2" wrote to :243
with an e9tension o. time noti.ication in e..ect .or the late issue o. 3>30A" sayin5 that the
completion date .or the 0tin5ray doors #ased on the late receipt o. the instruction was now
11 4ecem#er 2007. *he su#stance o. this letter was never challen5ed #y :243.
277. *here remained issues a#out outstandin5 in.ormation relatin5 to the doors and
ironmon5ery. *his was con.irmed1 .or instance at the site meetin5 held on 25 /uly 2007
when :243 con.irmed that outstandin5 elements would #e clari.ied later that day.
*hrou5hout 3u5ust 20071 48' was decidin5 whether to arran5e .or the supply o. the
ironmon5ery itsel. and there was uncertainty as to what the ironmon5ery would #e. *his was
re.erred to in '2"@s report .or the site meetin5 on the 22 3u5ust 2007 )=>ronmon5ery to
plot " joinery remains unresolved=+H the report went on to say that 3dams was waitin5 .or
approval o. certain ironmon5ery details #ut that those items were on an e9tended delivery
and that there.ore doors would la5 well #ehind the installation o. other joinery. 3t the site
meetin5 on 5 0eptem#er 20071 it was reported without demur that '2" was =awaitin5
instruction re5ardin5 plotP" ironmon5ery. (o..mans has issued spec to $:243 and 02'%.
:243 to revise instruction.= (o..manns )or J(FDI+ was to #e the supplier. >ronmon5ery
was a5ain reported as somethin5 likely to a..ect pro5ress in '2"@s report .or the site
meetin5 a .ortni5ht later. 3t that meetin51 it was minuted that the joinery ironmon5ery was
still to #e approved #y /0> and the current plan was =.or this ironmon5ery to #e post .ittedI.
277. :y the site meetin5 o. 3 Fcto#er 20071 it was con.irmed that all door handles were to
#e omittedH it was at a#out this time that 48' decided that it would procure all the
ironmon5ery .or the 0tin5ray doors. 0omewhat later1 pro#a#ly #y 4ecem#er 20071 it was
resolved #y 48' that it would issue such ironmon5ery to 3dams1 to .it to these doors. 8r
/oyce said in evidence that 3dams@ .a#rication drawin5s were Jonly a#le to #e issued on 17
!ovem#er 2007I *he reason 5iven was Jprotracted desi5n development and chan5es to the
door panel siKes.I 'hen asked a#out it in cross e9amination1 8r /oyce said that he thou5ht
the panel siKes chan5ed in siKe and num#er #ut was una#le to provide any .urther detail.
'hen it was put to him that there was little or no documentation evidencin5 what he was
su55estin51 and that i. it had #een causin5 a si5ni.icant pro#lem one mi5ht have e9pected to
see letters or emails makin5 that known1 he only said that Jthere was a lot 5oin5 on at this
timeI. "ertainly1 there was uncertainty a#out ironmon5ery .or the 0tin5ray doors1 not only
as to whether 3dams was to procure it #ut also as to what it was to #e.
27A. Dor reasons within their control1 48' and its 4esi5n *eam #etween them were
una#le to con.irm what the speci.ication .or the door .urniture and handles .or these doors
would #e. 3s 8r /oyce said in his .irst 'itness 0tatement )upon which in this respect he was
not e..ectively challen5ed+1 '2" could not assem#le the 0tin5ray doors without the .ree
issue materialsH this was #ecause the ironmon5ery #ack plates1 #ronKe an5les and #rass
division strips were re?uired in order to work out the e9act len5th and dimensions o. the
84D panels #e.ore they could #e individually cut and dry .itted #e.ore #ein5 sent o.. site
.or the .inish to #e applied. *his was well understood #y :243 as is evidenced #y its
internal e,mail o. 24 3pril 2007. *he door .rames and #lanks .or #oth doors were
manu.actured and installed #y 24 /anuary 2007.
276. Fn 1 /une 20071 '2" wrote to :243 sayin5 that '2" could not complete the
0tin5ray doors .or a num#er o. reasons includin5:
J4rawin5 -oom < Mitchen main doors client .ree issue #ronKe ironmon5ery and
.eatures are still awaitedH delivery was e9pected 21st 8ay. *he 'orks production slot
has #een missed1 and a new time reservation will need to #e made #ut will #e lon5er
than that currently advisedI.
*his was not challen5ed #ut someone o#viously chased up 48'@s suppliers #ecause some
o. the ironmon5ery was delivered #y courier on A /une 2007. &i5ht o. the an5les supplied
were too short and the #ronKe division strips were .lat and twisted and not what was re?uired
#y the drawin5s issued to 3dams. *he #ack plates were only delivered to site on 27 /uly
2007 and the correct #rass an5les on 17 3u5ust 2007. 0ome chan5es to the desi5n and shape
o. the 84D .inished panels were instructed #y 48' throu5h /anine 0tone in /uly 2007.
'hilst the 0tin5ray doors had #een desi5ned #y :243 to open in one direction only1 8r
8ackay made it clear in mid 3u5ust that he wished to consider the doors openin5 #oth
waysH it was only on 22 3u5ust 2007 that he indicated that he was prepared to accept the
ori5inal desi5n intention. :etween mid,3u5ust and the third week in 0eptem#er 20071
3dams marked up and cut the 84D panels which were to #e .i9ed adjacent to the #ack
platesH these had to #e .i9ed to the door #lanks.
270. *he 84D panels were then sent to :ased Gpon in Creenwich to have the 0tin5ray
.inish applied which was done #y 26 !ovem#er 2007. *he ne9t step was .or the .inished
panels to #e permanently installed. (owever this was delayed #ecause :243 .ailed to
approve the sample o. patination o. the leadin5 ed5e an5les until 31 Fcto#er 2007 and
#ecause it was decided #y 48' :. desi5n team that doorstops needed to #e provided to
prevent or limit .riction dama5e to the ed5es o. the hin5es to the doors. '2" reported
without demur at a "lient 0ite 'alk 3round meetin5 on 7 !ovem#er 2007 that the top
panels to the 0tin5ray doors could not #e .i9ed until the door stops were in place. :ev
reported that a desi5n had #een priced and that once client approval was o#tained the
manu.acturin5 could commenceH he was instructed to issue '2" with the relevant details.
271. *he detail .or the door stops was sent to '2" on 15 !ovem#er 2007 and .inally
resolved #y /0> #y 21 !ovem#er 2007. (owever1 the installation o. the panels was still held
up #ecause the door stops to #e delivered #y others were not so delivered until A /anuary
200A. (owever1 the 0tin5ray .inished 84D panels installation took place #etween 3 and 1A
4ecem#er 2007. (owever1 the door handles could not #e installed #ecause '2" was not
issued with the necessary adhesive or the speci.ication o. .i9in5 the .ree issue door handle
plates or an elevation showin5 the door handle hei5hts. *his issue was raised at a meetin5 on
5 4ecem#er 2007 #ut the adhesive tape was only .inally issued to and received #y '2" on
20 4ecem#er 2007. *he installation o. the doors could only #e completed #y 25 /anuary
200A #ecause the .ree issue throu5h #olts .or the door handles were only delivered .inally in
/anuary 200A.
272. > am satis.ied that1 whatever the impact on overall pro5ress1 the 0tin5ray doors work
was materially delayed #y delayed delivery o. .ree issue ironmon5ery1 late instructions and
variations #etween /anuary 2007 and the end o. /anuary 200A. *his was mostly attri#uta#le
to the decision on the part o. 48' to procure the ironmon5ery itsel.1 delays #y the 4esi5n
*eam to secure earlier delivery o. the ironmon5ery than was achieved1 delays in the
provision o. in.ormation1 and chan5es #ein5 made or considered. 35ain1 it is unnecessary to
decide whose .ault this was on 48'@s side #ut certainly the evidence stron5ly points to /0>
and 48'@s ironmon5ery suppliers to a lar5e e9tent. *here was never any real su55estion
that '2" was responsi#le .or the delays involved in securin5 completion o. these two
doors.
273. *here is a complaint #y 48' in its "ounterclaim a#out the .inish. *he e9pert
architects@ a5reement is as .ollows
J14.1 *he #ronKe .inish to the stin5ray door handles and .aceplates is poor and uneven.
>t is understood that this ironmon5ery was .ree issued #y 48' to '2".
14.2 *he cause is unclear1 #ut it appears to have occurred prior to ;ractical "ompletion.
14.3 *he remedial works in relation to the doors will involve takin5 the doors down and
sendin5 down to a patinator/.inisher to have the .aceplates and handles made 5ood P
$and%to have the handles and .aceplates removed and sent to a patinator .or re,
patination.I
3 protective .ilm was applied to the units durin5 the works. 'hen the .ilm was removed1 it
was .ound that it had contaminated or dama5ed the #ronKed .inish o. the ironmon5ery. 3n
unsuccess.ul attempt was made to clean and re,.inish the sur.ace.
274. 48'@s case in relation to the stin5ray doors is that parts o. the ironmon5ery are
missin5 )linkin5 strips+ and other parts are now loose1 that ironmon5ery was not le.t clean or
in the speci.ied condition and that metal decor strips have come loose or are inade?uately
.i9ed. *he sum claimed in respect o. remedial works is B1A107A.12.
275. (3D was the supplier directly en5a5ed #y 48'H patination was re?uired to the
ironmon5ery #ut .or reasons #est known to itsel. (3D was not prepared to do this work at
least on site and so it was that 3>504" was issued to '2" #y :243 on 7 !ovem#er 2007
.or its su#,contractor1 :assett and Dindley1 to do this workH this was done a .ew days later.
*here was then discussion as to how the door handles and plates were to #e a..i9ed. *here
was a .ree issue to '2" #y (3D o. adhesive tape )=8illionaire@s tapeI+ on 20 4ecem#er
2007 which was then used #y 3dams to .i9 the handles and .aceplates. *he adhesive when
removed seems likely to have le.t marks on the ironmon5ery. >t seems likely that '2"
attempted to remove the marks.
277. *he amount claimed #y 48' .or this alle5ed de.ect is B1A107A.12 #ut the ?uantum
e9perts@ .i5ures are that .or 48'@s remedial work case )removal o. doors .rom site .or re,
patination B101070.20 )8r ;ontin++ and B61355.50 )8r (unter+ and on '2"@s remedial
work case )remove the ironmon5ery alone .or re,patination B31360.67 )8r ;ontin+ and
B31153.43 )8r (unter+.
277. 48' ori5inally sou5ht to raise alle5ations o. desi5n as well as workmanship issues
a5ainst '2" in relation to the 0tin5ray doors. *he .ormer was dropped #y amendment #ut
some o. the latter remains. *he source o. the protection tape .or the ironmon5ery was (3D1
48'Qs directly employed ironmon5ery supplier.
27A. *he relevant 0peci.ication V10 which was issued to '2" states with re5ard to
=adhesive 5enerally= that the contractor was to =remove surplus adhesive usin5 methods and
materials recommended #y the adhesive manu.acturer and without dama5e to a..ected
sur.aces=.
276. 8r /osey said that the tape le.t adhesive residues on the sur.ace and the resultin5
attempts to remove them caused dama5e to the .inish. (e also said that '2" or 3dams
/oinery should have o#tained and acted on manu.acturerQs advice on recti.ication )which
was to remove the plate and return it to the .actory .or recti.ication+ rather than attempt
recti.ication on,site. 8r and 8rs 8ackay #oth noted in their witness statements that '2"
en5a5ed contract cleaners to remove marks le.t #y the removal o. the protective material to
the #ronKework. *his cleanin5 .luid has dama5ed the .inish to the #ronKework itsel..
2A0. Fn #alance1 > consider that '2" did .ail to e9ercise appropriate care in seekin5 to
remove the adhesive .rom the #ronKe ironmon5ery1 even thou5h it was not its contractual
.ault that there were adhesive residues le.t. *here is no reason to #elieve that the adhesive
was not remova#le without dama5in5 the patination. 0o .ar as the complaints that parts o.
the ironmon5ery are missin5 )linkin5 strips+ and other parts are now loose are concerned1
this has simply not #een proved. >. ironmon5ery was missin51 it must have #een #ecause
either it was not supplied to '2" to .it or it has #een taken o.. #y others1 there #ein5 no
reason why '2" should have removed it. 3s .or loose pieces1 this was not noted in 200A on
sna55in5 and it is not possi#le to say pro#a#ly what or who caused them to #e loose.
2A1. 3s .or ?uantum1 > can not accept that the total removal o. the doors is either
necessary or reasona#le. *he ironmon5ery can #e removed and taken o.. site .or re,
patination and then returned and re,.i9ed on site. *here is little #etween the ?uantum e9perts
on this and B31250 is a .air allowance. (owever1 .or reasons dealt with elsewhere1 > would
have allowed nothin5 #y reason o. the settlement which 48' reached with the other third
parties to the proceedin5s 9 >n this particular case1 48' did allocate in the settlement
B121045.41 to the 0tin5ray 4oors pro#lem. *his #y a lar5e percenta5e e9ceeds what > would
otherwise have awarded in any event.
Le%t1er &n t1e L&2r%r0
2A2. *he importance o. the issues relatin5 to the 2eather in the 2i#rary revolve around
responsi#ility .or the desi5n o. the leather and the e9tent to which '2" had responsi#ility
.or the speed or )or lack o. speed+ o. the re?uisite su#,contractor1 3dams /oinery1 in
producin5 samples which were accepta#le to the 8ackays. *here is a major issue as to
whether it caused overall delay.
2A3. *he supply and installation o. the 2eather in the 2i#rary relates to the linin5 to the
purpose made #ook shelvin5 units. *he shelvin5 units comprised a 70mm thick 84D
construction and lined all around in leather with decorative stitchin5 in order to .orm an
architectural .eature o. the 2i#rary. >t is common 5round that the leather linin5 had to #e
installed to the joinery components prior to their on,site installation and that until the leather
lined joinery had #een installed no other joinery could #e installed to the 2i#rary. >n addition
to the li#rary shelves1 .urther leather .inishes were re?uired in the 2ower (all lo##y walls
which were situated in the #asement #etween the 2i#rary1 the "inema and the li.t sha.t.
2A4. 8r 8ackay stated in his witness statement that it was his idea to clad the li#rary
shelvin5 in leather at a relatively early sta5e in 4ecem#er 2004H it is clear that :ev took a
major role in seekin5 to or5anise this. (e produced various sketches. (e produced some
photo5raphs in /une 2005 showin5 e9amples o. the stitchin5 detail which the 8ackays were
happy with and then or5anised a company called 3nthony Nahimis to produce a sample.
*his sample was produced some time therea.ter and a5ain the 8ackays were happy with
this. *here is no su55estion that either '2" or 3dams /oinery were involved in any part o.
this process.
2A5. *he history relatin5 to the eventual en5a5ement o. 3dams /oinery )as set out in
relation to the 3:' issues a#ove+ applies in relation to the 2eather .or the 2i#rary1 #ecause
this was ordered as a variation to its joinery work. Fn 27 8ay 2005 3dams /oinery amon5st
others was invited to ?uote initially .or joinery work .or a num#er o. rooms which did not
initially include the 2i#rary. Fn 17 8ay 2005 :243 produced drawin5s .or the 2i#rary !o.
2353 "/A173 and "/A173. Fn 7 /une 2005 :243 produced an &lemental 4escription
0chedule .or the 2i#rary )cross re.erred to drawin5s !o. "/A17 and A17+. *he section
dealin5 with the joinery had an item )4.10+ relatin5 to the shelves which provided that the
84D shelves in the 2i#rary were to #e =clad all around with decorative stitchin5 to >4
speci.ication and to architect@s approval= #ut stated that the material was to #e con.irmed. >t
is not clear what the =>4= speci.ication was althou5h there was a !ational :uildin5
0peci.ication re.erence to V10 and 870/1A5. *he drawin5s do not assist with the type o.
leather or stitchin5.
2A7. 3dams /oinery was also asked to ?uote .or the 2i#rary and provided its ?uote .or the
supply and installation o. joinery to various rooms includin5 the 2i#rary. *he ?uotation was
?uali.ied #y 3dams /oinery to the e..ect that it had not =allowed .or the supply or
upholsterin5 the 2eatherP until .urther speci.ication=. >t was also ?uali.ied #y 3dams
/oinery to the e..ect that =no allowance has #een made .or constructin5 .ull workin5
samples=.
2A7. >t is common 5round that 3>17" #y which :243 instructed '2" to place an order
with 3dams /oinery e9cluded the supply o. the 2eather .or the 2i#rary until .urther
speci.ication. *his su55ests that either :243 was unaware that the 8ackays had made up
their mind a#out the 2eather or that they had not yet .inally made up their mind. >ndeed
when :243 issued its ne9t version o. the &lemental 4escription 0chedule the 2eather was
still to #e con.irmed.
2AA. 'hen '2" entered into its su#,contract with 3dams in or a#out 8arch 20071 the
su#,contract did not include .or the leather. (owever1 3dams had re?uested that in.ormation
a#out the leather speci.ication #e provided #y 23 4ecem#er 2005. >t had #een in.ormed at
least in.ormally #y 17 De#ruary 2007 that the leather type was to #e =0pinney#eck,2ucente
1701I. >t appears that no speci.ication was provided. 8r /oyce 5ave unchallen5ed evidence
that 3dams re?uested more in.ormation relatin5 to the leather speci.ication. (e also said that
on 20 8ay 2007 3dams provided a lar5e sample o. the leather clad li#rary units to /0>.
2A6. :ev was in a state o. con.usion or i5norance as to whether 3dams had initially
priced the leather in the li#rary. >n an e,mail to the 8ackays1 he wrote:
J1. 2>:-3-UPre leather costsP424 $:243% e9plained that the initial costs o. the
leather1 had .ailed to take into account that the leather was on all internal sites. *he
su#se?uent amendment to suit the issued desi5n details1 resulted in a cost increase. >t
was a5reed that to resolve this that $sic% the vertical shel. providers would #e lac?uered1
.inish to suit the a5reed dark 5rey -32 colour=
2. 2>:-3-UP 3dams are currently tryin5 to source a cheaper leather1 as a .urther
attempt to reduce costs. /04 ):ev+ will do the same. 'e have however a Oli?uid@ leather
)man made+ which is a 5ood match to the leather1 and will #e considera#ly cheaper.=
260. *he re.erence to =leather costs= in the .irst num#ered para5raph is pro#a#ly to such
costs as had #een allowed in the #ud5et and this e9plains why 3dams was #ein5 asked to
.ind a cheaper leather than the 0pinney#eck,2ucente previously identi.ied .or which 3dams
/oinery had su#mitted a price )not in the court papers+. Fn 22 /une 20071 :243 reported on
3dams /oinery =Nariations o. cost=1 statin5 in relation to the li#rary:
J*he >4 asked .or a sample o. the li#rary to #e manu.actured. 3dams did this1 it is now
in /anine 0tone@s o..ices1 and they have char5ed .or it. C<* should con.irm that this
price is correct.
3.ter tender the li#rary was redesi5ned #y the >4 omittin5 joinery1 and e9tendin5 the
use o. leather. 3dams re,priced the whole room and the price o. the joinery was reduced
$.rom% B35k to B25k appro9imately.
*he leather coverin5s1 which now covered all the .aces o. shelves1 carcass and #acks #ut
was stuck not stitched1 were priced #y 3dams as an additional B47k. 3dams had
investi5ated cheaper leathers and should have #ud5et prices this week.
"lient and >4 discussed reducin5 the amount o. leather. >nstructions awaited.I
>4 is an acronym .or >nterior 4esi5ner.
261. 8atters had still not #een resolved #y the end o. /une 2007. '2" reported at the site
meetin5 on 27 /une 2007 that the chan5es to Gnit " includin5 =some lon5 lead in items e5
leather claddin5I were delayin5 the construction pro5ramme and were on lon5 procurement
times. Fn the same day1 :ev e,mailed :243 with an idea .or an alternative speci.ication .or
the leather .or the #ack panels o. the shelvin5. :243 .orwarded this e,mail to 3dams
/oinery askin5 .or a revised cost .or the li#rary area usin5 this alternative materialH this was
not copied to '2". 8r and 8rs 8ackay were kept in.ormed as to what was 5oin5 onH .or
instance at a desi5n meetin5 on 7 /uly 20071 :243 reported to them that the leather was
#ein5 re,priced and that alternative samples and prices were awaited .rom 3dams /oinery.
262. Fn 11 /uly 20071 3dams ?uoted .or amon5st other thin5s 2eather in the 2i#raryH the
sum ?uoted was B431732.20. >t had sourced alternative leathers and it provided samples:
J3vionappa >vory and ;archment leathers would 5ive a savin5 o. B141720.03. *he 0pecially
4yed 0onia,;anna leather would 5ive a savin5 o. B400A.73I. 3 50L deposit was re?uired to
place orders .or the leather and .a#ric. *his was passed on to :243 on 12 /uly 2007. Fn 13
/uly 20071 :243 asked 3dams to Jresearch the via#ility o. the re,speci.ication o. the
leather to the li#rary to 0onia ;anna1 as ta#ledI at an impromptu meetin5 that dayH :243
was concerned a#out the impact on the pro5ramme as the leather would have to come .rom
>taly.
263. *here was an e9chan5e o. e,mails #etween 3dams /oinery1 :243 and :ev )with
'2" not #ein5 copied in+ on 16 and 20 /uly 2007. :ev had #een talkin5 to 3dams /oinery
a#out joints and stitchin5 details .or the 2eather in the 2i#rary1 sayin5 that they would #e
issuin5 outstandin5 in.ormation later on 16 /uly 2007 #ut 3dams /oinery was not sure what
:ev meant. :243 told 3dams /oinery that J:ev re?uires any stitchin5 detail around the
ed5es o. the shelvin5 and is keen to see where the jointin5 is 5oin5 to happenI and thou5ht
that he was =waitin5 .or a detail/sample .romI 3dams /oinery whose response was that this
had all #een held up pendin5 the order #ein5 placed .or the =2i#rary chan5e o. 2eather=.
:243 e,mailed #ack to 3dams /oinery on 20 /uly 2007 sayin5:
J'e are still awaitin5 your comments on any impact the chan5e o. leather speci.ications
may have on the pro5ramme. 3s you are aware .rom our meetin5 on the site1 #oth the
client and the >nterior 4esi5ner workin5 to use the alternative that you ta#le .or the
li#rary. (owever it was a5reed that due to the .act that it would have to #e specially
dyed in >taly1 3dams would investi5ate its via#ility.
Fnce this in.ormation has #een received1 we will hope.ully #e in a position to place the
order .or the leather. >n the interim it would #e use.ul to use this time to a5ree the
aesthetic o. the stitchin5 and joinin5 details.
;lease can you con.irm i. this is accepta#le and when we will receive this outstandin5
in.ormationWI
264. :243 issued an instruction )3>311"+ on 1A /uly 2007 .or numerous variations .or
3dams /oinery which had not #een .ormally instructedH these did not include the 2eather to
the 2i#rary. >t is clear that 3dams /oinery was unwillin5 to spend time and resources
researchin5 the issues relatin5 to the leather without clear instructions. 3t the site meetin5 o.
25 /uly 20071 '2" repeated their concern a#out chan5es and the lack o. instructions in
relation to leather claddin5 as this was delayin5 the construction pro5ramme.
265. Fn 6 3u5ust 20071 '2" sent to :243 an e9tension o. time noti.ication #ased in
part on the .act that it was still awaitin5 instructions re5ardin5 the supply and installation o.
2eather to the 2i#rary as well as the 2ower (all and lo##y. *he same point was emphasised
in '2"@s pro5ress report o. the site meetin5 o. 22 3u5ust 2007. :243 never sou5ht to
challen5e these assertions.
267. >t was only on 21 3u5ust 2007 that :243 #y e,mail identi.ied to '2" )copied to
3dams+ that the 2eather .or the 2i#rary and lower hall was to #e =0onia ;annaI. '2"
con.irmed this in writin5 that day and on the .ollowin5 day sent a site instruction to 3dams
/oinery in relation to this. Fn 25 3u5ust 20071 '2" reminded :243 that 3dams /oinery
re?uired a 50L deposit .or the leather and .a#ric1 al#eit that '2" would pay .or this out o.
advance paymentsH these payments were pro#a#ly certi.ied the .ollowin5 month. *here was
at this sta5e no in.ormation as to how the leather was to #e appliedH there had #een talk o.
adhesive and stitchin5.
267. '2" reported .or the site meetin5s o. 16 0eptem#er and 17 Fcto#er 2007 that1
althou5h there were su#stantial delay on the joinery1 3dams /oinery was currently
processin5 the leather 5oods. Fn 27 Fcto#er 20071 :ev e,mailed :243 askin5 .or an
update on the status o. samples amon5st other thin5s .or the =leather stitchin5 .or the li#rary
shelves=. Gp to this sta5e1 '2" and 3dams had not #een asked to provide any sample o. the
leather stitchin5 #ut on 30 Fcto#er 2007 :243 passed on to 3dams /oinery and '2"
:ev@s e,mail. :ev indicated in an e,mail dated A !ovem#er 2007 to 8rs 8ackay that he was
5oin5 to visit =the 5uys who are doin5 all the leather work ne9t 'ednesday to ensure that
they have understood what it is we are a.ter and to do a level o. ?uality controlI 5oin5 on #y
askin5: J4o you have any .eed#ack on the sample o. the shel. and itQs stitchin5 > le.t on
8ondayIW >t is not clear who =the 5uys= areH althou5h it could #e 3dams /oinery or
"ourtney "ontract Durnishers )J"ourtneyI+1 '2"@s report .or the site meetin5 o. 14
!ovem#er 2007 identi.ies that a visit to =the upholsterer is planned .or w/c 13 !ovI.
26A. *he upholsterers were "ourtney and they wrote pro#a#ly .ollowin5 that meetin5 that
their latest sample was the #est answer to what was achieva#le usin5 the speci.ied materials.
"ourtney wrote to this e..ect to 3dams on 22 !ovem#er 2007 and addin5:
JGn.ortunately1 it would #e almost impossi#le to have accurately sewn stitchin5 lines on
the horiKontal sur.aces o. the shelves to mirror those on the vertical sur.aces )as
sample+. Gpholstery is not always an even thickness and certain parts o. the hide are
so.ter1 there.ore you 5et inconsistency o. how much it may stretch1 so with the num#er
o. datum lines involved it would #e virtually impossi#le to keep those stitch lines
strai5ht and parallel.I
>t then 5oes on to o..er a .urther price .or supplyin5 and applyin5 an interliner to wall
shelves and #ack #oards. >t is a reasona#le in.erence that any sample was provided to :ev
and the reservations hi5hli5hted in this letter passed on to him. >t is unclear i. 8rs 8ackay
attended the meetin5.
266. '2" reported .or the site meetin5 o. 12 4ecem#er 20071 .ollowin5 that meetin5
with "ourtney1 that a Jrevised sample .or the li#rary shelvin5 incorporatin5 paddin5 is now
ready .or approvalI. >t is pro#a#le there.ore that the di..erent ideas1 includin5 providin5
paddin5 #etween the latter and the 84D1 were #ein5 considered.
300. *here was on 1A 4ecem#er 2007 an internal meetin5 #etween :2431 :ev1 02' and
-2: at which :ev raised Jconcerns re5ardin5 the ?uality o. the leather stitchin5 sample sent
#y 3dams $to :ev% .or their approval.= 3 su#se?uent meetin5 had #een arran5ed .or 5
/anuary 2007 at :243@s o..ices to discuss stitchin5 with 3dams and "ourtney. *he
.ollowin5 day :ev e,mailed 3dams )copied to '2"+ as .ollows:
J3polo5ies .or the delay in 5ettin5 #ack to you allP
3s .ar as the sample is concerned > am a.raid that the stitchin5 that joins two pieces o.
the leather to5ether on the vertical is still not accepta#le.
;lease re.er to attached photo as it shows the leather tearin5 sli5htly at the stitch. >
understand that this is a di..icult detail #ut we must .ind a #etter way to achieve this. >
am at pains to show this to Ciles and "aroline as it is less than per.ect.
*here are also potential issues with what e9actly is e9pected #y Ciles and this illustrates
the ?uality that he is e9pectin5. !ote that via "aroline1 Ciles is e9pectin5 stitchin5
details that are similar to the leather upholstered room within say an 3ston 8artin. >
think that due to the #ud5etary constraints that this item at this level was never
achieva#le1 and is a discussion that will need to #e had with Ciles and "aroline when >
present the sampleI.
*his .ollowed a .ollow up e,mail on 1A 4ecem#er 2007 .rom 3dams re.errin5 to another
sample sent to site the previous week. *he meetin5 planned .or 5 /anuary 2007 was
postponed #y several days.
301. >t was at this meetin5 or shortly therea.ter that .urther thou5ht was #ein5 5iven to
chan5es to the shel. detail. *his is re.erred to in :ev@s e,mail dated 15 /anuary 2007 to
:2431 copied to 8r 8ackay #ut not to '2" or 3dams:
J"an you please 5ive me an update or con.irm that we are still on track to receive the
revised leather shell sample with the .ollowin5 alterations #y the end o. this week.
1. 3mended stitchin5 to the leather joins.
2. 0titchin5 removed o.. .rom .ace and replaced #y line detail.
3. >mplications o. alterationsI
*his e,mail was passed on to 3dams #y :243. 8r /oyce said1 and > accept1 that the stitch
detail was chan5ed #y 8r 8ackay so that it would run horiKontally across the joints instead
o. in line with the joints in the leather. 8r (awks o. 3dams /oinery e,mailed :243 on 17
/anuary 2007 to say that he and "ourtney was Jnot havin5 much luck with producin5 the
stitchin5 detail=H he had even visited a car showroom without success and asked .or a photo
to #e taken as to what was re?uired so that they could understand the detail #etter.
302. '2" reported to the site meetin5 o. 23 /anuary 2007 that the =li#rary shelvin5 is
su#ject to development/speci.ication/re?uirement.= *his was not challen5ed #y :243. Fn
23 /anuary 20071 :243 reported to 8r 8ackay:
J3dams made a lar5e sample o. the leather clad li#rary unit and delivered it directly to
your >nterior 4esi5ner on 20
th
8ay 2007.
*here were discussions #oth a#out the desi5n and ?uality until 3dams arran5ed the visit
to the upholsterers on 15th Fcto#er 2007 to view what was thou5ht to #e the .inal
a5reed sample.
3t this meetin5 the >nterior 4esi5ner asked .or the leather to #e padded and the stitchin5
to #e strai5hter and more uni.orm.
3dams produced a second sample which was seen #y the >nterior 4esi5ner on 14
4ecem#er. (e was unhappy with the stitchin5.
Fn 10th /anuary the >nterior desi5ner e9plained in detail what the client wanted with the
upholsterer1 3dams < :243 )i.e. horiKontally across the joints instead o. in line with
the joints+.
3t present1 3dams are waitin5 .or a photo5raph o. the type o. stitchin5 re?uired #y the
>nterior 4esi5ner. *hey have sent their upholsterer to look at car seat stitchin5 #ut need
more 5uidance.=
303. >n its letter to :243 o. 1 De#ruary 20071 '2" wrote amon5st other thin5s that1
whilst 3dams /oinery had tar5eted to complete other work #y the end o. /anuary 20071 areas
that would not #e complete included the 2i#rary where it had #een a5reed that the leather
coverin5s should #e le.t until completion o. the clients@ .inal decorations.
304. 3t the site meetin5 o. 7 De#ruary 20071 the .ollowin5 was noted:
J*he 2i#rary is waitin5 .or con.irmation on the leather stitchin51 $:243% reported that
the meetin5 took place 5 De#ruary 2007 with $:ev% andP3dams. $3dams% presented 10
samples o. stitchin5 includin5 hand stitchin5. $:ev% will con.irm a sample with the
client 7 De# 2007. *his is ur5ent as it a..ects installation o. the 2i#rary joinery1 the door
and the lar5e panels in the 2ower (all. $8r /oyce% stated that none o. the 2i#rary
joinery can #e .i9ed #ecause it is dependent on the upper sections #ein5 covered in
leather .irst and these are in a#eyance until the leather stitchin5 has #een a5reed.=
8r 8ackay was sent a copy o. these minutes and said in relation to this note:
J'e have #een waitin5 .or these stitchin5 samples .or months and months T why has it
taken so lon5 to arriveW 'e si5ned o.. this desi5n in early summer 2007I.
*hese comments were eventually passed on to '2" on 27 De#ruary 2007 whose response
was:
J-ejection o. samples o..ered complyin5 with the speci.ication #y re.erence to O-an5e
-over@ and O3ston 8artin@ upholstery )see >nterior 4esi5ner@s e,mails+ is the case up to
now. 3 .urther 10 samples o. di..erin5 speci.ication were o..ered1 with pricin5
implications #ut no instructions yet received.=
305. Fn 6 De#ruary 20071 '2" was still awaitin5 desi5n decisions on leather stitchin5 as
con.irmed in its e,mail o. that date to 3dams /oinery. '2" reported to the site meetin5 o.
20 De#ruary 2007 that installation o. leather work 5enerally was delayed and was
outstandin5. >t is a#solutely clear that #y 1A De#ruary 2007 no decision had #een reached in
relation to the stitchin5 #ecause on that date 3dams /oinery was providin5 ?uotations to
'2" .or three alternative types o. stitch )Jsmall hand,stitched1 Ki5Ka5 and loopedI+. Fn that
date '2" produced a list o. outstandin5 works which in relation to all joinery in the li#rary
said that it was =awaitin5 instructions the leather stitchin5. 10 .urther samples o..ered 5th
De#ruaryIH it was e9plained that once the stitchin5 was accepted a price and pro5ramme
would have to #e o..ered. 3dams /oinery e,mailed '2" on 16 De#ruary 2007 that the
leather work would take 17 to 16 weeks to complete =once we have the 5reen li5ht=. *he
costs and timeta#le were .orwarded to :243 on 24 De#ruary 2007.
307. 3t a meetin5 #etween the 8ackays and their desi5n team on 2 8arch 2007 it was
recorded that 8r 8ackay would =call a separate meetin5 to discuss the 2i#rary shelvin5
stitchin5= and would send :243 =a picture o. the e..ect desired=1 it #ein5 reco5nised that
the =stitchin5 detail also a..ected the low wall panellin5.= 3n e9planation .or the lack o.
ur5ency on the part o. the 8ackays is that some consideration was #ein5 5iven at least #y
8r 8ackay to omittin5 the 2eather in the 2i#rary .rom '2"@s scope.
307. Fn A 8arch 20071 '2" wrote to :243 statin5 that it still had =no instruction to
date in respect o. this leather=H they re.erred to the .act that the leather work would not #e
complete until 20 /uly 2007 i. an instruction had #een received #y 2 8arch 2007H it said that
this was a -elevant &vent under "lause 25 o. the "ontract and re?uested an e9tension o.
time with costs. *his date would need to #e adjusted in the li5ht o. the actual instructed date.
Fn 14 8arch 2007 3dams in relation to the 2eather 0titchin5 stated that preliminary costs
#ased on a 23 week pro5ramme would #e B411330 and that the work i. instructed #y 16
8arch 2007 would #e complete on 30 /uly 2007.
30A. 3 meetin5 #etween the 8ackays1 :ev and :243 held on 16 8arch 2007 recorded
elements o. the a5reement #etween them as to what should #e re?uired in relation to the
leather. *hus1 the .aces o. the shelves were to have a sin5le machine stitch on lon5 panels
with #lack stitchin51 the junctions #etween the hides on lon5 shelves should #e minimal
)stitched throu5h on the #ack with a sin5le crease and no thread showin5+ and that it should
#e =#acked with a #umpin5= and that the lower panels should have no seams i. possi#le. 3t a
site meetin5 on 20 8arch 20071 8r /oyce was told #y :243 that it was still discussin5 the
leather stitchin5 with 8r 8ackay and 8r /oyce reiterated that an e9tension o. time should
#e 5ranted in relation to this item.
306. Fn or a#out 20 3pril 20071 at :243@s re?uest1 3dams /oinery produced a .urther
sample .or approval. *his sample was presented at the site meetin5 o. 23 3pril 2007 which
was attended #y 8r 8ackay. *he minutes record that it was a5reed =that the stitchin5 was
not accepta#le as it was not strai5ht= #ut :243 =e9plained this is a di..icult e..ect to
achieve #ecause the leather needs to #e stitched .irst then stretched across the shelves across
the #umpin5.= >t was also recorded that =the leather is very so.t so the parallel lines are
easily distorted= althou5h 8r 8ackay stated =that he has seen e9amples o. this done
success.ully=. >t was a5reed that a meetin5 should #e or5anised with "ourtney to discuss the
technical solution. *hat meetin5 took place on 27 3pril 2007 attended #y "ourtney1 3dams
/oinery1 '2"1 :243 and :evH they looked at a sample which 8r 8ackay had provided and
there was a5reement that it was not relevantH however havin5 discussed the matter in some
detail it was resolved that "ourtney would produce one more sample. Dor instance1 there
was a5reement that to avoid a raised seam e..ect the tim#er shel. underneath was to #e
5rooved to take the dou#le thickness o. leather at joints. >t was clear1 as con.irmed as a client
site walk around meetin5 on 2 8ay 2007 decisions .or the manu.acture o. leather panels to
the 2ower (all were dependent on approval o. the leather stitchin5.
310. *he .urther stitchin5 sample was presented to 8r and 8rs 8ackay at a client site
walk around meetin5 on 17 8ay 2007. *hey con.irmed that a sample with cream stitchin5
was accepta#le )it previously havin5 #een indicated that #lack stitchin5 was more
accepta#le+H the use o. a thicker thread was to #e looked into.
311. Fn 22 8ay 20071 3dams /oinery indicated that its pro5ramme in the li5ht o. the
approval would involve completion o. the leather work #y 3 0eptem#er 2007. Fn 26 8ay
20071 '2" on a Euestion and 3nswer 0heet sou5ht a decision as to whether the price .or
the leather to the 2ower (all 2o##y )B6112.17+ was accepted. 8r 8ackay was reticent
a#out acceptin5 this.
312. Fn 1 /une 20071 8r /oyce o. '2" wrote to :243 indicatin5 that 3dams /oinery
would have di..iculty in completin5 the leather work #y reason o. incomplete works .rom
directly employed su#,contractors. >t was recorded at the "lient 0ite 'alk 3round 8eetin5
o. 7 /une 2007 that 3dams /oinery would complete the joinery in the 2i#rary #y mid
0eptem#er 2007.
313. Fn 16 /une 2007 :243 issued 3>471" instructin5 leather works to the 2ower (all
lo##y. '2" instructed 3dams accordin5ly on 22 /une 2007 and it is clear that this was tied
in with the 8ain Frder to 3dams /oinery. 3s con.irmed #y '2"@s E<3 0heet !o. 1777 the
supply and installation o. this additional work re?uired a 14 week period1 resultin5 in the
leather to the 2ower (all lo##y .orecast to #e complete #y 25 0eptem#er 2007. Dollowin5 a
2 week period to complete any sna55in5 work this would indicate an overall completion o.
the leather work to this area in early to mid Fcto#er 2007.
314. Fn 23 /uly 2007 3> 4A1" was issued re?uirin5 additional works in connection with
an additional air duct to the 2i#rary .ireplaceH this had #een presa5ed at the 'alk 3round
0ite meetin5 on 1A /uly 2007. 3dams was instructed accordin5ly #y '2" on 27 /uly 2007.
*he .irst delivery o. leather joinery .or the 2i#rary arrived on site on 15 3u5ust 2007. 3s a
result o. the additional 3> 4A1"1 '2" was anticipatin5 completion o. the leather joinery in
the 2i#rary #y the end o. the .irst week in Fcto#er 2007.
315. 8r /oyce 5ave su#stantially unchallen5ed evidence that the leather work in the
2i#rary and the 2ower (all 2o##y was in practice dealt with as one commission #y 3dams
/oinery1 which is not surprisin5 5iven that the leather was the same1 even i. stitchin5 was not
re?uired .or the 2o##y area. (e also 5ave unchallen5ed evidence that the 2eather work was
delayed whilst a decision was made #y the 4esi5n *eam in relation to the num#er o. panels
to the slidin5 door #etween the 2o##y and the dinin5 areaH these works were done #etween 4
and 1A 0eptem#er 2007. 'ork was .urther delayed as a result o. the need to install a .resh
air duct #ehind the 2i#rary joinery1 this work was not completed until 7 0eptem#er and
a..ected the installation o. the shelvin5. 3 .urther desi5n chan5e a..ectin5 joinery installation
in the li#rary was that instructed #y 3>510" on 4 0eptem#er 2007 which resolved a desi5n
clash #etween a #ulkhead and the hi5her level leather clad shelvin5. 3 .urther variation
contained in 3>50A" received #y '2" on 16 0eptem#er 2007 re?uired the installation o. a
.rame to a ceilin5 ventilation 5rille which impacted upon the li#rary shelvin5.
317. '2"@s 0ite 4iaries con.irm that 3dams /oinery was carryin5 out the works to the
2eather 2i#rary shelvin5 up until 27 Fcto#er 2007 at which point this work seems to have
#een completed. 3dams then completed the leather panellin5 to the 2ower (all 2o##y.
317. *here was no complaint #y :243 that 3dams /oinery was in any way culpa#ly in
delay in or a#out its per.ormance o. the 2eather in the 2i#rary procurement or work. >ndeed1
.rom a#out 3pril 2007 onwards1 there was no complaint #y the 8ackays as such a#out delay
on the part o. 3dams /oinery therea.ter in relation to this work.
31A. Fne .irst needs to analyse whether '2" had any desi5n responsi#ility trans.erred to
it in relation to the 2eather in the 2i#rary. Dor reasons already 5iven in relation to 3:'1
there was no such "4; trans.er to '2"H nothin5 in the history o. events relatin5 to the
introduction o. the 2eather in the 2i#rary su55ests any such trans.er. '2" as #etween it and
48' had no such or any material desi5n responsi#ility. &ven i. there was an o#li5ation
imposed on 3dams #y '2" to =complete the desi5n/detailin5= o. this 2eather1 that would
not create some sort o. desi5n responsi#ility as #etween '2" and 48'. >n any event1 the
2eather work was e9cluded .rom the 3dams /oinery ?uotation which '2" was instructed to
accept and it only came #ack into the e?uation #y way o. a relatively in.ormal variation
arran5ementH in relation to the 2eather in the 2i#rary )as opposed to the 2ower (all 2o##y+1
there was no .ormal 3rchitect@s instruction1 al#eit there is no issue that '2" was asked to
instruct 3dams /oinery ultimately to do this work.
316. > am wholly unconvinced that1 even i. '2" had an o#li5ation to 48' to =complete
the desi5n/detailin5= o. the 2eather in the 2i#rary1 that would include decidin5 what leather
to use or indeed what type o. stitchin5 to deploy. *hose were essential elements o. the
desi5n1 which1 once decided upon #y the 8ackays1 :ev and :2431 would remain to #e
completed.
320. :ecause '2" had no or no material desi5n responsi#ility .or the 2eather in the
2i#rary1 any delay in the selection o. the leather or the stitchin5 re5ime was not the
responsi#ility o. '2". &ven i. and to the e9tent that 3dams or its upholsterer su#,
contractor1 "ourtney1 were involved in the process o. selection1 any delay or incompetence
on their part in that process would not #e the contractual .ault o. '2". *o the e9tent that
:243 and :ev decided to use 3dams /oinery and "ourtney to help them assist 8r and 8rs
8ackay in their selection o. leather and stitchin51 that was their choice.
321. >n any event1 > am satis.ied that in all pro#a#ility neither '2" nor 3dams /oinery
nor "ourtney delayed matters in relation to the 2eather in the 2i#rary. *hey had no
responsi#ility at all prior to 8arch 2007 when the su#,contract #etween '2" and 3dams
/oinery was entered into. *hey had no responsi#ility indeed until a#out 3u5ust 2007 when it
could .irst le5itimately #e said that '2" was instructed1 al#eit in.ormally1 to 5o ahead with
instructin5 3dams /oinery to proceed with the 2eather in the 2i#rary.
322. &ven i. there had #een some responsi#ility earlier1 > have .ormed the overwhelmin5
impression that the delay was all on the side o. the 4esi5n *eam and in part on the 8ackays
themselves. 'hilst it is true that 8r 8ackay had indicated to :ev that he had approved in
mid,2005 what :ev had shown him1 there is no indication that this was passed on to 3dams
/oinery or indeed to '2". >ndeed1 all the documents produced )such as the &lemental
4escriptions+ were tellin5 '2" that the type and detail o. the 2eather was =to #e
con.irmed=. *here was no >nterior 4esi5ner speci.ication which identi.ied the type o. the
leather or the type o. stitchin51 at least which was produced to '2". >t is clear that 5oin5
into 2007 the 4esi5n *eam was worried a#out cost and tried to secure .rom 3dams /oinery
prices .or other leathers. >t was only in 3u5ust 2007 that the 8ackays and the 4esi5n *eam
indicated to '2" that they had selected what turned out to #e the eventual type o. leather to
#e used.
323. *here was no speci.ication .or the type o. stitchin5 initially and :ev appears to have
taken it upon himsel. to talk to "ourtney in !ovem#er or 4ecem#er 2007 as to what mi5ht
#e appropriate. *here was then essentially a development primarily #y :ev1 al#eit
occasionally consultin5 with the 8ackays1 o. an understandin5 o. what mi5ht #e not only
accepta#le to the clients #ut also practica#ly achieva#le. >n e..ect1 :ev lar5ely #ut to a lesser
e9tent :243 were workin5 out what they )to5ether with their clients+ wanted. *his included
consideration o. di..erent types o. stitchin5 detail and the provision o. paddin5 under the
leather. *his process went on up until 8ay 2007. 48' su55ests that the delays up to 8ay
2007 were lar5ely attri#uta#le to the production #y 3dams /oinery or "ourtney o.
=unaccepta#le= samples. 'hilst it is true that most o. the earlier samples were not accepted
#y :ev1 :243 or the 8ackays1 that does not mean that they were or were necessarily su#,
standard. *here was simply1 in my jud5ement1 an evolvin5 desi5n process #y which the
4esi5n *eam and the 8ackays 5ot to a point that what was eventually produced in 8ay
2007 was accepta#le to them1 aesthetically and practically. *he whole process was in any
event con.used #y chan5es o. mind on the part o. the 8ackays1 not the least o. which was
the re?uirement that the stitchin5 should #e like that on leather seats in an 3ston 8artin or
-an5e -over car.
324. Fnce the decision was made to 5o ahead with the selected leather and stitchin5 in
8ay 20071 > am satis.ied that '2" and 3dams /oinery proceeded with all due dili5ence in
connection with the 2eather in the 2i#rary. Drom 8ay 2007 throu5h to 27 Fcto#er 20071
they went as e9peditiously as was reasona#ly possi#le.
#$%.terwor7
325. *his issue relates primarily to plasterwork which was .ound to #e de.ective mainly in
a#out De#ruary 2007 and which was put ri5ht over the ne9t 3 to 4 months. >t is said #y
48' that it was the need to put ri5ht such plasterwork which was the cause o. delay
initially durin5 this period. *his issue does not involve the consideration o. desi5n issues.
327. >t is common 5round that two speci.ications issued to '2" #y :243 are applica#le1
M10 =;laster#oard dry linin5s/partitions/ceilin5s= and 820 =;lastered/rendered/rou5hcast
coatin5s=. *hese were #ased on 5eneric !ational :uildin5 0peci.ication documents. *hey
distin5uished #etween skim coated plaster on plaster#oard and thicker plaster coatin5s on
#lockwork or concrete walls or columns. >n relation to plaster on plaster#oard1 M10 provided
.or =permissi#le= deviation across joints o. 3 mm1 e9ternal an5les o. 4 mm and internal
an5les 5 mm );ara5raph 750a+H .or the =skim coat plaster .inish= o. a thickness o. 2,3mm1
the .inishin5 was to #e =*rowel/.loat to a ti5ht1 matt1 smooth sur.ace with no hollows1 a#rupt
chan5es o. level or trowel marksI.
327. 3s .or 8201 the plasterin5 o. masonry #ack5rounds is speci.ied in ;ara5raphs 210a1
# and c. *he plasterin5 was to comprise 13mm *histle undercoat with a 2mm *histle .inish.
'here the #ack5round su#strates were dissimilar there were to #e two Amm coats o. *histle
:ondin5 "oat over lath with a 2mm *histle .inish. "oncrete sur.aces were to receive an
11mm thick *histle :ondin5 "oat undercoat and a 2mm *histle .inish. ;ara5raph 710a
de.ined 5eneral standards applica#le to all wet plasterin5 as .ollows:
=3pplication Cenerally:...
3ppearance o. .inished sur.aces: &ven and consistent. Dree .rom ripplin51 hollows1
reduce1 cracks and craKin5
3ccuracy: =Dinish to a true plane1 to correct line and level1 with an5les and corners to a
ri5ht an5le unless speci.ied otherwise1 and with walls and reveals plum# and s?uare.=
32A. ;ara5raph 715a speci.ied the de5ree o. sur.ace .latness 5enerally as .ollows:
J4eviation o. plaster sur.ace: measure .rom underside o. a strai5ht ed5e placed
anywhere on sur.ace T permissi#le deviation )ma9imum+ .or plaster not less than 13
mm thick: 3 mm in any consecutive len5th o. 1.A m=.
3 series o. clauses speci.y the particular re?uirements .or certain locations and #ack5rounds.
0o .ar as the .inish is concerned1 the re?uirement is )with one e9ception+ stated to #e:
J0mooth as clause 777a which provides that:
J3ppearance: 3 ti5ht1 matt1 smooth sur.ace with no hollows1 a#rupt chan5es o. level or
trowel marks. 3void water #rush1 e9cessive trowellin5 and over polishin5.I
Dor one particular location1 namely concrete walls around service stairs1 ;ara5raph 210c also
provided that:
=&9treme care is to #e taken to ensure that all sur.aces re.lect the desi5n intent with
smooth and accurate transition #etween any adjacent radius dimensions and sur.aces
are per.ectly .lat and vertical.=
326. *hus1 !:0 820 deals with internal plaster coatin5s. >t provides particular
speci.ications related to speci.ic #ack5rounds and speci.ic locations. >t deals with thick
coatin5s )e9ceedin5 13 mm thickness+ onto solid #ack5rounds as well as skim coatin5s onto
plaster#oard #ack5rounds. ;ara5raph 715a speci.ied the ma9imum permissi#le deviation .or
plaster not less than 13mm thick1 namely 3mm in any consecutive len5th o. 1.Am. *here was
no de.inition o. dimensional limitations or any de.ined tolerance limits as to the deviations
in the sur.ace .or thin coatin5 work )i.e. under 13mm thick+1 such as would apply to skim
coatin5 o. plaster#oard1 covered #y M10.
330. '2" #elieved that a hi5h ?uality .inish was re?uired. *here was an e9chan5e o.
correspondence #etween 0imon 0piers )'2"+ and 3ndrew "rispin )'2"+ on 22 and 23
0eptem#er 2005 concernin5 an appropriate contractor. >n his email dated 22 0eptem#er
20051 8r 0piers asked 8r "rispin:
J...3part .rom 4avid 3ndrews do we have a plasterin5 su#,contractor who can provide
the ?uality re?uired on this project alon5 with the work.orce to cope with these three
housesWI
>n his reply dated 23 0eptem#er 20051 8r "rispin said:
JCiven the ?uality re?uired and the output/volume re?uired1 > maintain we can only
propose one su#contractor T 4avid 3ndrews. > su55est you email the whole "lient
team advisin5 them that we are only aware o. one plasterer who can achieve the
?uality re?uired1 5iven the volume1 se?uence and time restraints. 3sk them to put
.orward names within 2 workin5 days who we can talk to and o#tain re.erences on.
Dailin5 that we tender to one contractorSI
331. 3 pro#lem with the ?uality o. the plasterwork .irst #ecame apparent in !ovem#er
2007. 8r 8ackay said that the issues with the plasterin5 .irst #ecame apparent when he was
asked to look at the completed .loorin5 in the drawin5,room. 3lthou5h the .loorin5 looked
J5reatI1 his eyes were drawn to the plaster .inish on the walls which to him looked
appallin5. (e reported what he saw in an email to :243 and others on 27 !ovem#er 2007.
:ev wrote to :243 on 24 !ovem#er 2007 that:
JDurther to my walk around with Ciles earlier today > would like to con.irm and
comment on the .ollowin5:
1. 0u# standard plasterin5 to the drawin5 room. > 5ather that 'alter 2illy were already
aware o. this and are proposin5 to re,skim. (owever does this have any knock,on
e..ect in time. "an we room #y room )rooms where the spray coat has #een applied+
have a walk a#out with the li5htin5 on to check the ?uality o. the plaster. *his will
ena#le us to cross check that '2 are aware o. such issuesW...I
:243 responded on 2A !ovem#er 2007 statin5 that the plasterin5 in ?uestion had #een
o#served and had already #een condemned. *hey said that the repair work was #ein5
delayed in order to avoid delayin5 completion o. the .loorin5.
332. *he plasterin5 works at ;lot " were at least nominally completed in early 2007.
(owever1 on 6 De#ruary 2007 8r 8ackay visited the site and walked around most o. the
rooms in the house and complained a#out su#,standard plaster in almost every roomH he
emailed :ev on the same day:
J> understand that some rooms are to #e handed over .or sna55in5 ne9t week. > cannot
see the point in this whilst as .ar as > can see every room in the house has de.ective
plasterin5. *he corner/an5les are not strai5ht or s?uare and the walls are not .lat.
*he co..ers are not true and in some cases the ceilin5 details are lower on end .rom
another T all o. this is not accepta#le and will #e rejected.=
333. Fn 21 De#ruary 2007 8r 8artin 'alker )02'+ sent an email to 8r -on :ates
)'2"+ sayin5:
=*he clients have e9pressed 5rave concerns a#out the ?uality o. the plaster .inish to
walls and ceilin5s1 they have made it clear that they are dissatis.ied with the current
standard o. workmanship1 and remedial work is necessary.=
8r :ates .orwarded the email to the '2" team the same day sayin5 that Oit needed their
action1 mind.ul o. the speci.ication we are workin5 to achieve.@
334. Fn 27 De#ruary 2007 8r 8ackay provided his comments on the minutes o. the site
meetin5 held on 7 De#ruary 2007:
J3.04 'e visited the site on 10.02.07 last week T the house was a complete mess T
with joinery still #ein5 cut in several o. the rooms and plaster #ein5 mi9ed in various
areas T > had a conversation with the site mana5er a#out it and sent an e,mail. *he
house is nowhere near complete T amon5st other thin5s T the plasterwork in every area
is de.ective .or a jo# o. this ?uality and =price=P=
:y letter dated 8arch 2007 to '2"1 Mnowles stated that the employer would deduct some
B1041000 in respect o. de.ective plaster throu5hout the house.
335. Fn A 8arch 2007 -2: sent an email to :243:
J...#oth sides o. the wall to the studies are not accepta#le due to e9cessive makin5
5ood )patches+1 e9cessive undulations )despite perhaps #ein5 within tolerances+ and
the loss o. #ond to the plaster )hollowness+.
>an )0ymes+ ):243+ and > spent a considera#le time yesterday checkin5 most o. the
walls in ;lot " and he is to send me a note today o. those that were outside tolerance
or otherwise de.ective and there.ore not accepta#le....
*he schedule o. de.ects should #e sent directly to '2" .or their immediate attention.=
*he results o. 8r 0ymes@ inspection were contained in a report dated 7 8arch 2007 and he
.ound de.ects in the rooms surveyed. *he survey was discussed at a "lient 8eetin5 on 14
8arch 2007. >t was recorded that:
J5.02 4avid 2loyd,4avis con.irmed a sna55in5 list .or the majority o. the plaster
walls in ;lot " had #een issued. Nernon :ardsley and :243 had e9amined these walls
to5ether. N: was concerned that :243 were not usin5 a strai5ht ed5e. 424 did not
a5ree and said that he himsel. had used a strai5ht ed5e in one session.
5.03 Ciles 8ackay was concerned that the piecemeal way '2" were tryin5 to patch
up the plaster was not workin5 and was only delayin5 more e..ective remedial work.
424 con.irmed that he had warned '2 that the method they were usin5 to repair
small areas o. undulation was not helpin5 and creatin5 more pro#lems.
5.04 424 e9plained that the 3rchitect could not dictate how remedial work should #e
done1 #ut could only say i. it was accepta#le or not accepta#le.I
337. >t is clear that :243 at least considered that the plasterin5 de.ects re?uired '2"@s
attention as is evident .rom its email to '2" that was circulated internally1 on 14 8arch
2007:
JP"an we meet at 2ots -oad and have a practical session as to how you intend to
complete the houses.
3t the moment we have no clear idea o. your pro5ramme and need certainty. > also
need to understand how you intend to put ri5ht the de.ects in the li.t sha.ts and the
plasterin5 #ein5 the most di..icult to resolveI
337. (owever1 what '2" )8essrs (owie and /oyce+ were contendin5 was that1 while
there were some de.ects )which had #e5un to #e repaired+1 there was su#stantial compliance
with the speci.ication. :243 went some way to a5reein5 this in that it applied the same
tolerance standard as that su55ested #y '2"1 namely deviations not e9ceedin5 3 mm in any
consecutive 1.A m direction were accepta#le )as re.erred to in a report o. Mnowles dated 7
8arch 2007+. >t is also clear that even Mnowles considered that the plasterin5 de.ects said to
e9ist in the co..ered ceilin5s were e9a55erated. :243 said at the =0na55in5 and
Futstandin5 'ork= meetin5 on 7 8arch 2007 that 8r 2loyd 4avis had seen many o. the
rooms and that =many may #e within the speci.ication and that the pro#lem areas may #e
caused #y visual deceptions relatin5 to viewin5 an5les=H he went on to say =there are two
pro#lems makin5 it worse than it appears. *he .irst coat o. #rush applied paint is naturally
patchy and catches the li5ht di..erently1 and second1 the .ine .inishin5 .iller is #ein5 applied
with a metal ed5e=H he su55ested that a plastic ed5e #e used. :y 20 8arch 20071 8r /oyce
reported to a ;ro5ress 8eetin5 that the remedial plasterwork had #een .inished and that the
walls were within tolerance.
33A. *he di..erences #etween the parties are re.lected in an e,mail sent #y 02' on 27
8arch 2007 to 8r -on :ates o. '2" in which he said:
J3s you may know > met on site in ;lot " drawin5 room with /ohn (owie1 4avid
2loyd 4avis and others today primarily to esta#lish i. we could come to a5reement on
the ?uality issues in respect o. the plasterin5.
> was disappointed that /ohn was not prepared to en5a5e in positive discussion and
relied on the empirical test o. tolerance contained in the speci.ication without
apparently takin5 note o. the visual criteria. /ohn@s su55estion that the speci.ication
provided .or no 5reater ?uality than that .ound in commercial premises was
particularly worryin5.
'hilst it was pointed out that some o. the plaster repairs still did not meet the
tolerance /ohn simply noted that sna5s were not complete and not ready to #e o..ered
.or re,inspection. 'hen asked when the sna5s would #e complete and ready .or re,
inspection /ohn was unwillin5 or una#le to advise a time.rame. /ohn was also una#le
to advise when the reports on the plaster ?uality commissioned #y you weeks a5o
would #e availa#le.
Durther1 in response to my ?uestion as to when all the '2" works would #e complete
in ;lot "1 apart .rom those areas/items awaitin5 in.ormation1 /ohn was a5ain unwillin5
to commit. >ndeed he went on to say why should '2" =#ust a 5ut= to .inish the works
when in.ormation remained to #e provided and we should wait until '2" have
completed all their work #e.ore criti?uin5 it
8y su55estion1 repeated many times #e.ore the '2" should miti5ate some o. the
delays #y .ully completin5 all the work they are a#le and =lockin5 the doors= a5ain
appeared to .all on dea. ears ...
336. 8r /oyce e9plained in evidence that '2" .elt that :243 were unreasona#ly
sna55in5 the plasterwork. *hey there.ore called in an independent e9pert1 namely the
Dederation o. ;lasterin5 and 4rywall "ontractors technical panel who1 a.ter inspectin5 all o.
the rooms1 reported on 20 8arch 2007 that the standard o. dry linin5 work was o. a
=commercially accepta#le standard= and recommended that the work #e accepted #y all
parties as such. *he report also said that the work was .ound =to #e o. a hi5h standard= and
that it was in e..ect visually accepta#le.
340. :243 maintained that '2" seemed to #e i5norin5 the speci.ication re?uirements
#oth as to visual ?uality and as to .latness. *hus1 .or e9ample1 in a handwritten note o. a
meetin5 held on 21 8arch 2007 )and not attended #y '2"+ it is recorded that: J424 and
N: have looked at the plaster in ;lot " T '2" say they have .inished the remedial works
#ut this is clearly not the case. '2" seem to #e takin5 the stance that the walls are within
tolerance #ut 424 says the speci.ication also has re?uirements with re5ard to aesthetics.I
341. 0imilarly1 in an email to 8r 8ackay dated 30 8arch 20071 8r 4avid 2loyd,4avis
said that:
J*he visual ?uality o. the plaster is re.erred to in our speci.ication as well as a
?ualitative re?uirement .or .latness. *he speci.ication is not that .or =commercial
premises=. >n addition to the speci.ication1 at tender interview1 '2" were made very
aware #y 0econd 2ondon 'all and :243 o. the ?uality e9pected on the projectP=
*his was however in response to an e,mail .rom 8r 8ackay which complained that the
speci.ication put .orward #y :243 was de.icient.
342. :y letter dated the 30 8arch 20071 '2" wrote to Mnowles complainin5 a#out the
withholdin5 o. monies amon5st other thin5s in relation to the plaster. >t asserted that the
5reat majority o. the plasterwork had #een e9ecuted in accordance with the contractual
re?uirements #ut it did accept that there were a small num#er o. areas identi.ied )in
conjunction with the architect+ where the ?uality did not achieve the speci.ied standard.
343. 8eanwhile1 Mnowles on #ehal. o. 8r 8ackay had retained surveyors called
"hantons in 8arch 2007 to survey the premises. Fn 3 3pril 20071 8r 8ackay demonstrated
in an e,mail to Mnowles that he was takin5 a very personal interest in the e9ercise involvin5
"hantons1 in particular in relation to a meetin5 several days laterH speci.ications should #e
5ot to5ether =so we can prove the de.ects=H he called .or li5hts on site to shine at the walls to
=help show up these de.ects=1 endin5 up that this was =our #est chance to nail this once and
.or all=. Fn 5 3pril 2007 there was a site meetin5 at which two settin5 out en5ineers .rom
"hantons were present. 8r /oyce recalled in evidence that 8r 8ackay claimed that all o.
the plasterin5 in ;lot " was de.ective and that he instructed one o. the settin5,out en5ineers
to =prove= this #y applyin5 a carpenterQs s?uare to #oth internal and e9ternal corners. (e
says that he was asked #y 8r 8ackay to a5ree that the plaster was =de.ective= #ut he
re.used to do so. *here was then another meetin5 at which 8r 8ackay was not present
)attended #y 8r /oyce1 8r :ates and 8r -ou5h .or '2" and 8r :ardsley o. -2:+ at
which 8r /oyce demonstrated the correct way to measure the sur.ace tolerances o. plaster.
*here is little dou#t that a lar5e majority o. items previously identi.ied as de.ective were
.ound to #e within the accepta#le tolerance. (owever an a5reed method .or a detailed
plasterin5 survey was a5reed on and the .ollowin5 week "hantons went throu5h the house
and physically marked on the walls those areas which were out o. tolerance1 #y re.erence to
the a5reed method.
344. Fn 12 3pril 2007 there was another meetin5 attended #y the same people #ut
"hantons@ representative put an alternative set o. .indin5s #ased on its interpretation o. the
speci.icationH 8r /oyce however #elieved that that was an incorrect interpretation as he
#elieved that they were not measurin5 the plaster in accordance with the :ritish 0tandard or
usin5 the approved measurin5 e?uipment. (owever1 what was done was to identi.y and
mark on the relevant walls with tape the relatively .ew areas o. plasterin5 which were
outside the a5reed tolerances. Mnowles wrote an e,mail on 1A 3pril 2007 to 8r 8ackay
attachin5 what was said to #e the a5reed survey schedules which identi.y just over 40
relatively small areas o. plasterwork. (owever1 this document was never issued as such to
'2"H it is curiously dated 16 Fcto#er 2010 and it is likely that it was never issued to '2".
8r /oyce said and > accept that the plasterin5 de.ects marked out on,site were not very
widespread and there were not many o. themH he said that they were =just localised very
small areas= and it did not take '2" very lon5 to do the relevant remedial work.
345. >t is common 5round that all or least the lar5e #ulk o. the identi.ied de.ective areas
o. plasterwork )as marked on the walls+ were put ri5ht #y a#out the end o. 3pril 2007. Dor
instance at a "lient 0ite 'alk 3round meetin5 on 23 3pril 2007 8r 8ackay a5reed that the
remedial work on the third .loor looked #etter1 al#eit that he said that it re?uired more work
to #e done to #rin5 it to an accepta#le standard. *he work in ?uestion was su#stantially
completed #y 25 3pril 2007. >t does appear that there were one or possi#ly two minor areas
identi.ied on 6 and 17 8ay 2007. >t appears likely that several other minor plasterin5
de.iciencies were noticed in !ovem#er 2007 al#eit it is pro#a#le that they were put ri5ht.
347. >t is worthwhile o#servin5 #oth that the perceived pro#lems with the plasterin5
de.ects arose very shortly a.ter 8r 8ackay had retained Mnowles and had em#arked upon
the strate5y to put pressure on particularly :243 and '2" and that it was he1 Mnowles and
-2: who took the lead in complainin5 a#out the plasterwork de.ects. *here can #e no dou#t
that there were some de.ects #ut it is e?ually clear that they were e9a55erated. > do not
su55est that 8r 8ackay deli#erately and dishonestly e9a55erated the e9tent o. the de.ects
#ut he was much too ?uick o.. the mark to criticise '2". (e was not supported wholly #y
his own architect in these criticisms. *he truth is that ultimately1 upon advice1 he accepted
that the speci.ication drawn up #y his own 4esi5n *eam did not provide as hi5h a ?uality as
he mi5ht have e9pected .or the plasterworkH it may #e that the 4esi5n *eam can #e criticised
.or that and .or producin5 a more =commercial= level o. speci.ication. (e was also prepared
to accept the accommodation reached #etween "hantons1 -2: and '2" in 3pril 2007
where#y only the areas marked #y tape on the walls )and possi#ly ceilin5s+ were to #e put
ri5ht.
347. >n my jud5ment1 the plasterin5 pro#lem identi.ied primarily #etween De#ruary and
3pril 2007 was and turned out to #e a very limited one which was put ri5ht within a short
time. 3s will #ecome apparent in considerin5 the ?uestion o. e9tension o. time1 > cannot
#e5in to see how this relatively minor pro#lem either did cause or could realistically #e seen
to have caused any overall delay.
34A. *here are said to #e some su#sistin5 de.ects upon which 8r /osey reported in his
.irst report. (owever1 in this conte9t the 3rchitectural e9perts are a5reed that as to crackin5
in .inishes as noted1 these are such that mi5ht occur durin5 the de.ects lia#ility period as a
result o. dryin5 out and shrinka5e and would #e resolved as part o. the contractorQs normal
de.ects lia#ility duties. *hey do not indicate a de.iciency in construction. 3s to the crack in
J(is 0tudyI1 this is likely to have occurred as a result o. #lockwork shrinka5e and remedial
work would entail cuttin5 out the plaster alon5 the cracked line1 .illin5/5routin5 the #lock
work crack1 .i9in5 rein.orcement mesh and reinstatin5 plaster locally. >n those
circumstances1 > do not consider that there is any lia#ility on the part o. '2".
Sn%//&n/
346. *he issues a#out sna55in5 relate on analysis to two periods1 De#ruary 2007 to a#out
8arch 200A )whilst :243 was still en5a5ed+ and 3pril to /uly 200A. *heir main relevance
lies in whether or not the sna55in5 operations caused any overall material delay.
350. *here is no dou#t that :243 and '2" considered in late 2007 and early 2007 that1
all thin5s #ein5 e?ual1 there was a reasona#le prospect o. achievin5 ;ractical "ompletion in
the early part o. 2007. >t is clear .rom earlier in this jud5ement however that it was
understood that there were elements o. the works that were not 5oin5 to #e complete #y such
an early sta5e. >ndeed1 as 2007 went on1 .or instance with the 2eather in the 2i#rary and the
2i5ht 'all1 it must have #een clear to all that ;ractical "ompletion would #e later rather
than sooner.
351. ;art o. the anticipation that ;ractical "ompletion would #e achieved early in 2007
was #ased on 8r 8ackay@s declared assertions that he did not wish '2" to carry out any
other previously uninstructed work and that he or 48' would #e instructin5 directly
employed artists and tradesmen therea.ter. 8r (owie said in evidence1 which > accept1 that
the #uildin5 to all intents and purposes looked complete #y the middle o. De#ruary 20071
that remainin5 major works such as outstandin5 e9ternal works had #een omitted and that
many o. the otherwise outstandin5 works such as the 2i5ht 'all1 the swimmin5 pool and
cinema ceilin5s and 0tin5ray doors were all driven #y the need .or the 4esi5n *eam to
resolve desi5n issues. *his e9plains why it was resolved that the sna55in5 process started as
#etween :243 and '2" in late De#ruary 2007.
352. *he sna55in5 process e..ectively involved '2" preparin5 a 5iven area .or sna55in5
and invitin5 :243 to come in and identi.y what remained to #e completed or put ri5ht.
:243 was to produce a list .or that area and '2" and their su#,contractors would then
work throu5h that list and .inish or put ri5ht the listed items. *his was to #e repeated .or all
o. the rooms.
353. 3t a site meetin5 on 7 De#ruary 20071 8r /oyce a5reed with :243 that sna55in5
must commence as soon as possi#le #ut he said that it would have to take place elementally
#ecause there were un.inished and delayed items in most rooms. Fn A De#ruary 20071 8r
/oyce wrote to :243 o..erin5 ;lot " as likely to #e practically complete on 17 De#ruary
2007 and asked .or an inspection .or 16 De#ruary 2007. '2" wished to undertake an
elemental sna55in5 process and he con.irmed that this would commence in conjunction with
:243 on 12 De#ruary 2007. :243@s response on the same day was that there were no areas
which could #e sna55ed. !otwithstandin5 this1 8r 0yme o. :243 issued ;reliminary
0na55in5 2ist !o 1 on 23 De#ruary 2007.
354. Fver the .ollowin5 months in 2007 more detailed sna55in5 lists were provided and it
is clear that a su#stantial num#er o. the individual sna5s were put ri5ht. >t is also clear that1
almost without e9ception1 the identi.ied sna5s1 althou5h numerous1 were minor1 consistin5
o. loose screws1 dirty marked sur.aces or poor paint .inishes and the like. >t is unnecessary
and undesira#le to e9amine these hundreds o. items in any detail. *here is no su55estion that
that any one o. the listed sna5s was particularly serious and there is no dou#t that they could
all have #een put ri5ht promptly and e9peditiously. (owever1 as the earlier and later parts o.
this jud5ement make clear1 there still remained throu5hout 2007 su#stantive work which
remained incompleteH this .or instance included the 2i5ht 'all1 the :arrisol ceilin5s1 the
2eather in the 2i#rary and the 0tin5ray doors. 3s 2007 went on1 it was and must have
#ecome clear that1 irrespective o. the sna55in5 which was #ein5 identi.ied and was #ein5
put ri5ht1 the 'orks would not #e achievin5 ;ractical "ompletion #y reason o. other
matters.
355. *here were in addition other issues #etween the parties relatin5 to sna55in5. 3s 2007
went on1 there was an increasin5 num#er o. directly employed artists and tradesmen
workin5 .or 8r and 8rs 8ackay on the site and there can #e little or no dou#t that their
presence contri#uted to the amount o. sna5s which had to #e addressed1 al#eit that the
impacts in 2007 were limited. !onetheless1 > accept 8r (owie@s evidence that their presence
disrupted the sna55in5 process in 2007H he said .or instance that :243 had di..iculties in
sna55in5 #ecause artists and tradesmen were in the way and protection provided #y '2" to
its .inished work was preventin5 them .rom 5ettin5 on. 3dditionally1 there was some
dilatoriness on the part o. :243 in its participation in the sna55in5 processH they en5a5ed
an independent consultant1 8r 0yme1 to do this e9ercise and it is clear that he was seriously
overstretched #oth in terms o. time and also #ecause he had not previously #een involved
si5ni.icantly in the projectH this was hi5hli5hted in a letter o. 8r (owie to :243 o. 16
0eptem#er 2007.
357. 8r (owie attached to his .irst statement a detailed analysis )&9hi#it /"(1+ o. the
sna55in5 lists )issued in 2007+ and when each sna5 was attended to. (e also classi.ied the
sna5s in to cate5ories: J!ot a de.ectI )120+1 J!ot '2 , Fut o. "ontract= )104+1 J!ot '2 T
4ama5e #y 3<*sI )4+1 J'2 #ut de minimisI )1163+1 J'2 not de minimisI )3A+1 J>n.o
re?uired to completeI )57+ and J3lready ;" )sta.. areas+I )13A+. (e identi.ies a total o.
1754 sna5s. 'hilst it is possi#le that this classi.ication is not 100L accurate1 > am wholly
satis.ied that it is #roadly accurate. *he lar5est cate5ory )the '2" Jde minimisI work+ was
such that > am satis.ied that #ut .or the other pro#lems the sna55in5 operation in 2007 did
not materially or at all impact upon the overall completion. *his is #ecause > have no dou#t
that i. the sna55in5 was the main and critical item o. work le.t to #e completed it would all
have #een resolved in all pro#a#ility within several weeks at most. >n so .ar as there is any
criticism in relation to the other heads1 it is not valid .or the reasons 5iven #y 8r (owie.
357. 3lthou5h 8r (owie was challen5ed to a very limited e9tent a#out /"(11 48'
)particularly 8r 8ackay+ and to a lesser e9tent its "ounsel waited until the .inal written
closin5 su#missions to produce a detailed analysis o. the lists and o. 8r (owieQs work on
the lists. *his involved a more detailed analysis o. the '2" diaries. (owever1 8r 8ackay@s
e9tensive work and many o. 48'@s "ounsel@s o#servations were simply not put to 8r
(owie. >t is 5enerally unaccepta#le and undesira#le1 i. any si5ni.icant points are to #e made
on the evidence in closin51 .or key elements not to have #een put to the relevant witnesses
on the other side. >t means that 8r (owie did not have the opportunity to react to any such
points and it stron5ly 5ives the impression that the points only taken in the closin5
su#missions were either not considered at all #e.ore the end o. the evidence or have simply
arisen as a.terthou5hts on what mi5ht have #een the case. >n this case1 48'@s "ounsel
accepted that 8r 8ackay@s analysis attached to the closin5 su#missions was in part
materially #ased on documents which were not in the "ourt #undles. *his a5ain is very
unsatis.actory. >t leads me to the view that > should attach very little wei5ht to this analysis.
>nso.ar as 48' is simply makin5 the o#servation )which it does+ that in 2007 and early in
200A .ew o. the sna5s were attri#uta#le to dama5e or incompetence on the part o. directly
employed artists and tradesmen1 > have #roadly already accepted that and1 indeed1 8r
(owie@s own analysis shows only 4 o. the 1754 sna5s were attri#uta#le to dama5e #y them.
35A. >t is common 5round that the num#er o. sna5s had reduced su#stantially #y the end
o. 2007 )in 4ecem#er 2007 there are only some 76 sna5s+. :y the time that :243 le.t in
8arch 200A1 a .urther 130 sna5s were identi.ied.
356. >n relation to sna5s in 200A1 it is clear1 and > accept that throu5hout the period .rom
a#out /anuary throu5h to /uly 200A there was a much 5reater impact on '2"@s sna55in5
operations as a result o. the activities o. the directly employed artists and tradesmen. *he
essence o. what #oth 8r /oyce and 8r (owie say is that there were su#stantial num#ers o.
workmen en5a5ed #y such artists and tradesmen and that they were su#stantially responsi#le
.or many o. the .urther sna5s listed in 200A1 initially #y :243 #ut a.ter their dismissal later
#y or on #ehal. o. !avi5ant. !avi5ant employed a .irm called (ickton to do the sna55in5
e9ercise. 8r (owie produced a .urther analysis )/"(2+ o. the (ickton sna55in5 lists which
showed that o. the 1767 items listed1 104A were attri#uta#le to directly employed artists and
tradesmen1 145 re?uired instructions .rom !avi5ant1 77 involved dama5e #y others and only
437 )27L+ needed to #e addressed #y '2". '2"@s evidence1 which > accept1 was that
matters which were the responsi#ility o. '2" )which were e9tremely minor+ were
addressed promptly #ut their pro5ress was impacted #y all the other sna55in5 work which
was not its responsi#ility. *here was and is a somewhat sterile de#ate on the evidence as to
how many directly employed artists and tradesmen were on site. >t is unnecessary to decide
precisely how many #ut it is a#solutely clear that there were a su#stantial num#er in 200A in
the period leadin5 up to certi.ied ;ractical "ompletion.
370. > accept 8r (owie@s evidence and analysis in relation to the (ickton e9ercise. (e
said under cross,e9amination that his analysis was #ased on what was essentially a5reed
#etween 8r Cad o. '2" and (ickton at the time. *his was #ased on an &9cel spreadsheet
compiled #y 8r Cad .rom the lists produced #y (ickton onto which he put his comments as
to who was responsi#le1 these then #ein5 sent #ack to (ickton and !avi5ant1 who a5reed
them. (e said in evidence that it was =a#solutely de.initively a5reed=. (e was not
challen5ed in any material way a#out the contents o. his second e9hi#it and he was
convincin5. *he e..orts made #y 8r 8ackay in his e9tensive 33 analysis )attached to his
"ounsels@ closin5 su#mission+ to seek to undermine that are wholly unconvincin5 #ecause
he was not directly involved in the sna55in5 processH 48' decided not to call anyone .rom
!avi5ant or (ickton as a witness. 3t most1 8r 8ackay has simply tried on some e9 post
.acto and second or third hand #asis to try to undermine what 8r (owie has said. *hat is
essentially an e9ercise to which > can 5ive little wei5ht.
371. > will deal with the impact o. the various sna55in5 e9ercises on completion in the
ne9t chapter o. this jud5ement which deals with e9tension o. time.
E;ten.&on of T&'e
372. >t is .irst necessary to consider what the "ontract #etween the parties re?uires in
relation to the .i9in5 o. an appropriate e9tension o. time. 'hilst the 3rchitect prior to the
actual ;ractical "ompletion can 5rant a prospective e9tension o. time1 which is e..ectively a
#est assessment o. what the likely .uture delay will #e as a result o. the -elevant &vents in
?uestion1 a court or ar#itrator has the advanta5e when reviewin5 what e9tensions were due
o. knowin5 what actually happened. *he "ourt or ar#itrator must decide on a #alance o.
pro#a#ilities what delay has actually #een caused #y such -elevant &vents as have #een
.ound to e9istH that is #y analo5y to the e9ercise that the 3rchitect has to do within 12 weeks
o. ;ractical "ompletion under "lause 25.3.3. (ow the court or ar#itrator makes that
decision must #e #ased on the evidence1 #oth actual and e9pert.
373. "lause 25.3.11 which deals with e9tensions o. time #ein5 5ranted prior to ;ractical
"ompletion1 clearly envisa5es that the e9tension must relate to the e9tent to which
=completion o. the 'orks is likely to #e delayed= #y the -elevant &vent or &vents. *he
e9tension to #e 5ranted within 12 weeks a.ter the date o. ;ractical "ompletion )"lause
25.3.3+ is to involve the .i9in5 o. a "ompletion 4ate which is =.air and reasona#le havin5
re5ard to any o. the -elevant &vents=. -eadin5 the two su#,clauses in conte9t and to5ether1
they essentially mean the same thin5. >. at the latest sta5e it is clear that the -elevant &vent
in ?uestion has actually delayed the 'orks #y1 say1 10 weeks1 it would #e an e9traordinary
state o. a..airs i. the e9tension o. time then 5ranted as .air and reasona#le was anythin5
other than 10 weeks.
374. >n B%$fo5r Be%tt0 B5&$)&n/ Lt) 3 C1e.ter'o5nt #ro<ert&e. Lt) )2003+ 72 :2- 11
8r /ustice "olman had to address several issues )under a /"* contract in similar .orm to the
"ontract here+ one o. which was whether in 5rantin5 an e9tension o. time the 3rchitect
should 5rant as an e9tension only the num#er o. days delay actually caused #y the -elevant
&vent. *he ar5ument was run that1 i. towards the end o. a period o. culpa#le delay a
variation order is issued which delays completion1 the "ontractor was entitled not simply to
an e9tension .or the period o. delay actually caused #y the variation #ut )#y reason o. its
timin5+ to a .ull e9tension up until the time that the variation was e9ecuted. *he learned
jud5e said that the =net= method was correct. (e said at ;a5e 34:
JDundamental to this e9ercise is an assessment o. whether the relevant event occurrin5
durin5 a period o. culpa#le delay has caused delay to the completion o. the 'orks and1
i. so1 how much delay.=
*his is consistent with the wordin5 o. "lause 25 in this case.
375. >n the conte9t o. this contractual #ased approach to e9tension1 one cannot there.ore
do a purely retrospective e9ercise. 'hat one can not do is to identi.y the last o. a num#er o.
events which delayed completion and then say it was that last event at the end which caused
the overall delay to the 'orks. Fne needs to consider what critically delayed the 'orks as
they went alon5. Dor instance in this case1 it would #e wron5 to say that the pro#lem with
the "ourtyard 0lidin5 4oors delayed the 'orks until it emer5ed as a pro#lem in 3pril 200A.
;ut another way1 it did not delay the 'orks )i. at all+ until it emer5ed as a pro#lem which
needed to #e addressed.
377. *here has #een a su#stantial de#ate #etween the parties as to how what is called
concurrent )or sometimes concurrent and co,e..ective+ causes o. delay should #e dealt with.
*his de#ate is only 5ermane where at least one o. the causes o. delay is a -elevant &vent
and the other is not. >t relates to where a period o. delay is .ound to have #een caused #y two
.actors. F. course1 the de#ate will depend upon the contractual terms in ?uestion #ut most o.
the de#ate in cases in this country and elsewhere has revolved around e9tension o. time
clauses similar to those contained in "lause 25 where the 3rchitect has to 5rant an e9tension
which is =.air and reasona#le=. *he two schools o. thou5ht1 which currently mi5ht #e
descri#ed as the &n5lish and the 0cottish schools1 are the &n5lish approach that the
"ontractor is entitled to a .ull e9tension o. time .or the delay caused #y the two or more
events )provided that one o. them is a -elevant &vent+ and the 0cottish approach which is
that the "ontractor only 5ets a reasona#ly apportioned part o. the concurrently caused delay.
*he 0cottish 3pproach is hi5hli5hted in the >nner (ouse case o. C&t0 Inn Lt) 3 S1e<1er)
Con.tr56t&on Lt) $2010% :2- 473.
377. >n Henr0 Boot Con.tr56t&on *UK, Lt) 3 M%$'%&.on Hote$ *M%n61e.ter, Lt)
)1666+ 70 "on 2- 321 8r /ustice 4yson had to decide primarily whether an ar#itrator had
jurisdiction to deal with a de.ence #y an employer that events such as variations and late
in.ormation had not delayed the contractor #ut that other matters were causes o. the delay.
3t ;ara5raph 131 he re.erred to some common 5round #etween the parties:
J0econd1 it is a5reed that i. there are two concurrent causes o. delay1 one o. which is a
relevant event1 and the other is not1 then the contractor is entitled to an e9tension o. time
.or the period o. delay caused #y the relevant event notwithstandin5 the concurrent
e..ect o. the other event. *hus1 to take a simple e9ample1 i. no work is possi#le on a site
.or a week not only #ecause o. the e9ceptionally inclement weather )a relevant event+1
and i. the .ailure to work durin5 that week is likely to delay the 'orks #eyond the
completion date #y one week1 and then i. he considers it .air and reasona#le to do so1
the architect is re?uired to 5rant an e9tension o. time o. one week. (e cannot re.use to
do so on the 5rounds that the delay would have occurred in any event #y reason o. the
shorta5e o. la#our.=
>t could thus #e said that the learned jud5e was simply repeatin5 the common 5round
#etween the parties rather than reach a considered decision on the issue. *hat said1 the jud5e
seems to have =run with the #all= in his second and third sentences and appears to have
endorsed that common 5round.
37A. 8r /ustice &dwards 0tuart said in De Beer. 3 Ato. Or&/&n IT Ser3&6e. UK Lt)
$2011% :2- 274:
J 177. *he 5eneral rule in construction and en5ineerin5 cases is that where there is
concurrent delay to completion caused #y matters .or which #oth employer and
contractor are responsi#le1 the contractor is entitled to an e9tension o. time #ut he
cannot recover in respect o. the loss caused #y the delay. >n the case o. the .ormer1 this
is #ecause the rule where delay is caused #y the employer is that not only must the
contractor complete within a reasona#le time #ut also the contractor must have a
reasona#le time within which to complete. >t there.ore does not matter i. the contractor
would have #een una#le to complete #y the contractual completion date i. there had
#een no #reaches o. contract #y the employer )or other events which entitled the
contractor to an e9tension o. time+1 #ecause he is entitled to have the time within which
to complete which the contract allows or which the employerQs conduct has made
reasona#ly necessary.I
376. >n a ship#uildin5 contract dispute in A)0%r) A25 D1%2& 3 SD M%r&ne Ser3&6e.
$2011% &'(" A4A "omm1 8r /ustice (am#len ?uoted as 5ood law what 8r /ustice 4yson
said at ;ara5raph 13 in the Henr0 Boot case )a#ove+:
J 277. >t is to #e noted that this e9ample involves a relevant event which caused a period
o. actual delay to the pro5ress o. the works T no work could #e done .or a week due to
the weather. >. that is esta#lished then the contractor is entitled to his e9tension o. time
even i. there is another concurrent cause o. that same delay. 3 use.ul workin5 de.inition
o. concurrent delay in this conte9t is =a period o. project overrun which is caused #y
two or more e..ective causes o. delay which are o. appro9imately e?ual causative
potency= T see the article Concurrent Delay #y /ohn 8arrin E" )2002+ 1A "onst 2/ !o.
7 437.
370. >n any event1 > am clearly o. the view that1 where there is an e9tension o. time clause
such as that a5reed upon in this case and where delay is caused #y two or more e..ective
causes1 one o. which entitles the "ontractor to an e9tension o. time as #ein5 a -elevant
&vent1 the "ontractor is entitled to a .ull e9tension o. time. ;art o. the lo5ic o. this is that
many o. the -elevant &vents would otherwise amount to acts o. prevention and that it would
#e wron5 in principle to construe "lause 25 on the #asis that the "ontractor should #e
denied a .ull e9tension o. time in those circumstances. 8ore importantly however1 there is a
strai5ht contractual interpretation o. "lause 25 which points very stron5ly in .avour o. the
view that1 provided that the -elevant &vents can #e shown to have delayed the 'orks1 the
"ontractor is entitled to an e9tension o. time .or the whole period o. delay caused #y the
-elevant &vents in ?uestion. *here is nothin5 in the wordin5 o. "lause 25 which e9pressly
su55ests that there is any sort o. proviso to the e..ect that an e9tension should #e reduced i.
the causation criterion is esta#lished. *he .act that the 3rchitect has to award a =.air and
reasona#le= e9tension does not imply that there should #e some apportionment in the case o.
concurrent delays. *he test is primarily a causation one. >t there.ore .ollows that1 althou5h o.
persuasive wei5ht1 the C&t0 Inn case is inapplica#le within this jurisdiction.
371. *he delay e9perts did not a5ree a#out very much. 'hat they did a5ree in their /oint
0tatement o. 13 4ecem#er 2011 was as .ollows:
J4. >t is necessary to analyse events primarily in the period a.ter 17 De#ruary 2007 in
order to assess the parties@ respective contentionsPas to the causes o. delay durin5 that
period. (owever1 in so .ar as events prior to 17 De#ruary 2007 also need to #e e9amined
in order to set the parties@ contentions in their proper .actual conte9t then those matters
will also #e considered relevant.
5. >t is important to have re5ard to the actual conte9t in the period a.ter De#ruary 20071
as opposed to e9aminin5 events in isolation.
7. Nery .ew pro5rammes were .ormally issued #y '2" a.ter 17 De#ruary 2007. >n
particular there is no pro5ramme o. all the works outstandin5 at that date which could
sensi#ly #e used as a #aseline in a retrospective pro5ramme analysis. >t is there.ore not
possi#le to carry out a =traditional= delay analysis which uses the "laimant@s
pro5rammes to identi.y the critical path durin5 the period a.ter 17 De#ruary 2007 in the
way one mi5ht normally e9pect. >t will instead #e necessary .or the e9perts to .orm a
view as to what were the critical )or drivin5+ delays in the period a.ter 17 De#ruary 2007
without the assistance which would normally #e availa#le .rom contemporaneously
produced pro5rammes.
7. 4espite the lack o. pro5rammes in the post 17 De#ruary 2007 period1 it ou5ht
nevertheless to #e possi#le to .orm conclusions on criticality durin5 this period1 #ased
on an o#jective view o. the availa#le evidence.I
3 note to ;ara5raph 7 re.ers to the .act that in 8ay 2007 '2" produced a pro5ramme
)revised .rom time to time therea.ter+ entitled =*ar5et ;ro5ramme .or -ecently >nstructed
'orks= which did not identi.y other works 5oin5 on or outstandin5 at the time. *he e9perts
considered that this pro5ramme did not provide su..icient .oundation .or a =traditional=
pro5ramme,#ased delay analysis #ut 8r -o#inson considered that it was nevertheless o.
some evidential value.
372. *here was some disa5reement #etween the e9perts as to what =;ractical "ompletion=
meant. >n reality it means completion .or all practical purposes and what that completion
entails must depend upon the nature1 scope and contractual de.initions o. the 'orks1 as they
may have developed #y way o. variation or 3rchitect@s instructions. "lause 17.1 o. the
"ontract "onditions simply re?uires the 3rchitect to certi.y when he or she considers that
;ractical "ompletion has #een achieved. *here is common 5round #etween the e9perts1 and
ri5htly so1 that de minimis sna55in5 should not #e a #ar to ;ractical "ompletion unless there
is so much o. it that the #uildin5 in ?uestion cannot #e used .or its intended purposes. 4r
3ldrid5e however 5oes .urther and su55ests that ;ractical "ompletion re?uirements can #e
rela9ed in e..ect #y a5reement #etween the partiesH he is correct to this e9tent. >n this
particular case1 48' throu5h its 3rchitect was entitled to omit items o. work and it must
.ollow that once an item o. work is omitted it is no lon5er part o. the 'orks and the .act that
it has not #een done or completed therea.ter should not hold up ;ractical "ompletion.
373. :oth e9perts say that they have adopted an o#jective approach #ut 4r 3ldrid5e
accepted that there were su#jective elements at least to some o. the e9ercises which he did.
374. Dor reasons summarised earlier in the jud5ement1 > .ound 8r -o#inson to #e at least
in this case the much #etter e9pert. (e adopted a much more o#jective approach than 4r
3ldrid5e and was much more care.ul in acceptin5 what his client had told him. 4r
3ldrid5e@s approach was1 as he put it1 to consider this ?uestion: Jwhat were the most
si5ni.icant matters which1 at any 5iven time1 were preventin5 practical completion .rom
#ein5 achievedWI *his on its .ace appears to #e not an unreasona#le ?uestion to pose #ut1 in
seekin5 to answer that1 he proceeded in what was in many respects a su#jective way. *hus1
he su55ested that the de.ective plasterwork )which was su#stantially addressed #y '2"
within a .ew weeks and well #e.ore numerous other items o. work which were always
#ound to #e completed months later+ caused su#stantial delay on no #asis other on analysis
than it needed to #e dealt with #e.ore ;ractical "ompletion could #e certi.ied. 35ain1 he
selected the pro#lems with the 2i.t in 2007 as a major cause o. delay in that year #ut this
approach was wholly .lawed .or the .ollowin5 reasons:
)a+ (e tried to assert that the 2i.t pro#lems were Jsi5ni.icant= #ecause #y a#out 8arch
2007 there was a possi#ility )and no more+ that a 7 to 6 month operation o. replacement
mi5ht #e re?uiredH this was clearly dependent on at the very least the li.t sha.t #ein5
materially out o. vertical1 which it never was and replacement was never done.
)#+ (e #ased his view in part on Jsi5ni.icanceI in e..ect on the stren5th o. his clients@
views at the time a#out how serious a pro#lem it was. *he reality is that '2" actually
did a si5ni.icant amount o. remedial work and the eventual re,claddin5 work was in the
overall conte9t o. the jo# minor work. *he clients@ views1 leavin5 aside the .act that >
have .ound them to #e coloured )at least in the case o. 8r 8ackay+1 were .ound #y the
adjudicator at the time )whose view has not really #een departed .rom in this case+ to #e
5rossly e9a55erated and there had #een a wron5.ul #ut su#stantial retention o. money
a5ainst this item.
)c+ (is view was also #ased in part on the physical impact on the upper .loors o. the
work #ein5 done particularly in Fcto#er and !ovem#er 2007 on the re,claddin5. (e
asserted1 without any real .actual #asis1 that this work would e..ectively have prevented
completion o. work on the upper .loors. *his was undermined #y the .acts that there was
little work to #e done in those upper .loors #y '2" at or a.ter that time )the #ulk
remainin5 to #e completed in the #asement+ and that directly employed contractors and
some workmen were a#le to and did 5et access whilst the re,claddin5 work was #ein5
done. >ndeed1 meetin5 minutes indicate that those attendin5 the "lient 0ite 'alk 3round
meetin5s were a#le with reasona#le impunity to 5et access to all .loors throu5hout
0eptem#er1 Fcto#er and !ovem#er.
375. 3nother serious .law in the approach adopted #y 4r 3ldrid5e was his willin5ness to
proceed on the #asis that one could i5nore a num#er o. the possi#le causes o. delay in so .ar
as they a..ected work which mi5ht have #een )#ut which was not+ omitted #y 48' or its
3rchitect. :y doin5 this1 he .elt a#le to seek to undermine various possi#le causes o. delay
as #ein5 causative #ecause he could say that1 i. a particular item o. work could or mi5ht #e
omitted1 it could not #e causin5 a delay. *his was wholly illo5ical. >. #oth parties were
aware that the client was considerin5 omittin5 an item o. work )and as a result the
"ontractor did nothin5 on the item o. work+ and then it was omitted1 then that may or may
not cause delay dependin5 on whether other items o. work were dependent upon the omitted
item o. work #ein5 done. >. only the client was aware that it mi5ht omit the item1 whether it
was eventually omitted or not1 delay could still #e caused i. the "ontractor@s pro5ress was
delayed. >. the item is never omitted and the "ontractor has to carry it out1 the "ontractor
may still #e delayed not only #y the need to e9ecute such work #ut also #y the delayed
decision as to whether the work should 5o ahead or not. *he reality check should 5enerally
#e to consider whether or not the actual item o. work which is said to cause delay was
actually omitted or not.
377. *he "ourt should #e very cautious a#out takin5 into account1 in the e9ercise o.
determinin5 what delays were caused #y what events1 theoretical possi#ilities as to what one
party or the other mi5ht have done )#ut did in .act not do+. *hus1 4r 3ldrid5e seemed to
su55est that various items o. work such as the 2eather in the 2i#rary could #e discounted in
whole or in part as a cause o. delay #ecause it was possi#le that 48' mi5ht have omitted it
alto5ether .rom the 'orks. >n that e9ample1 o. course1 the 2eather was not omitted. *his
possi#ility is and would #e completely irrelevant to the e9ercise considerin5 whether the
2eather in the 2i#rary delayed the 'orksH it is not as i. '2" was ordered to suspend work
on the 2eather in the 2i#rary.
377. 'hilst ultimately it must #e .or the "ourt to decide as a matter o. .act what delayed
the 'orks and .or how lon51 > was impressed #y the way 8r -o#inson approached the
e9ercise and unimpressed #y 4r 3ldrid5e@s approach in this case. 'hat 8r -o#inson did
was to analyse on a month #y month #asis )#roadly+ .rom De#ruary 2007 onwards what was
in reality impactin5 upon pro5ress. 'hat he sou5ht to do was to identi.y as .ar as possi#le
'2"@s actual pro5ress with the 'orks on a monthly #asis and its planned intentions .or
e9ecutin5 the remainder o. the 'orks.
37A. 8r -o#inson had re5ard to the likely lon5est se?uence o. the outstandin5 work on a
monthly #asis as #ein5 the primary pointer to what was delayin5 the work at any one time.
*his was a wholly lo5ical approach and1 indeed is the approach used #y most delay e9perts
when there is a usa#le #aseline pro5ramme .rom which to work. *he lo5ic is simply that i.
there are1 say1 two outstandin5 items o. work1 3 and :1 and 3 is always 5oin5 to take 20
weeks to complete #ut : is only 5oin5 to take 10 weeks1 it is 3 which is delayin5 the work
#ecause : is 5oin5 to .inish earlierH overall completion is there.ore dictated #y the len5th o.
time needed .or 3. ;ut another way1 it does not matter i. : takes 16 weeks1 it will #e the
completion o. 3 which has prevented completion. *hus1 i. one is seekin5 to ascertain what is
delayin5 a contractor at any one time1 one should 5enerally have re5ard to the item o. work
with the lon5est se?uence. *here was some sterile de#ate a#out whether 8r -o#inson was
adoptin5 a purely =prospective= approach when he made it clear that =as a reality check= he
had re5ard to what actually happened. *here is in my view nothin5 wron5 with such a
=reality check=. 3n e9ample mi5ht #e that1 say in De#ruary 2007 '2" was sayin5 al#eit in
5ood .aith that an item o. work would take 25 weeks .rom then onwards. >. in reality it only
took two weeks1 one would need to have re5ard to the e..icacy o. the earlier statement that it
would take lon5er. *here.ore it is necessary to have re5ard to how lon5 individual items
actually took to per.orm and not just have re5ard to what one party or the other at the time
was sayin5 it would take.
376. >n the assessment o. what events caused what overall or critical delay1 one needs also
to #ear in mind that it is not necessarily the last item or area o. work which is .inished last
which causes delay. *hus1 o.ten on #uildin5 projects1 the last item o. work is the .inal clean
up o. the site. *hat may only take two people one day to do #ut it is )almost always+ the jo#
which must #e done on the last day o. the jo#. >t is what delays that .inal operation which in
itsel. takes no lon5er than it was always 5oin5 to take which must #e assessed. *his is o.
some importance in this case #ecause it is ar5ued that sna55in5 )or an e9cessive amount o.
it+ itsel. delayed the project. >t is1 ri5htly1 common 5round that sna55in5 always has to #e
done #ecause1 with the #est will in the world1 there will #e minor de.iciencies1 #lemishes or
incomplete items o. work which will #e re?uired to #e completed #e.ore hand over.
F#viously1 i. there is an e9cessive amount o. sna55in5 and there.ore more time than would
otherwise have #een reasona#ly necessary to per.orm the de,sna55in5 e9ercise has to #e
e9pended1 it can potentially #e a cause o. delay in itsel..
3A0. *he de#ate a#out the =prospective= or =retrospectiveI approach to delay analysis was
also sterile #ecause #oth delay e9perts accepted that1 i. each approach was done correctly1
they should produce the same result. 3n underlyin5 pro#lem1 accepted as such #y #oth
e9perts1 was the a#sence o. a contemporaneous critical path pro5ramme .rom De#ruary 2007
onwards. >. there had #een one and its lo5ic was sound1 then #oth e9perts would in all
pro#a#ility have done the prospective e9ercise1 al#eit in the li5ht o. the events which
happened. 'hen that e9ercise can #e done1 the e9perts take what are called time slices
)usually every month+ to review a5ainst the pro5rammin5 lo5ic the actual pro5ress achieved
and likely to #e achieved in the .uture. *hat may produce1 .or instance1 a delay in 8onth 1
o. three weeks caused #y Dactor X1 which mi5ht #e adjusted downwards )or indeed
upwards+ in 8onth 31 to take into account actual pro5ress in relation to Dactor X. *hat could
not readily #e done here #ecause there was no such pro5ramme. >n my jud5ement1 '2"
cannot in practice #e criticised throu5hout 2007 .or this #ecause completion was perceived
#y all parties to #e not very .ar away and there were numerous individual items o. work
which needed to #e done1 many o. which were variations.
3A1. *hus1 8r -o#inson@s approach was a sensi#le variant on the conventional approach
o. delay e9perts which was to review on a month #y month #asis what in each month was
pro#a#ly delayin5 overall completion. (e then applied a cross check #y re.erence to what
actually happened. (owever1 #oth delay e9perts@ approach )al#eit to a lesser e9tent 8r
-o#inson@s+ involved in reality doin5 the e9ercise that the "ourt must do which is
essentially a .actual analysis as to what pro#a#ly delayed the 'orks overall.
3A2. 35ain1 in the delay assessment e9ercise the "ourt should #e very cautious a#out
5ivin5 si5ni.icant wei5ht to the supposedly contemporaneous views o. persons who did not
5ive evidence. F#vious e9amples are :2431 Mnowles and !avi5ant all o. whom could
have 5iven possi#ly use.ul evidence i. they had #een called. *hus1 :243 e9pressed the
view in the summer o. 2007 that the pro#lems with the 2i.t were seriously impactin5 on
overall completion. Fne can 5ive that little wei5ht #ecause it is unclear whether the relevant
person who made that statement had done any analysis or had considered all the matters
which have #een put in issue in these proceedin5s or even whether it was an in.ormed view.
>t is also clear that :243 was placed under the closest scrutiny and pressure #y 8r 8ackay
who was not only constantly critical o. them #ut also had retained Mnowles in e..ect to keep
them under control as he would have seen it. Mnowles was e..ectively o.ten tellin5 the
4esi5n *eam what it could and could not do and there was undou#tedly contractually
improper pressure placed on :243 and C<*. >t is clear that 8r 8ackay and Mnowles put
pressure on :243 not to 5rant any .urther e9tensions o. timeH indeed Mnowles was asked to
review the e9tensions o. time already 5ranted. >t is a .air in.erence that :243 .elt
pressurised to withhold si5ns o. acceptin5 complaints or claims made #y '2".
3A3. *he "ourt should also #e cautious a#out attachin5 wei5ht to what 8r and 8rs
8ackay thou5ht was important. *his is .or two reasons1 the .irst #ein5 the less than
.avoura#le view which > have .ormed a#out the relia#ility o. 8r 8ackay@s evidence. *he
second reason is that #oth 8r and 8rs 8ackay did not1 o#viously or at all and perhaps not
surprisin5ly1 analyse what were the contractual risks and responsi#ilities o. 48' and '2"
respectively1 particularly in relation to desi5n and to some e9tent procurement. >t remains
unclear what 48' were advised #y the 4esi5n *eam or Mnowles and1 o. course1 the "ourt
can not know what 48' was advised le5ally was the position. 8uch o. the 8ackays@
thinkin5 was predicated upon the #asis1 at least ultimately1 that '2" was responsi#le .or the
desi5n o. most o. the matters in issue1 such as the 3:'1 the 2i5ht 'all1 the "ourtyard
0lidin5 4oors1 and the 2eather in the 2i#rary and their views appear to have #een coloured
#y their incorrect assumption that '2" was responsi#le.
3A4. *hese areas o. caution hi5hli5hted a#ove are important 5enerally #ut also #ecause a
si5ni.icant part o. 4r 3ldrid5e@s views were related to the =si5ni.icance= o. particular items
or areas o. work1 on the #asis that a =si5ni.icant= area o. work which was delayed would or
at least could there.ore #e critical work which delayed the 'orks overall. (is views on what
were =si5ni.icant= works were su#stantially )al#eit not entirely+ dictated #y what he
ascertained or assumed was the view o. 8r and 8rs 8ackay or their 4esi5n *eam as to
si5ni.icance.
3A5. 3nother area o. caution revolves around how one treats what the parties were sayin5
at the time in relation to issues which later were resolved. 3n e9ample o. this relates to the
2i.t sha.t1 which initially was #elieved #y some on 48'@s side to #e vertically out o.
ali5nment. 'ithin several months however1 and certainly #y the time o. the 3djudicator@s
decision on the issue in late /uly 20071 it was accepted on all sides that this complaint was
not justi.ied. >n the early sta5es1 there was a limited possi#ility that all the 2i.t and 2i.t sha.t
work mi5ht have to #e taken out and replaced and that this could all take 7 to 6 months. >n
the result1 this did not happen. >n my view1 it is there.ore totally irrelevant in any analysis o.
what caused the delay1 #ecause certainly neither the supposed lack o. verticality nor any
need to replace the 2i.t was ever a5reed upon1 esta#lished or implemented. >n lo5ic also1 the
.act that one side )wron5ly+ perceives that a particular pro#lem is more serious than it turns
out to #e is in itsel. unlikely to #e relevant in ascertainin5 whether that pro#lem caused
delay.
3A7. > will now turn to an analysis and assessment o. what actually caused the overall
delays in this project. >n so doin51 > will proceed on a month #y month assessment #ecause
#oth e9perts accept that this would #e relevant and help.ul and this is a view with which >
concur.
3A7. >t is .irst necessary to review the position as at 17 De#ruary 2007 which was the
e9tended date .or completion allowed .or #y :243. 48' now accept that the e9tensions
o. time until 17 De#ruary 2007 are not challen5ea#le or at least they are not challen5ed. >t is
worth commentin5 that all the e9tensions o. time 5ranted in e..ect re.lect delayed
instructions or additional work. > said at the #e5innin5 o. this jud5ement that this project
was a =disaster waitin5 to happen= and this it proved to #e. >t is clear that 8r and 8rs
8ackay were very unhappy with :243 and that is a primary reason why 8r 8ackay called
in Mnowles. 'hether all the pro#lems which occurred up to mid,De#ruary 2007 were the
actiona#le .ault o. the 4esi5n *eam can not now #e ascertained1 lar5ely #ecause this trial has
not #een concerned with the pro.essional culpa#ility o. the 4esi5n *eam. 3n e9ample is the
2eather in the 2i#rary )re.erred to in detail a#ove+ in which 8r 8ackay apparently #elieved
that he had approved the leather in a#out 8ay 2005 #ut no,one seems to have told '2"
a#out this let alone what the leather was. &ither 8r 8ackay is mistaken in his evidence or
his 4esi5n *eam let him down #ecause they were tellin5 '2" later that the leather was =to
#e con.irmedI. &ither way1 that is not the .ault o. '2"1 or indeed 3dams. *here may well
also in mid,2007 have #een a realisation on the part o. the 4esi5n *eam that the leather
which had not #een ?uoted .or #y 3dams #ut which their client wanted would #e too
e9pensive1 possi#ly compared with the #ud5et. (owever1 it was their decision )with the
knowled5e or consent o. 8r 8ackay or not+ to seek .urther ?uotations .or di..erent types o.
leather. 35ain1 the cause o. the lateness o. the instruction ultimately in relation to the
2eather in the 2i#rary .alls somewhere within the 4esi5n *eam/8ackay a9is and it matters
not .or this "ourt whose .ault or responsi#ility within that a9is it was.
3AA. >t was #roadly common 5round in /anuary 2007 that there was a .air prospect that
most o. the works would #e completed at least internally #y the end o. /anuary 2007 )as
re.erred to in the minutes o. the site meetin5 held on 6 /anuary 2007+. &9ternal works were
runnin5 several weeks #ehind this1 al#eit much o. these works were omitted a .ew weeks
later. (owever1 '2" ?uali.ied its views1 .or instance in its ;ro5ress -eport on 16 /anuary
2007 which indicated that amon5st other thin5s the 2i5ht 'all would not #e complete #y the
end o. /anuary 2007 alon5 with various other work includin5 work as yet uninstructed.
3A6. *he very .act that :243 and '2" #e5an seriously to talk a#out sna55in5 in
De#ruary 2007 su55ests stron5ly that they #oth considered that the 'orks overall were not
.ar o.. completion1 #ecause sna55in5 invaria#ly precedes ;ractical "ompletion. (owever1
8r 8ackay started a5ain to raise issues relatin5 to plasterin5 which dou#tless #othered him
#ut which in the result turned out to #e e9a55eration at least in relation to that .or which
'2" was responsi#le.
360. >n its letter o. 13 De#ruary 20071 in the conte9t o. the proposed sna55in5 re5ime
'2" re.erred to the .act that its e9tension o. time claims already indicated completion as
late as 8ay 20071 one o. them #ein5 the =late leather selection < choice o. stitchin5=. >n its
-eport dated 17 De#ruary 20071 '2" indicated that si5ni.icant delays continued to #e
recorded in relation to the pool areas1 li.ts1 doors and .rames1 courtyards and e9ternal works.
3lthou5h it continued to tar5et completion within De#ruary 20071 it hi5hli5hted that the
2i5ht 'all1 the "ourtyard works1 the li#rary shelvin5 and joinery and the installation o.
leather work 5enerally )amon5st several other items o. work+ would not #e complete. *his
report was not challen5ed #y anyone at the time as containin5 any material error1 save
possi#ly .or the continuin5 .urore emanatin5 .rom 48' a#out the plasterwork. *he other
items o. work which were listed in this report were not said #y anyone at the time or durin5
the trial as #ein5 items which did1 would or mi5ht cause any overall delay to the project.
361. >n my jud5ement there.ore as at 17 De#ruary 2007 the key or more important
outstandin5 items o. work were the 2i5ht 'all )the 0econd Ceneration o. which had just
#een .ound to #e insu..iciently opa?ue+1 the 2i.t )which was #e5innin5 to #e noted as
de.ective+1 the 2i#rary joinery includin5 the 2eather which was to 5o on and #ehind it )no
.inal instructions havin5 then #een 5iven+1 the :arrisol ceilin5s in the cinema and the pool
areas and the li5htin5 a#ove it and the 0tin5ray doors )the ironmon5ery .or which had still
not #een resolved+. *his does not mean that there were not other items o. work still to #e
completed and these included such o. the plasterwork as needed repair1 the sna55in5 that
remained to #e done and other items o. work which have not .eatured as relevant to the
issues o. delay.
362. > will now turn to reviewin5 the project as it went alon5 .rom mid,De#ruary 2007
throu5h to mid,3u5ust 200A when ;ractical "ompletion was certi.ied. >t was ar5ued
throu5h cross,e9amination o. 8r -o#inson that it was arti.icial to review delay #y re.erence
to a monthly analysis1 or1 as he had done1 as at the end o. the month. >n one sense1 it is
arti.icial #ecause one could take any period o. time or any time o. the month to conduct
oneQs analysisH one could do it on a daily or a ?uarterly #asis. >t is however a proportionate
and sensi#le #asis to look at delays on a monthly #asis and indeed most delay e9perts
proceed on that #asis. 3s a tri#unal1 let alone a delay e9pert1 one has to 5et a handle on what
was delayin5 the project as it went alon5.
En) of Fe2r5%r0 -==>
363. Fn 27 De#ruary 20071 '2" produced to :243 a 2ist o. Futstandin5 'orks to
which there was no1 let alone a comprehensive1 response. >t estimated that the #ulk o. the
outstandin5 work would #e completed #y a#out 3pril althou5h it was di..icult to #e sure
a#out the ;ool (all and three o. the '"s. *he one item o. work which it was clear was not
5oin5 to #e completed #y then was the 2eather in the 2i#rary. >t was known #y the end o.
De#ruary 2007 that 3dams needed 17 to 16 weeks .rom the time they were 5iven the =5reen
li5ht=. !o approval had #een 5iven in relation to the stitchin5 and there was no prospect o.
there #ein5 an immediate approval. >t .ollowed there.ore that1 as no one su55ested at the
time or durin5 the trial that this was an unreasona#le period1 this leather work was not 5oin5
to #e .inished until /uly 2007 at the earliest. 3s appears .rom :243@s email dated 2 8arch
2007 to 8r 8ackay1 even :243 thou5ht that the leather was on =the immediate critical
path=.
364. > discount the pro#lems with the plasterwork as causin5 or contri#utin5 to any
overall delay durin5 this or indeed any later period. *here clearly was a very su#stantial
e9a55eration )which may not have #een deli#erate+ #y Mnowles and 8r 8ackay as to any
pro#lem which could #e attri#uted to a de.ault on the part o. '2". >n the result1 althou5h
there were many areas which needed some attention #y '2"1 the remedial works overall
were minor. F.ten1 as one witness descri#ed it1 all that was re?uired was the #rushin5 o. a
millimetre or two o. plaster onto relatively small areas to make it su..iciently .lat or level.
*he Jreality checkI in the case o. the plasterin5 de.ects is to consider how lon5 in practice it
would have taken i. it had #een the only thin5 holdin5 up practical completion. *he answer
would have #een no more than a .ew days work .or several plasterers. >t is inconceiva#le in
those circumstances that this work which in the result was su#stantially completed #y late
3pril 2007 in any way materially delayed the works.
365. > discount also the relevance o. the li.t de.ects at this sta5e. 3lthou5h su#stantial
complaints were #ein5 made #y the end o. De#ruary 20071 there was uncertainty as to what
was 5oin5 to #e re?uired. 0ome o. these complaints were not justi.ied.
367. > do not consider that outstandin5 sna55in5 was a cause o. delay at this sta5e either.
>t was or must have #een clear to all concerned1 as it is now clear to the "ourt1 that the
'orks overall were not 5oin5 to #e completed at least until /uly 2007 and it was and is more
than pro#a#le that any sna55in5 that needed to #e done would and could #e completed
within that time.rame.
367. 8r -o#inson@s view in relation to the position as at the end o. De#ruary 20071 with
which > concur1 is that on any proper analysis the 'orks were #ein5 critically delayed #y the
delayed instructions in relation to the desi5n1 procurement and installation o. the 2eather in
the 2i#rary. *his was a si5ni.icant item o. work and it had the lon5est se?uence as at that
sta5eH all thin5s #ein5 e?ual1 i. there had #een no pro#lem either with the procurement o. the
2eather or with anythin5 else1 the 'orks would not and could not have #een practically
complete #e.ore the 2eather work in the 2i#rary had #een completed. >ndeed1 > .ind that in
those circumstances all the 'orks would have #een completed #y then.
36A. 8r -o#inson assesses the critical delay at this sta5e as 22 weeks .rom 17 De#ruary
2007. (owever1 a more accurate analysis .rom the end o. De#ruary 2007 would #e 1A weeks
on the assumption that :2431 :ev or 8r 8ackay 5ave 3dams the J5reen li5htI. 3dams
had e..ectively ?uoted 17 to 16 weeks .rom that sta5e and 1A weeks would take completion
to 12 /uly 2007. >n my jud5ement there.ore1 looked at as at the end o. De#ruary 20071 '2"
had #een delayed #y 1A weeks as a result o. the delayed instruction and approval in relation
to the stitchin5 to the leather.
En) of M%r61 -==>
366. &ssentially the position remained the same in this period. *he mechanical and
electrical works were approachin5 completion durin5 the early part o. this month al#eit that
a .ew areas remained outstandin5 some o. which was dependent upon completion o. works
#y contractors directly employed #y 48' )0ound >deas and Fdyssey Class+ and some
other works which re?uired more in.ormationH .inal commissionin5 remained to #e done.
*he 2i5ht 'all remained in a state o. .lu9 whilst :2431 &?uation and 8r 8ackay decided
upon what was the #est approach to overcome the opacity pro#lem.
400. *he 2eather in the 2i#rary continued as #e.ore with no decisions and no approval
5iven to ena#le 3dams to proceed. 3 .urther 31 days delay in that operation was there.ore
attri#uta#le to the continued .ailure to make decisions and instruct '2" and 3dams what to
do.
401. :y the end o. 8arch 20071 the :arrisol ceilin5 in the cinema was apparently
complete #ut that in the swimmin5 pool area was notH this was #ecause it had #een resolved
that the ceilin5 .a#ric should not #e installed until the dirt, causin5 works were completed
)which they had not #een+. 0uch e9ternal works as remained within the responsi#ility o.
'2" were nearin5 completion.
402. >n relation to the 2i.t1 some remedial works had #een done and there was continuin5
discussion as to what was re?uired. 3lthou5h there was talk a#out the possi#ility o. the
whole 2i.t and 2i.t sha.t #ein5 replaced1 '2" made it clear that this was unnecessary and1
i. instructed1 could only #e instructed as a variation. > do not consider that it was ever
considered #y anyone to #e a realistic option to replace everythin5 and in the result it was
never doneH i. it had #een ordered1 it would have had to have #een #y way o. variation.
*here was a 5rowin5 disa5reement a#out what needed to #e done #ut it is clear that 8r
8ackay at that sta5e was disenchanted with the li.t which he descri#ed as a =monstrosity=.
"ertainly1 5iven what happened later1 > do not consider that the 2i.t pro#lems such as in
truth there were )in contra,distinction to what 48' said they were+ caused any delay in
this month.
403. *here.ore1 .or similar reasons to those 5iven in relation to De#ruary 20071 in my
jud5ement '2" was delayed #y a .urther 31 days in 8arch 2007 #y the continuin5 hiatus
relatin5 to the 2eather in the 2i#rary. *his would take the delay to ;ractical "ompletion up
to at least 13 3u5ust 2007.
En) of A<r&$ -==>
404. 0imilar considerations apply in relation to 3pril. >t was in this month that there was a
.inal resolution in relation to the plasterin5 de.ects and these were su#stantially put ri5ht #y
the end o. 3pril 2007H this demonstrates in the result that they did not materially impact on
completion in any event. *he position in relation to the 2i.t continued as #e.ore with there
#ein5 di..erences #etween the parties #ut some remedial work was #ein5 continued #y
'2". *he 2i5ht 'all continued to 5ive rise to de#ate #ut it was anticipated that .ollowin5
the production #y Dirman o. a .ull,siKe sample on or #y 25 3pril 2007 the 2i5ht 'all would
#e completed #y 11 /une 2007.
405. *here were numerous small items o. work #ein5 discussed and worked on1 some
involvin5 0ound >deas. 3 num#er o. doors were to #e increased in hei5ht in some o. the
upper rooms. 35ain there has #een no hint or su55estion that any o. these other items o.
work impacted on the delay.
407. Fn a parity o. reasonin5 as #e.ore1 my assessment is that the 'orks overall were
delayed #y the continuin5 lack o. instructions and approval relatin5 to the 2eather in the
2i#rary. 3 .urther 30 days delay occurred which would take completion o. to 13 0eptem#er
2007. *he 2eather in the 2i#rary represented the lon5est clearly identi.ia#le se?uence o.
work jud5ed at the end o. 3pril 2007.
En) of M%0 -==>
407. >t is clear that #y 8ay 2007 the 'orks1 as a whole and with some very o#vious
e9ceptions1 were closer to completion. 8r 'hid#orne o. C<* said in an e,mail to 8r
8ackay on 2 8ay 2007 that the =works are virtually complete apart .rom sna55in5=. *here
were various chan5es to the 'orks discussed as the month went on and a num#er o.
variation instructions )at least 20 in num#er+ were issued in the month in relation to them. >t
was however not correct to say that the works were virtually complete e9cept the sna55in5.
0na55in5 work remained outstandin5 al#eit that a su#stantial amount o. the noti.ied
sna55in5 had #een put ri5ht or completed. >t was not however the sna55in5 which was
drivin5 completion at this sta5e. *he 2i5ht 'all was incomplete and su#,contractors
)Cruppo+ were just startin5 to install di..erent stone .loorin5 to the ;ool (all which would
take a#out si9 weeks to complete. *here continued to #e some pro#lems relatin5 to the
:arrisol ceilin5s or the li5htin5 a#ove it in the cinema and the pool hall #ut1 all thin5s #ein5
e?ual1 it can not have #een anticipated that this would take more than a .ew weeks at most to
resolve. *he 0tin5ray doors remained an issue as the .ree issue ironmon5ery had still not
#een issued. *he lines remained drawn over the 2i.t with 8r 8ackay wantin5 to have his
own survey on verticality.
40A. >t was the 2eather in the 2i#rary however which remained the key operation with the
lon5est se?uence #oth on an anticipated as well as a retrospective #asis. *he .inal revised
sample was approved1 al#eit with some ?uali.ication1 on the 17 8ay 2007 and on 22 8ay
20071 as 8r /oyce said in evidence1 3dams con.irmed its proposed pro5rammeH indeed on
24 8ay 20071 3dams issued manu.acturin5 drawin5s .or the 2i#rary shelvin5. Fn 1 /une
20071 '2" con.irmed the likely completion as mid 0eptem#er 2007.
406. *here was there.ore no .urther delay overall caused #y events in 8ay 2007 and1 all
thin5s #ein5 e?ual1 completion would have occurred #y mid, 0eptem#er 2007.
En) of J5ne -==>
410. 8ost o. the work done durin5 /une 2007 involved either additional instructed work
or sna55in5 and cleanin5 works. >ndeed additional relatively minor variations were ordered
#y :243. *he *hird Ceneration o. the 2i5ht 'all was delivered to site and installation
#e5an on 22 /une 20071 althou5h it was interrupted #y :243@s instructions suspendin5
work whilst decisions were made a#out the .i#re,optic li5htin5 and the scallopin5 e..ect
which was emer5in5. 3s 8r /oyce said1 this was #ecause :243 wanted #oth to arran5e .or
48' to inspect and to e9periment with tape and di..usion silk to improve the spread o.
li5ht. !onetheless1 this state o. a..airs was not considered so ur5ent that there would #e
overall delays. *he :arrisol ceilin5s were a5ain in a state o. .lu9 with that in the cinema to
#e taken down a5ainH the pro#lems were a5ain to do with the li5htin5 desi5n. 3lthou5h some
ironmon5ery .or the 0tin5ray doors was supplied towards the end o. /une 20071 it was the
wron5 type.
411. :y /une1 it was .ully accepted #y 48' and :243 that there were no pro#lems with
the verticality o. the 2i.t 0ha.t. 8r 8ackay indicated at the "lient 0ite 'alk 3round
meetin5 o. 7 /une 2007 that he would accept a #ronKe cappin5 solution #ut 8r :ates o.
'2" indicated that once the remedial mastic work had #een done all instructed work would
have #een completed in this area. *here remained di..erences however as to the e9tent and
scope o. remedial work and '2" continued with remedial work. 3djudication was started
on 20 /une 2007 in relation to the withholdin5 o. money1 includin5 that in relation to the
2i.t.
412. 3:' emer5ed as an increasin5 pro#lem. (owever1 as > have .ormed the view that
'2" was not contractually responsi#le .or the pro#lems e9perienced in relation to 3:'
and #ecause ultimately all that was done #y them was the stainin5 re?uested #y the 8ackays
on 16 0eptem#er 20071 this did not at any time in 2007 delay '2".
413. >t was the 2eather which a5ain was a key .actor relatin5 to pro5ress. Fn 16 /une
20071 :243@s instruction 3>471" instructin5 the leather works to the 2ower (all 2o##y
was issued. *his )amon5st other variations+ was the su#ject matter o. '2"@s &9tension o.
*ime -e?uest !o 77 which su55ested that an e9tension o. time up to the week commencin5
A Fcto#er 2007 was called .or. 3 14 week period was re?uired .or this work which1 .rom the
date o. the order #y '2" to 3dams would take the completion to a#out 2A 0eptem#er 2007.
>t is clear however1 and indeed turned out to #e the case1 that the 2eather in the 2i#rary was
in practice intimately associated #y 3dams with the 2eather in the adjacent lo##y area and
that this additional work was to delay the overall 2eather in the 2i#rary.
414. >n my jud5ement there.ore1 the 2eather in the 2i#rary was delayed until a#out 2A
0eptem#er 2007. >t was inevita#ly however 5oin5 to #e the case that .ollowin5 the
completion o. the 2eather in the 2i#rary there would have to #e .inal sna55in5 and
completion o. the cleanin5 and other operations which would need to .ollow that work and
the 2i5ht 'all. *hus1 it is the case that the 'orks overall were delayed #y reason o. events
in /une 2007 and #e.ore #y a .urther two weeks until 12 Fcto#er 2007 and > accept the
evidence o. 8r /oyce and 8r -o#inson in relation to this two week period.
En) of J5$0 -==>
415. 3 num#er o. minor additional works were initiated durin5 /uly 20071 many to do
with additional or altered li5htin5 )in the 2ower (all lo##y1 the 4rawin5 -oom1 the
swimmin5 pool1 the cinema ceilin5 and the .irst .loor+. 3 .urther 15 3rchitect@s >nstructions
were issued in this month.
417. *he 2i5ht 'all continued to 5ive rise to di..iculties and Dirman was #ein5 re?uired
to e9periment with li5htin5 under the auspices o. &?uation who to5ether with :243 .ailed
to 5ive clear and .inite instructions as to what was re?uired. *here was little pro5ress #ut it
was #roadly #ein5 anticipated that the pro#lems could and would #e resolved #y sometime
in 0eptem#er1 particularly .ollowin5 the issue #y :243 o. 3>460" which re?uired1 #y way
o. variation1 additional work thereto. :y the end o. /uly 20071 the :arrisol ceilin5s1 althou5h
installed1 were appreciated as #ein5 unsatis.actory so .ar as the li5htin5 was concerned and
this remained to #e dealt with1 al#eit lar5ely at the e9pense o. &?uation. *he 0tin5ray doors
did not pro5ress #ecause o. the late delivery o. ironmon5ery .rom the .ree issue suppliers.
417. *he adjudicator issued his decision on 30 /uly 20071 decidin5 in e..ect that there had
continued to #e a su#stantially e9a55erated set o. complaints #y 48' in relation to the
2i.t. (owever1 he did .ind that there was a justi.ication .or withholdin5 some B301000 and in
e..ect that there were some continuin5 de.ects. '2" had done some remedial work earlier
in /une and /uly 2007. 8r 8ackay and .amily were away1 apparently on holiday1 .rom mid,
/uly until 0eptem#er 2007 #ut1 althou5h the over,claddin5 solution was considered #y the
8ackays at a meetin5 on 11 /uly 2007 as accepta#le1 it seems to have #een put on a =#ack,
#urner= until the adjudicator pu#lished his decision and the 8ackays returned .rom holiday.
*his su55ests that it was not considered #y anyone in /uly and 3u5ust 2007 as likely to
impact overall in relation to delay. 3ccordin5ly1 > do not consider that the 2i.t issues delayed
that 'orks at this sta5e.
41A. *he 2eather in the 2i#rary was su#ject to a .urther important variation1 3>4A1"
which involved the runnin5 o. a duct throu5h the ceilin5 void and #ehind the li#rary
shelvin5. 3s 8r /oyce has said and > accept1 this would and did a..ect the installation o. the
shelvin5 and #ecause the shelvin5 was to #e covered with leather1 a..ected the 2eather in the
2i#rary operation. *hat this did delay that operation is clear #ecause the shelvin5 could not
#e .ully installed whilst this ductin5 operation was #ein5 completed. >t was not to #e
completed until 7 0eptem#er 2007 and at least .ive weeks was re?uired therea.ter to
complete the installation. *he impact o. 3>4A1" was to delay the 2eather in the 2i#rary #y
just over si9 weeks )23 /uly )the date o. issue+ to 7 0eptem#er 2007+ #ut allowin5 .or the
.act that '2" envisa5ed that the 2eather in the 2i#rary would #e completed #y the end o.
the .irst week in Fcto#er 2007 and allowin5 a5ain a .urther two weeks therea.ter .or the
completion o. .inal sna55in5 and clean up1 the 2eather in the 2i#rary a5ain delayed
completion in this period up until a#out 21 Fcto#er 2007.
En) of A5/5.t -==>
416. 3u5ust 2007 was taken up mostly with a com#ination o. sna55in5 and additional and
varied works1 much o. which was to do with li5htin51 .or instance in relation to the "inema
and the swimmin5 pool ceilin5. 17 .urther 3rchitect@s >nstructions were issued and a num#er
o. directly employed contractors attended to carry out works .or 8r and 8rs 8ackay. *here
was little pro5ress on the 2i5ht 'all #ecause Dirman were not to #e in a position to return
the screens to site until early 0eptem#er 2007 althou5h it was anticipated that the work
would then only take a#out two weeks.
420. *he .irst delivery o. leather joinery .or the 2i#rary arrived on 15 3u5ust 2007 and #y
the end o. 3u5ust 2007 it was #ein5 anticipated that '2" would complete the 2eather 'ork
in the 2i#rary #y the end o. the .irst week in Fcto#er1 this primarily #ein5 attri#uta#le to the
need to deal with the air duct variation issued on 23 /uly 2007.
421. *he 0tin5ray doors work was delayed .urther #y the late delivery o. the .ree issue
#ronKe an5les and handles and there was a hiatus over a .ew days as to whether the doors
were to swin5 in one or #oth directions.
422. >n relation to the 2i.t1 '2" was proceedin5 to address sna5s identi.ied #y :243
with identi.ied works on 17 areas o. imper.ection in the sur.ace o. the mastic1 40 areas o.
void within the mastic joint1 43 packin5 pieces showin5 throu5h the mastic1 three areas o.
scratchin5 and some cover pressin5s to #e replaced. '2" replaced the cover pressin5s and
the mastic and 5lass su#,contractors carried out some remedial works in the last week o.
3u5ust 2007. Ftherwise '2" sou5ht instructions .rom :243 on how to overcome some o.
the mastic pro#lems. *he parties were o#viously awaitin5 the return o. the 8ackays .rom
holiday #e.ore decidin5 what an appropriate solution was.
423. *here was a continuin5 and serious pro#lem in the li5htin5 in the pool ceilin5
li5htin5 descri#ed in the :arrisol ceilin5 "hapter o. this jud5ement. &?uation had essentially
made errors and was at its own e9pense seekin5 to overcome them1 al#eit '2" and
!orstead were deployed to e..ect the re?uisite remedial solutions. 3 series o. 3rchitect@s
>nstructions #e5an to #e issued in 3u5ust 2007 to overcome these errors and it was
inevita#le that this would take time to achieve. >t is di..icult to #e certain as to precisely how
much delay overall was occasioned #y these issues #ut there certainly was overall and
additional delay #ein5 caused #y these li5htin5 variations and the time #ein5 taken to decide
upon them. 8y #est assessment on all the evidence is that #y the end o. 3u5ust 2007 the
:arrisol ceilin5 delays had caused and made it inevita#le that an additional three weeks o.
delay overall would occur. *his is in part at least #orne out #y the *ar5et ;ro5ramme .or
-ecently >nstructed 'orks dated 31 3u5ust 2007 produced #y '2" which identi.ied the
works with lon5er se?uences as the leather works in the 2ower (all and the li5htin5
alterations instructed under 3>46A"1 with completion overall indicated as mid to late
!ovem#er 2007. > do not see however that there were particular reasons which led to those
leather works #ein5 e9tended1 al#eit that1 as turned out to #e the case1 the li5htin5 issues in
the pool continued to have to #e resolved over the ne9t 6 to 10 weeks.
424. *hus1 the pro#lems with the :arrisol ceilin5 li5htin5 work rendered it inevita#le that
overall completion was delayed #y another three weeks1 that is until 11 !ovem#er 2007.


En) of Se<te'2er -==>
425. >t was in 0eptem#er 2007 that the issues with the 3:' assumed 5reater importance
in the minds o. 8r and 8rs 8ackay. (owever1 as #e.ore1 > do not consider that the stainin5
works initiated #y '2" in the latter hal. o. this month delayed the works. 3ll that was done
was stainin5 work which went throu5h into Fcto#er 2007 and that only took several men 2
to 3 weeks to do. *here was no critical delay .rom this #ecause the 'orks overall were never
5oin5 to #e completed in any event in Fcto#er1 .or reasons unconnected with the 3:'.
427. 8ore relatively minor variations were issued1 althou5h there were .urther si5ni.icant
additional works ordered .or the pool li5htin5.
427. *he 2i5ht 'all was installed #y Dirman a5ain to the amended desi5n #y a#out 21
0eptem#er 20071 althou5h towards the end o. the month the pro#lem with apparent
#lemishes was emer5in5 and #ein5 investi5ated.
42A. 3s .or the 2eather in the 2i#rary1 this was #ein5 .itted throu5hout the month al#eit it
was to continue into the .ollowin5 month. *his was delayed durin5 the month #y the desi5n
chan5es instructed #y :243 on 3 and 4 0eptem#er 2007 )3>50A" relatin5 to a ceilin5
ventilation 5rille and 3>510" resolvin5 a clash #etween a #ulkhead and the hi5her level than
ever shelvin5+ and other chan5es relatin5 to the li#rary slidin5 door. *he leather panels in
the 2ower (all 2o##y1 the carcassin5 havin5 #een .i9ed #etween 10 and 1A 0eptem#er
20071 were .i9ed #etween 1A 0eptem#er and the end o. the month. *his work was much
simpler than that in the 2i#rary and lar5ely comprised vertical panels to the walls.
426. *he work on the li5htin5 a#ove the :arrisol ceilin5 in the pool was a5ain delayed #y
more chan5es1 with works initially #ein5 suspended on 16 0eptem#er 2007 #y :243 and
then varied to install 2&4 strip li5ht .ittin5s and two new #anks o. li5hts to the so..it. *here
were .urther amendments to the li5htin5 in the :arrisol ceilin5 in the cinema. *hus1 althou5h
work was done durin5 the month1 it remained incomplete.
430. 3 major pro#lem #e5an to occur in relation to the 0tin5ray doors. 3lthou5h the work
o. cuttin5 and preparin5 the 84D panels .or these doors was done on site up to 24
0eptem#er 20071 :ased Gpon1 which was to apply the specialist 0tin5ray .inish1 had so
much other work on #y this sta5e that it said that it was not a#le to start this work until
!ovem#er 2007 and it would take some .our weeks to complete. 3s all the delays relatin5 to
the 0tin5ray doors were the responsi#ility o. 48'1 this meant that the 'orks would not
now #e completed until 4ecem#er 2007.
431. 3s .or the 2i.t1 the parties had moved a lot closer to decidin5 upon the use o. #ronKe
over,claddin5 and1 althou5h the .inal a5reement was not reached until early Fcto#er 20071 it
was increasin5ly pro#a#le that this solution would #e accepted. 3lthou5h the .inal accepted
o..er dated 2 Fcto#er 2007 attached a pro5ramme .or the work indicatin5 completion #y 14
4ecem#er 20071 in the result1 the 2i.t remedial works1 which were the risk and
responsi#ility o. '2"1 were su#stantially completed in early !ovem#er 2007.
432. 3s #e.ore sna55in5 was continuin5 and #y the end o. 0eptem#er there were
relatively .ew sna5s which remain to #e carried out althou5h #y reason o. all the continuin5
work in the #asement )pool1 2i#rary1 cinema and 2ower (all 2o##y+ it would not #e
completed until that work was itsel. complete. *he sna55in5 clearly was not delayin5 the
'orks overall.
433. :y the end o. 0eptem#er 20071 the 'orks had #een .urther delayed #y the delays in
relation to the 0tin5ray doors to5ether with the continuin5 li5htin5 amendments which
remained to #e done. *he delay in completion had e9tended to 7 4ecem#er 2007 as a result.
En) of O6to2er -==> .
434. *hrou5hout most o. Fcto#er 20071 3dams was completin5 the joinery in the 2i#rary
includin5 the skirtin5s to the leathered joinery. !ew li5htin5 was #ein5 installed towards the
end o. Fcto#er 2007 a#ove the :arrisol ceilin5s in #oth the cinema and pool areas. *here
was some other work 5oin5 on #ut most o. it was relatively minor and much o. it was
additional work. 0ome 14 o..icial 3rchitect@s >nstructions were issued .or e9tra work
435. 3 major row erupted #etween 8r and 8rs 8ackay and :243 as to the a#sence o.
under,.loor heatin5 on the 5round .loor to the Mitchen and .amily -oom. *his 5enerated
su#stantial heat #ut it is not su55ested that either it was the .ault o. '2" or it contri#uted to
any overall delay.
437. >n Fcto#er 20071 the *hird Ceneration 2i5ht 'all came under close scrutiny in
relation to the apparent #lemishes that were present. *his was investi5ated and considered in
this month #ut it was not until later that the screens and doors were removed yet a5ain to #e
re,assem#led o.. site.
437. *he 2i.t re,claddin5 work was started on 11 Fcto#er 2007 and was still #ein5 carried
out at the end o. the month1 al#eit it was to #e completed relatively shortly therea.ter.
43A. *he 0tin5ray doors were o.. site at :ased Gpon@s works awaitin5 the 0tin5ray
treatment and there was to #e no improvement on the completion date o. early 4ecem#er
2007.
436. *here was there.ore no particular additional delay caused #y events in Fcto#er 2007
with completion still delayed until 7 4ecem#er 2007.
En) of No3e'2er -==>
440. Narious chan5es and delays occurred in relation to the 0tin5ray doors1 with the issues
a#out the door stops and patination. *he .inished door panels remain to #e delivered #ack to
the site and installation was to occur in 4ecem#er. 0na55in51 as #e.ore1 was keepin5 pace
with the 5eneral pro5ress and very .ew sna5s remain to #e attended to. *he re,claddin5 work
to the 2i.t was .inally completed in a#out mid,!ovem#er 2007 and accepted as satis.actory.
*he 2i5ht 'all screens were #ein5 re,constructed under the closer control o. :243 and it
was inevita#le #y the end o. !ovem#er 2007 that these works on site would not #e
completed si5ni.icantly #e.ore "hristmas 2007 )as indeed they were not+. *he 2eather in the
2i#rary had #een completed #ut the .ree issue ironmon5ery had to #e installed. *his work
and that in the 2ower 2o##y was completed in !ovem#er. *he :arrisol ceilin5 li5htin5 in
the pool was completed #ut at the end o. !ovem#er )3>547"+ '2" was instructed #y way
o. variation to test and run the li5hts .or 100 hours over a one,week periodH this continued
until 5 4ecem#er 2007.
441. > am satis.ied that '2" was .urther delayed #y another two weeks )up until 21
4ecem#er 2007+ #y the .urther events which occurred in !ovem#er 20071 .rom essentially
the continuin5 .urther chan5es to the 0tin5ray doors and the continuin5 additional work
#ein5 called .or in relation to the 2i5ht 'all.
En) of De6e'2er -==>
442. Fnly 3dams and !orstead o. '2"@s su#,contractors were workin5 on site in this
month. *he 0tin5ray doors were #ein5 installed #etween 3 and 1A 4ecem#er1 al#eit that the
work could not #e completed. Fther relatively minor items o. work were discussed #ut even
when the 'orks did not seem to #e .ar o.. #ein5 practically complete a .urther si9
3rchitect@s >nstructions .or variations were issued. *he Dourth Ceneration 2i5ht 'all was
delivered to the site #ut its installation was not completed #y the end o. 4ecem#er 2007.
*here were pro#lems with the :arrisol ceilin5s which had inevita#ly #een dama5ed due to
them #ein5 taken on and o.. on numerous occasions to ena#le all the li5htin5 chan5es to #e
carried out. :243 issued 3>55" in mid,4ecem#er 2007 instructin5 the provision o. a new
ceilin5 in the ;ool (allH this was anticipated to #e provided and installed #y the .irst week in
/anuary 200A. 3nother 3rchitect@s >nstruction 3>542" called .or the provision o. additional
li5htin5 in the cinema which was to #e carried out in the second hal. o. /anuary 200A.
443. :y 20 4ecem#er 2007 only 77 outstandin5 sna5s were noted #y :243 and it is
likely that these would have #een completed #y the time that the remainder o. the work was
completed.
444. > have .ormed the view that the events o. 4ecem#er 20071 and in particular and
primarily1 the 2i5ht 'all issues1 caused the 'orks to #e yet .urther delayed. *his was
necessarily impacted #y the "hristmas and !ew Uear (oliday and the overall additional
delay was three weeks which would have taken completion to 11 /anuary 2007.
J%n5%r0 %n) Fe2r5%r0 -==?
445. >t is convenient to take these two months to5ether. 3lthou5h relatively minor items
o. work remained to #e completed1 such as sna55in51 the installation o. several taps1 the
.inal .i9in5 o. the #elatedly delivered ironmon5ery to the 0tin5ray doors and o. other
ironmon5ery1 the key item o. work which remained outstandin5 was the 2i5ht 'all #ut
which was carried out throu5hout the /anuary )and indeed the De#ruary+ 200A period. >t had
not #een completed #y the end o. /anuary #ecause1 althou5h lar5ely .i9ed in place1 there had
to #e numerous adjustments as called .or mostly #y &?uation to improve li5ht projection
into the doors. 8r 8ackay e9pressed concern in early De#ruary 200A a#out whether there
were di..erences in the li5ht levels #etween various doors. :y 11 De#ruary 200A &?uation
was indicatin5 that thin5s were somewhat #etter #ut #y 20 De#ruary 200A 8r 8ackay was
pointin5 out that he did not like the stainless steel an5les .i9ed to the side o. the 5lass panels1
#ut some o. the panels were #owed and the li5ht was not uni.orm across all o. the panels.
*hese issues metamorphosed into the .inal ar5ument #etween the parties as to whether and
to what e9tent i. at all '2" was lia#le .or the ?uality o. the .inal installation.
447. Fn 21 De#ruary 200A1 '2" wrote to :243 re.errin5 to the .act that it had
instructed the su#contractor to complete the .inal .inish to the .loors ).inal oilin5 o. wooden
.loors+ which was to #e completed #y 2A De#ruary 200A. Ftherwise1 '2" was sayin5 that it
considered that the 'orks would have reached ;ractical "ompletion #y 26 De#ruary 200A
and1 in anticipation1 it intended to do what was appropriate to leave the site.
447. 8r and 8rs 8ackay apparently did not want to take over the site and on 27 De#ruary
200A 8r 8ackay e,mailed :243 sayin5 in e..ect that the house was clearly not .inished1
primarily due to the 2i5ht 'all and the continuin5 de.iciency as he saw it in the 3:'. >t is
clear that he applied as much pressure as he could on :243 not to award ;ractical
"ompletion. F. course1 #y this sta5e there were an increasin5 num#er o. directly employed
contractors on site.
44A. > am satis.ied that the events o. /anuary and De#ruary 200A )e..ectively the 2i5ht
'all+ delayed the completion o. the 'orks until 26 De#ruary 200A. *he main reason was the
implementin5 and then adjustin5 o. the Dourth Ceneration 2i5ht 'all which still did not
satis.y 8r 8ackayH althou5h one can understand his disappointment1 he had #een advised
#y Mnowles that :243 was lar5ely to #lame #ut he continued to #elieve1 ?uite wron5ly1 that
it was the .ault o. '2".
M%r61 to A5/5.t -==?
446. > take this composite period as one in which the dominatin5 events which impacted
upon delay were the 2i5ht 'all )still in the opinion o. the 8ackays de.icient+1 the 3:'
)considered #y the 8ackays as the .ault o. '2" which needed to #e remedied+ and1 as .rom
3pril 200A the "ourtyard 0lidin5 4oors )a5ain the responsi#ility .or which was to #e
levelled at '2"+. >t is clear however that irrespective o. these issues Gnit " was not ready
.or occupation #y the 8ackays until 3u5ust 200A in any event #y reason o. the e9tensive
work1 .ittin5s and .urnishin5s #e carried out in 200A #y artists1 tradesmen and other
contractors en5a5ed directly #y them or 48'.
450. :y a#out De#ruary 200A there were less than 100 sna5s to #e attended to #y '2". >t
was in any event impossi#le or at the very least impractica#le .or '2" to complete the
sna55in5 in its entirety until the #asement works were completed. *his is hi5hli5hted #y the
.act that in :243@s sna55in5 list o. 21 /anuary 200A there were only 56 outstandin5 sna5s
identi.ied1 4A o. which were in the #asement where the 2i5ht 'all works were proceedin5.
451. De#ruary and 8arch 200A were complicated administratively #y the .act that :243
was in the process o. #ein5 dismissed #y 48' and it is clear that :243@s hands were
somewhat tied. !o .urther sna55in5 lists were produced in De#ruary 200A. Fn 11 8arch
200A1 '2" wrote to :243:
J'e re.er to our letter o. 5 8arch 200A where we noted that the areas/rooms1 which you
consider have not #een sna55ed1 have in .act #een completed .or many months. >t seems
to us that the reason why you .eel you cannot sna5 these rooms is #ecause o. the
presence o. 48'@s artists < tradesmen. 'e con.irm that the artists < tradesmen are
workin5 under the direct supervision o. 48' and its site #ased project mana5er1
there.ore1 we consider it wron5 .or you to imply that we are preventin5 you .rom
sna55in5 these areas. (ad we #een aware o. this situation sooner we would have put
steps in place to ensure that you had unimpeded access to these areas.
P'ith ade?uate prior notice1 we can make arran5ements with Cavin :artlett .or
48'@s artists and tradesmen to vacate these areas. 'e will also remove all protection
and carry out a modest clean.
'e point out that the protection is only in place #ecause o. the presence o. 48'@0
artists and tradesmen. 3lso1 the condition o. the site1 as we have mentioned to you on
numerous occasions1 is a direct result o. 48'@s artists and tradesmenPI
*his letter hi5hli5hts the hiatus which was occurrin5 on site. 3part .rom the 2i5ht 'all and
the 3:' pro#lems1 '2" could not e..ectively do the .inal operations which were the
removal o. the e9tensive protection ).or instance packin5 and plastic sheetin5+ and the .inal
clean #ecause the numerous operations #ein5 carried out #y the directly employed
contractors were 5oin5 on. *his was con.irmed in an e,mail dated 5 8ay 200A .rom 8r
:artlett o. -2: to the 8ackays in which he a5reed at least Jin partI that the majority o. the
dust had #een J5enerated #y the out o. contract trades=.
452. (owever1 clearly under pressure and almost as its last administrative act1 :243
produced a .urther sna55in5 list on 1A 8arch 200A showin5 a total o. 370 new sna5s
#etween the #asement and .irst .loors. *his was surprisin5 5iven that the 5round and .irst
.loor had already #een su#stantially de,sna55ed in 2007 and /anuary 200A. (owever it is
clear that a su#stantial num#er o. these were attri#uta#le to the acts or omissions o. the
directly employed contractors.
453. *he sna55in5 process1 in so .ar as it involved the 3rchitect1 lar5ely went into a state
o. lim#o .ollowin5 the departure o. :243 and it is clear that1 when !avi5ant came on
#oard1 it .elt una#le itsel. to 5et involved in the sna55in5 process1 which re?uired the
3rchitect to list the sna5s which needed to #e attended to. *here.ore1 (icktons were retained
#y or on #ehal. o. 48' to initiate the process a5ain and the lists were not produced until
late 8ay 5oin5 into /une 200A. >t is not surprisin5 that neither (icktons nor !avi5ant could
e9pect to #e .ully co5nisant o. all the issues and as to who was responsi#le .or what. 3ll
primarily that they could .ocus on was that there appeared1 say on the .ace o. all a wall or a
cup#oard1 a de.iciency which would then #e listed to #e dealt with. *hey could not #e
criticised .or .indin5 it at least di..icult i. not impossi#le to di..erentiate initially #etween
de.iciencies which were the responsi#ility o. '2" and the directly employed contractors. >t
is clear that '2" addressed sna5s e9tremely promptly and e..icientlyH this is demonstrated
#y the .act that o. the 437 sna5s identi.ied in '2"@s works #y (icktons #y 10 /une 200A1
2A3 had #een attended to #y 27 /une1 and the vast majority1 e9ceedin5 17001 had #een dealt
with #y 7 /uly 200A1 when !avi5ant considered internally that ;ractical "ompletion had
#een achieved )#ar the 2i5ht 'all and the "ourtyard 0lidin5 4oors+.
454. &lsewhere in this jud5ement1 > have made .indin5s as to the responsi#ility in relation
to the 2i5ht 'all1 the 3:' and the "ourtyard 0lidin5 doors. >n relation to the 3:'1 it is1
ri5htly1 common 5round that the instruction #y 48' to >nterior /oinery to re,stain the
3:' took that work out o. the "ontract. 3s the responsi#ility .or the 2i5ht 'all and the
"ourtyard 0lidin5 doors issues was not '2"@s1 !avi5ant had no ri5ht to issue instructions
to '2" to put ri5ht at its own e9pense the de.icienciesH it could have1 ar5ua#ly1 instructed
'2" to do the .urther work1 lar5ely unspeci.ied1 as a variation #ut since '2" had no
desi5n responsi#ility such instructions would have had to have included directions as to
what to do. >. that had happened1 '2" would have #een entitled to an e9tension o. time .or
as lon5 as it reasona#ly took to comply with such instructions.
455. &ven !avi5ant #elieved that1 apart .rom the "ourtyard 0lidin5 doors and1 possi#ly
2i5ht 'all1 the 'orks were practically complete on 7 /uly 200A. >t is e?ually clear that 8r
8ackay was simply not prepared to accept this. Gltimately1 only a#out .ive weeks later and
only shortly #e.ore when the 8ackays wanted to move in1 the outstandin5 work relatin5 to
the "ourtyard 0lidin5 doors and 2i5ht 'all were omitted and ;ractical "ompletion was
certi.ied.
457. >t is su55ested on #ehal. o. 48' that the real cause o. delay durin5 this .inal 5[
months was the sna55in5 operation. *his is an alternative case #ecause the primary case is
that the 3:'1 2i5ht 'all and the "ourtyard 0lidin5 doors #etween them were the main and
dominant causes o. the delay up to mid 3u5ust 200A. *his is however a .actually unjusti.ied
su55estion. 3s indicated in the 0na55in5 chapter o. this jud5ement1 the lar5e majority o. the
sna5s were e..ectively caused #y the directly employed contractors or #y other .actors .or
which '2" was not responsi#le. 3 si5ni.icant part o. this delay was caused #y the a#sence
o. any e..ective involvement #y the newly appointed 3rchitect or (icktons in the sna55in5
process much #e.ore the end o. 8ay 200A. >n my jud5ement1 the sna55in5 .or which '2"
actually was contractually responsi#le would1 a#sent these .actors have #een dealt with
within several weeks at the outside.
457. > have .ormed the view that ;ractical "ompletion occurred on 7 /uly 200A. Nirtually
all the sna5s had #een attended to and they could not have e..ectively #een attended to
#e.ore then #y reason o. the presence o. the directly employed contractors on the site1 who
were not only causin5 there to #e a su#stantial num#er o. sna5s #ut who were 5ettin5 in the
way o. any .inal .inishin5 o.. o. the de,sna55in5 work. 3 second reason in reality and
concurrently with this was the .ailure o. !avi5ant to provide e..ective and detailed
instructions to '2" as to what to do in relation to the "ourtyard 0lidin5 4oors and the
2i5ht 'all. *here is no issue that the "ourt does have jurisdiction to .i9 the appropriate date
o. ;ractical "ompletion.
45A. > am satis.ied that '2" was delayed there.ore #y .actors occurrin5 in the 8arch to
/uly 200A period that entitle it to an e9tension o. time throu5h to 7 /uly 200A when the
'orks were1 properly analysed1 practically complete. *hese .actors were the a#sence o.
e..ective and in.ormed instructions .rom the 3rchitects as to what should #e done in relation
to 3:'1 the 2i5ht 'all and the "ourtyard 0lidin5 4oors. 3 concurrent cause was the delays
and additions to the sna55in5 caused #y the presence o. the numerous directly employed
contractors which was not the risk or responsi#ility o. '2".
Con6$5.&on on E;ten.&on of T&'e
456. >n my jud5ement1 '2" is and was entitled to an e9tension o. time throu5h to the
date o. ;ractical "ompletion1 7 /uly 200A. *he issues o. concurrent and co,e..ective delays
do not arise #ecause none o. the actual causes o. delay a.ter that date were the .ault1 risk or
responsi#ility o. '2". *he only occasions when there were concurrent causes o. delay
arose where such causes were all the contractual risk o. 48'. 8ost o. the actual or alle5ed
major causes o. delay )the 3:'1 the 2i5ht 'all1 the "ourtyard 0lidin5 4oors1 the 2eather in
the 2i#rary1 the 0tin5ray 4oors or the :arrisol ceilin5s+ were positively not the contractual
responsi#ility o. '2". 'hilst some o. the plasterwork and the 2i.t complaints raised in
2007 were the responsi#ility o. '2"1 they had no impact on the overall delay.
470. >n conclusion1 the delays to overall completion were caused #y the .ollowin5:
)a+ De#ruary to /uly 2007 : 2eather in the 2i#rary .rom 17 De#ruary 2007 to 21 Fcto#er
2007 )late instructions and variations+.
)#+ 3u5ust 2007 : :arrisol ceilin5s .rom 21 Fcto#er to 11 !ovem#er 2007 )late
instructions and variations+.
)c+ 0eptem#er 2007 : 0tin5ray 4oors and :arrisol ceilin5s .rom 11 !ovem#er 2007 to 7
4ecem#er 2007 )late instructions and variations+.

)d+ Fcto#er 2007 : !one.

)e+ !ovem#er 2007 : 0tin5ray 4oors and 2i5ht 'all .rom 7 to 21 4ecem#er 2007 )late
instructions and variations+.

).+ 4ecem#er 2007 : 2i5ht 'all .rom 21 4ecem#er 2007 to 11 /anuary 200A )late
instructions and variations+.

)5+ /anuary to De#ruary 200A : 2i5ht 'all .rom 11 /anuary to 26 De#ruary 200A )late
instructions and variations+.

)h+ 8arch to 7 /uly 200A : 3:'1 2i5ht 'all1 "ourtyard 0lidin5 4oors and delays #y
artists tradesmen and others .rom 26 De#ruary to 7 /uly 200A )late instructions and
variations and artists and tradesmen delays+.
Q5%nt5' ( De$%0
471. '2" claims B114261177 in respect o. its own prolon5ation costs )whilst 48'
considers that B7A1340.A0 is dueH a di..erence o. B113701A37.20+1 B77A1251.6A in relation to
sums paid or proposed to #e paid to su#,contractors .or delay and disruption )48'@s
ori5inal case #ein5 that nothin5 at all was due in that re5ard #ut now acceptin5 that
B611377.66 in respect o. payments .or loss and e9pense included in the E0@s valuation no.
47 is indeed due+1 a di..erence #etween the parties o. B5A71A73.661 and B2771171.6A in
relation to loss o. overheads and pro.it )48' contendin5 that nothin5 at all is due in
relation thereto+.
472. *he key provision is "lause 27 o. the "ontract "onditions as amended:
J27.1 >. the "ontractor makes written application to the 3rchitect that he has incurred or
is likely to incur direct loss and/or e9pense )o. which the "ontractor may 5ive his
?uanti.ication+ in the e9ecution o. this "ontract .or which he would not #e reim#ursed
#y a payment under any other provision in this "ontractP#ecause the re5ular pro5ress
o. the 'orks or o. any part thereo. has #een or is likely to #e materially a..ected #y any
one or more o. the matters re.erred to in clause 27.2H and i. and as soon as the 3rchitect
is o. the opinion thatPthe re5ular pro5ress o. the 'orks or o. any part thereo. has #een
or is likely to #e so materially a..ected as set out in the application o. the "ontractor
then the 3rchitect .rom time to time therea.ter shall ascertain1 or shall instruct the
Euantity 0urveyor to ascertain1 the amount o. such loss and/or e9pense which has #een
or is #ein5 incurred #y the "ontractorH provided always that:
27.1.1 the "ontractor@s application shall #e made as soon as it has #ecome1 or should
reasona#ly have #ecome1 apparent to him that the re5ular pro5ress o. the 'orks or o.
any part thereo. has #een or was likely to #e a..ected as a.oresaidH and
27.1.2 the "ontractor shall in support o. his application su#mit to the 3rchitect such
in.ormation as should reasona#ly ena#le the 3rchitect to .orm an opinion as a.oresaidH
and
27.1.3 the "ontractor shall su#mit to the 3rchitect or to the Euantity 0urveyor such
details o. such loss and/or e9pense as are reasona#ly necessary .or such ascertainment
as a.oresaid.
27.1.4 in the reasona#le opinion o. the 3rchitect the "ontractor has complied with the
provision o. clause 27.1.1 to 27.1.3 inclusive.
27.2 *he .ollowin5 are the matters re.erred to in clause 27.1:
P27.2.1.2 .ailure o. the 3rchitect to comply with clause 5.4.2P
27.2.7 3rchitect@s instructions issued
under clause 13.2 or clause 133.4.1 re?uirin5 a NariationP
under clause 13.3 in re5ard to the e9penditure o. provisional sumsPI
473. :oth sides@ "ounsel accept that the provision o. a timely written application with
supportin5 in.ormation and details is a condition precedent to '2"@s entitlement to =direct
loss and/or e9pense= under "lause 27. (owever1 in considerin5 "lause 271 one must #ear in
mind that most o. the matters which entitle the "ontractor to such loss and e9pense are the
=.ault= or at least the risk o. the &mployer1 such as variations or the late provision o.
in.ormation or instructions #y the 3rchitect. Fne there.ore needs to consider with some care
precisely what the words mean1 without construin5 them in any way a5ainst the "ontractor
as such. >t is clear .rom the a#ove wordin5 that the application may #e made when the
"ontractor either has incurred or is likely to incur the loss or e9pense. >t can there.ore #e
prospective )#e.ore the loss or e9pense has #een incurred+ or retrospective )a.ter it has #een
incurred+. *hus1 .or time related preliminary costs1 the "ontractor can wait until it is clear
that the loss or e9pense has #een incurredH thus1 i. the delay has not actually happened1 the
e9tended preliminary costs will )o.ten+ not have #een incurred and the "ontractor can
there.ore wait #e.ore servin5 its application until it has actually #een incurred. *he same
sort o. wordin5 is used a .ew lines later in relation to pro5ress havin5 #een or #ein5 likely to
#e materially a..ected #y the matters listed in "lause 27.2H there.ore the 3rchitect may not
have to ascertain the loss or e9pense until it has #een incurred. *his is o. some importance
when one comes to consider the loss o. head o..ice overhead and pro.it related to delay
#ecause that will 5enerally not #e incurred until the actual delay #eyond the ori5inal
contractual completion date #e5ins to accrue.
474. >t is also clear .rom the clause that there are essentially two conditions precedent
within it. *he .irst relates to the makin5 o. the timely application to the 3rchitect )"lauses
27.1.1 and 27.1.2+ and the second to the provision to the 3rchitect or the Euantity 0urveyor
o. details o. loss or e9pense to ena#le the ascertainment to #e made. *here has #een a
su#stantial de#ate as to what in.ormation must #e provided in relation to the .irst and second
conditions. >t is di..icult and undesira#le to lay down any 5eneral rule as to what in every
case needs to #e provided. >t is le5itimate to #ear in mind what knowled5e and in.ormation
the 3rchitect already has. Dor instance1 the 3rchitect )as in this case+ attended meetin5s
re5ularly and .re?uently throu5hout the project and was the recipient o. scores o.
applications .or e9tensions o. time .rom '2"H it mi5ht le5itimately #e thou5ht that the
3rchitect already had a very su#stantial amount o. in.ormation at its .in5ertips so that1
ar5ua#ly1 less in.ormation needed to #e provided #y the "ontractor in its application #ecause
all that is re?uired is that the 3rchitect must #e reasona#ly put into a position in which it can
.orm an opinion that =direct loss and/or e9pense has #een incurred or is likely to #e
incurredP#ecause the re5ular pro5ress o. the 'orksPhas #een materially a..ected= #y the
5iven events. *his is consistent with the decision o. 8r /ustice Ninelott in Lon)on Boro5/1
of Merton 3 Le%61 )16A5+ 32 :2- 7A at pa5e 67 and 6A. F. course1 "lause 27.1 e9pressly
says that the application under "lause 27.1 does not have to #e 5iven with a money
?uanti.ication1 #ecause the #racketed wordin5 su55ests only that the "ontractor =may 5ive
his ?uanti.ication=.
475. "onstruin5 "lause 27.1.3 in its conte9t1 an entitlement to various heads o. loss and
e9pense will not #e lost where .or some o. the loss details are not provided. Ftherwise1 one
can have the a#surd position that where B10 out o. a B1 million claim is not ade?uately
detailed #ut the rest o. the claim is1 the whole claim would .ail to satis.y the condition
precedent. *hat can not have #een intended. 35ain the condition precedent within "lause
27.1.3 only re?uires the "ontractor to su#mit details which =are reasona#ly necessary= .or
the ascertainment o. loss and e9pense. >t does not say how the details are to #e provided #ut
there is no reason to #elieve that an o..er to the 3rchitect or Euantity 0urveyor .or them to
inspect records at the "ontractor@s o..ices could not #e construed as su#mission o. details o.
loss and e9penseH this happened in this case as 8r 8c8orrow said credi#ly in evidence.
Fne must also #ear in mind that what is re?uired is =details= o. the loss and e9pense and that
does not necessarily include all the #ackup accountin5 in.ormation which mi5ht support
such detail. >t would have #een possi#le .or the clause to say that the "ontractor should
provide =details and all necessary supportin5 documentation= #ut that is not what the clause
says.
477. *here is no need to construe "lause 27.1.3 in a peculiarly strict way or in a way
which is in some way penal as a5ainst the "ontractor1 particularly #earin5 in mind that all
the "lause 27.2 5rounds which 5ive rise to the loss and e9pense entitlements are the .ault
and risk o. the &mployer. 8r ;ontin su55ests in ;ara5raph 7.2 o. his .irst report that he
would e9pect the "ontractor to include in its written applications under "lause 27.1 a lon5
list o. items:
Ja+ 0ta.. allocations and actual costs.
#+ 2a#our allocations and actual costs.
c+ 0ca..old1 utilities1 e9pense and other materials/sundry e9penses scheduled with
copy invoices and e9planations .or the items in ?uestion.
d+ 0u#contract accounts havin5 already discounted1 i. appropriate1 the matters which
were not the &mployer@s responsi#ility.
e+ 0uch other data as is necessary to ena#le the actual costs incurred to #e vouched as
correct and relevant to the matter)s+ the su#ject o. the notice.=
477. > consider that this approach is not a standard one that would apply in every case. 8r
;ontin@s approach is almost akin to sayin5 #oth that every conceiva#le detail and #ack up
documentation which may or may not #e needed must #e provided and all evidence re?uired
to prove the claim as correct needs to #e deployed. "lause 27.1.3 talks a#out =such detailsP
as are reasona#ly necessary .or such ascertainment=. *his is all ?uali.ied #y what is
=reasona#ly necessary=. *hus1 a very common head o. loss and e9pense )as here+ is delay
related preliminary costs1 such as e9tended mana5ement1 site supervision and site .acilities
provided #y the "ontractor. >. delay has occurred #y reason o. one o. the "lause 27.2
matters )say1 variations or late instructions+1 it will o.ten #e o#vious to every#ody includin5
the Euantity 0urveyor and 3rchitect who visit the site re5ularly that such preliminary heads
o. cost are #ein5 incurredH e9amples mi5ht #e the site huts or the senior supervisors workin5
on site. >n terms o. the costs o. such items1 there could #e .ul.ilment o. the condition
precedent i. the details o. the e9pense relatin5 to such preliminaries were de.ined #y
re.erence to the prices in the contract #etween the parties .or such items. >t is le5itimate to
#ear in mind that the 3rchitect and the Euantity surveyor are not stran5ers to the project in
considerin5 what needs to #e provided to themH this is consistent with the jud5ement o. 8r
/ustice Ninelott in the Merton case )see pa5es 67,A+. >n the current case1 there was a very
detailed #reakdown o. the preliminary activities includin5 site sta..in51 temporary
accommodation1 telephones1 site la#our1 temporary services and various sundries with rates
or prices individually shown. >t would #e properly ar5ua#le that loss and e9pense o. the
preliminaries could #e valued #y re.erence to the contract rates or prices .or such
preliminaries on the #asis that those rates or prices represent the loss )i. not the e9pense+ to
the "ontractor o. havin5 such sta.. .or or other preliminary activities on the project .or
lon5er than anticipated.
47A. "lause 27.1 talks o. the e9ercise o. ascertainment o. loss and e9pense incurred or to
#e incurred. *he word =ascertain= means to determine or discover de.initely or1 more
archaically1 with certainty. >t is ar5ued #y 48'@s "ounsel that the 3rchitect or the Euantity
0urveyor can not ascertain unless a massive amount o. detail and supportin5 documentation
is provided. *his is almost akin to sayin5 that the "ontractor must produce all conceiva#le
material evidence such as is necessary to prove its claim #eyond reasona#le dou#t. >n my
jud5ement1 it is necessary to construe the words in a sensi#le and commercial way that
would resonate with commercial parties in the real world. *he 3rchitect or the Euantity
0urveyor must #e put in the position in which they can #e satis.ied that all or some o. the
loss and e9pense claimed is likely to #e or has #een incurred. *hey do not have to #e
=certain=. Fne has to #ear in mind that the ultimate dispute resolution tri#unal will decide
any liti5ation or ar#itration on a #alance o. pro#a#ilities and at that sta5e that tri#unal will
)only+ have to #e satis.ied that the "ontractor pro#a#ly incurred loss or e9pense as a result
o. one or more o. the events listed in "lause 27.2. :earin5 in mind that one o. the e9ercises
which the 3rchitect or Euantity 0urveyor may do is allow loss and e9pense1 which has not
yet #een incurred #ut which is merely Jlikely to #e incurredIH in the a#sence o. crystal #all
5aKin51 they cannot #e certain precisely what will happen in the .uture #ut they need only to
#e satis.ied that the loss or e9pense will pro#a#ly #e incurred.
476. *here are scores o. applications in writin5 made #y '2" to :243 under "lause 25
.or e9tensions o. time and under "lause 27 .or loss and e9pense. *here is on analysis no
point taken or maintained that these were not made within time. *he real issue is more
whether or not an appropriate level o. detail was provided within or in connection with the
applications. >t is undou#tedly the case that the Euantity 0urveyors and the 3rchitect did
include within interim certi.icates su#stantial sums .or loss and e9pense and it is there.ore a
.air in.erence that they considered that they had su..icient detail at least to certi.y what they
did. &9amples o. what '2" did #y way o. particularisation are in a series o. letters dated 24
!ovem#er 20051 one each relatin5 to the di..erent e9tension o. time claims su#mitted. *he
wordin5 o. the letter is usually similar:
JPwe enclose our revised assessment o. 2oss < &9pense in respect o. &9tension o.
*ime claims &o* 2/4.
3 detailed evaluation o. 'alter 2illy@s direct costs associated with this event has
#een carried out totallin5 B1341A05.A5 $total includes ;lots 31 : < " and provisional
sums totallin5 B111000.00 in respect o. potential su#contract the claim is the delay
and disruption arisin5 out o. this event1 #ut e9cludes overheads and pro.it% and this is
attached .or your consideration.
'e trust the a#ove is satis.actory and look .orward to your response.=

'hat is attached is a listin5 o. all the preliminary activities )site sta..in51 temporary
accommodation and so on+ as set out in the ori5inal tender with a num#er o. weeks1
percenta5e o. resource #ein5 applied and rate1 a5ainst which in a #o9 headed =2oss <
&9pense 4ue to 4elay= there is then set out a5ainst the individual activity how many weeks
)and .rom and to which particular week+ that particular resource is said to have #een
deployed multiplied #y the tender preliminary rate. 3t the end there are added the
provisional .i5ures in relation to particular su#contractors .or potential claims. 2ater claims
had a J"ommentsI column which provided additional e9planations. *hese were revised and
supplemented on a monthly #asis.
470. *his provides1 particularly to an architect or ?uantity surveyor who is well
ac?uainted with what is happenin5 on the project1 all the detail that is reasona#ly called .or
#y "lause 27.1. >t is linkin5 the loss and e9pense claim to the particular .actors relied upon
to a speci.ic e9tension o. time claimH it is identi.yin5 each head o. loss or e9pense1 spellin5
out the precise period .or which it is claimed and the precise cost or loss which is put
.orward. >t is not necessary that the details provided are actually correct #ut they need to #e
what the "ontractor is puttin5 .orward. *he .act that what is put .orward is not accepted #y
the Euantity 0urveyor or 3rchitect or even that it does not provide all the details a#solutely
necessary to prove #eyond dou#t every penny@s or pound@s worth o. loss or e9pense does not
mean that the condition precedent is not achieved at least in respect o. what is reasona#ly
capa#le o. #ein5 esta#lished.
471. *he monthly claims .or loss and/or e9pense were included in '2"@s applications .or
payment. *hese applications #y arran5ement were made in relation to all three Gnits1 31 :1
and ". 'hilst the value o. the works is varied #etween the three units1 many o. the heads o.
claim were allocated on a one third #asis in relation to each Gnit. *hus1 #y way o. e9ample
in the valuation .or 31 3u5ust 2007 the claims .or =;rolon5ation=1 =2oss and &9pense
includin5 0" prolon5ation= and =0undry 2oss and e9penseI+ were one third each o. the total
cost or loss as claimed. *his was #ecause it was accepted #y all concerned at this sta5e that
this apportionment was sensi#le and the #est which could #e achieved.
472. :y !ovem#er 2007 )Naluation 2A+1 some B4A01000 had #een certi.ied .or delay
related loss and e9pense1 al#eit that #y the end o. the year over B1.4 million was #ein5
claimed in relation to Gnit ". :y the end o. 8arch 2007 )Naluation 32+1 just under B7001000
had #een certi.ied .or loss and e9pense. :y late 0eptem#er 2007 )Naluation 3A+1 some
B7501000 had #een certi.ied. :y the end o. 20071 '2" was claimin5 over B2 million .or
loss and e9pense )includin5 su#,contractor loss+. :y 0eptem#er 200A1 a#out B7201000 .or
loss and e9pense had #een certi.ied.
473. *he sums claimed .or preliminaries .all into two cate5ories1 the e9tended time or
delay related preliminaries and what are called the thickenin5 preliminaries1 which #y
re.erence to the pleaded case are:
)a+ >tem 1: thickenin5 costs up to 8arch 2007 )the ori5inal contract period+H B62142A
)total o. B11A152A less the B271100 allowed .or #y 48'+.

)#+ >tem 2: preliminaries costs up to 17 De#ruary 2007 )the point to which 48'/ 8r
8ackay do not dispute that '2" is entitled to an e9tension o. time+H B61207 )total o.
B3041675 less B2651756 allowed .or #y 48'+.

)c+ >tem 3 T thickenin5 up to 17 De#ruary 2007H B1571315 )B24311A3 less BA51A7A
allowed .or #y C<*+.

)d+ >tem 4 T prolon5ation up to 7 De#ruary 200A )the point to which on '2"@s
pleaded case ;ractical "ompletion was achieved+H B2671047.

)e+ >tem 5 T thickenin5 up to 7 De#ruary 200AH B2671610.

).+ >tem 7: prolon5ation #eyond 7 De#ruary 200AH B17413A3.

)5+ >tem 7: cleanin5H B71750.

J*hickenin5I in this conte9t means the provision o. additional resources over and a#ove the
anticipated preliminaries said to have #een necessary to deal with or overcome the
conse?uences o. variations and late instructions and in.ormation.
474. *hese claims are said to comprise a J5lo#alI claim and1 48' ar5ues1 are there.ore
#arred #y authority in the circumstances o. the case. >t is there.ore necessary to review the
law which has 5rown up over the last 50 years on the topic. >n Cro.20 3 #ort$%n) UDC
)1677+ 5 :2- 1211 8r /ustice 4onaldson )as he then was+ dealt with a num#er o. issues
arisin5 out o. a contract incorporatin5 the >"& "onditions1 on the old case stated procedure
which used to pertain in ar#itration. *he ar#itrator in that case1 amon5st other thin5s1 had
awarded delay and disruption related compensation on a lump,sum #asisH the "ouncil
ar5ued that the ar#itrator could not do this #ut should .ind amounts due under each o. the
individual heads o. claim upon which the "ontractor relied in support o. its overall claim .or
delay and disruption. *he jud5e upheld the ar#itrator@s award and approach at pa5es 135,7:
J*he claimants disavow any intention o. .oundin5 a claim under clause 52)4+ or
upon clause 77 o. the contract. *hey say that where you have a series o. events
which can #e cate5orised as denial o. possession o. part o. the site1 suspension o.
work1 and variations1 the result is1 or may #e1 that the contractor incurs the e9tra
costs #y way o. overhead e9penses and loss o. productivityH these e9tra costs are all
recovera#le directly under clause 40 or clause 42 or indirectly under clauses 51 and
52. > say Oindirectly #ecause any revised rate or price and the scheduled day work
rates must include a lar5e cost element even i. they 5o .urther than this and also
cover pro.it. 0ince1 however1 the e9tent o. the e9tra cost incurred depends upon an
e9tremely comple9 interaction #etween the conse?uences o. the various denials1
suspensions and variations1 it may well #e di..icult or even impossi#le to make an
accurate apportionment o. the total e9tra cost #etween the several causative events.
3n arti.icial appointment could o. course have #een madeH and why1 they ask1 should
the ar#itrator make such an apportionment which has no #asis in realityW

> can see no answer to this ?uestion. &9tra costs are a .actor common to all these
clauses1 and so lon5 as the ar#itrator does not make any award which contains a
pro.it element1 this #ein5 permissi#le under clauses 51 and 52 #ut not under clauses
41 and 421 and provided he ensures that there is no duplication1 > can see no reason
why he should not reco5nise the realities o. the situation and make individual awards
in respect o. those parts o. individual items o. the claim which can #e dealt with in
isolation and a supplementary award in respect o. the remainder o. those claims as a
composite whole. *his is what the ar#itrator has doneP(e has .urther ensured that
there is no duplicationPand there is no pro.it element in this particular awardPI
475. >n Lon)on Boro5/1 of Merton @3( St%n$e0 H5/1 Le%61 )16A5+ 32 :2- 7A1 8r
/ustice Ninelott dealt with an interim award .rom an ar#itrator in relation to disputes under a
/"* contract which was a .orerunner to that used #y the parties in this case1 where "lause 24
was compara#le to the current "lause 27. Fne o. the issues .or consideration was whether
contractual terms a#out the recovery o. direct loss/e9pense permitted the "ontractor to
recover the same in respect o. any alle5ed event when it is not possi#le .or it to state in
respect o. that alle5ed event the amount o. loss/e9pense attri#uta#le thereto. (e re.erred to
the Cro.20 case. (e .ound 8r /ustice 4onaldson@s reasonin5 Jcompellin5= and went on at
pa5e 102 to say this:
J*he position in the instant case is1 > think as .ollows. >. application is made )under
clause 11)7+ or 24)1+ or under #oth su#,clauses+ .or reim#ursement o. direct loss or
e9pense attri#uta#le to more than one head o. claim and at the time when the loss or
e9pense comes to #e ascertained it is impractica#le to disentan5le or disinte5rate the
part directly attri#uta#le to each head o. claim1 then1 provided o. course that the
contractor has not unreasona#ly delayed in makin5 the claim and so has himsel.
created the di..iculty the architect must ascertain the 5lo#al loss directly attri#uta#le
to the two causes1 disre5ardin51 as in Crosby 1 any loss or e9pense which would have
#een recovera#le i. the claim had #een made under one head in isolation and which
would not have #een recovera#le under the other head taken in isolation. *o this
e9tent the law supplements the contractual machinery which no lon5er works in the
way in which it was intended to work so as to ensure that the contractor is not
un.airly deprived o. the #ene.it which the party is clearly intended he should have.

P> think > should nonetheless say that it is implicit in the reasonin5 o. 4onaldson /1
.irst1 that a rolled up award can only #e made in the case where the loss or e9pense
attri#uta#le to each head o. claim cannot in reality #e separated and secondly as a
rolled up award can only #e made where apart .rom the practical impossi#ility the
conditions which have to #e satis.ied #ut #e.ore an award can #e made have #een
satis.ied in relation to each head o. claim.=
477. !1%rf #ro<ert&e. Lt) @3( Er&6 C5'&ne A..o6&%te. )1661+ 52 :2- 1 was a ;rivy
"ouncil appeal .rom (on5 Mon5 ultimately on whether a somewhat voluminous statement
o. claim should #e struck out as disclosin5 no cause o. action. 2eave to appeal havin5 #een
5iven #ecause it was initially thou5ht that a point o. 5eneral si5ni.icance had #een raised1
their 2ordships ultimately thou5ht that there was no ?uestion o. any 5eneral importance.
4evelopers sued the architect in relation to a development1 with the statement o. claim
runnin5 to over 400 pa5es with schedules. *he delay o. just over two years in completion
)#roken down in the pleadin5 into si9 separate periods+ was identi.ied alon5 with 15
separate #reaches on the part o. the architect which was said to have caused the delay. *he
loss claimed was the loss o. rent1 some (M\166m. *he ;rivy "ouncil was satis.ied that the
pleadin5 was insu..icientH the (on5 Mon5 "ourt o. 3ppeal had decided that the action was
one in which the real cause o. action rested upon the esta#lishment o. an essential link
#etween the action or inaction alle5ed on the part o. the architect and the dama5e which was
claimed #y way o. relie.1 the key pleadin5 issue then #ein5 whether all the material .acts had
#een pleaded. *he ;rivy "ouncil .elt una#le to .ollow the "ourt o. 3ppeal@s view that the
case should #e struck out on the 5rounds that no reasona#le cause o. action had #een
pleaded:
J"ertainly there are portions o. the pleadin5 which ou5ht ?uite properly to #e struck
out as .ailin5 to esta#lish any relationship at all #etween what is alle5ed and the
dama5es claim which could not #e cured even #y the delivery o. the particulars
claimedP:ut their 2ordships do not .eel a#le to say that the statement o. claim
discloses no reasona#le cause o. actionP>t has #een o#served on many occasions
that the power to strike out a pleadin5 as disclosin5 no reasona#le cause o. action is
one that should #e o#served .or =plain and o#viousI cases. JO-easona#le cause o.
actionI means a cause o. action with some chance o. success when )as re?uired #y
rule 162 )+ only the alle5ations in the pleadin5 are considered= ) per 2ord ;earson in
Drummond Jackson v British Medical Association 1670 1 3ll &- 1064 at pa5e
1101+.

(owever1 the ;rivy "ouncil upheld the "ourt o. 3ppeal@s jud5ement on the #asis that the
pleadin5 was =hopelessly em#arrassin5=. *he Cro.20 and Merton cases were re.erred to in
ar5ument. 2ord Fliver who 5ave the jud5ement said this at ;a5e 20,21:

J*hose cases esta#lish no more than this1 that in cases where the .ull e9tent o. e9tra
costs incurred throu5h delay depends upon a comple9 interaction #etween the
conse?uences o. various events1 so that it may #e di..icult to make an accurate
apportionment o. the total e9tra costs1 it may #e proper .or an ar#itrator to make
individual .inancial awards in respect o. claim which can conveniently #e dealt with
in isolation and a supplementary award in respect o. the .inancial conse?uences o.
the remainder as a composite whole. *his has1 however1 no #earin5 upon the
o#li5ation o. a plainti.. to plead his case with such particularity as is su..icient to
alert the opposite party to the case which is 5oin5 to #e made a5ainst him at the trialI
477. *he !1%rf case was there.ore concerned with a pleadin5 issue and1 as such1
primarily the correlation #etween the events or #reaches relied upon as causin5 the delay.
:yrne / in the 0upreme "ourt o. Nictoria addressed the issue o. 5lo#al or total cost claims in
Jo1n Ho$$%n) Con.tr56t&on " En/&neer&n/ #t0 Lt) @3( K3%erner RJ Brown #t0 Lt)
)1667+ A2 :2- A1. *his was a case also dealin5 with the ?uality o. a pleadin5 which
involved a J5lo#al claim $which% is in .act a total cost claim= )pa5e A5&+. *he jud5e said this
havin5 reviewed a num#er o. authorities1 includin5 &n5lish ones1 at pa5e 60>:
J>n my opinion1 the court should approach a total cost claim with a 5reat deal o.
caution1 even distrust. > would not1 however1 elevate the suspicion to the level o.
concludin5 that such a claim should #e treated as prima facie #ad: British Airways
Pension rustees !td v "ir #obert McAlpine $ "ons !td )1664+ 72 :2 are 27 at pa5e
341 per 0aville /1 :eldam !eill 2// concurrin5. "ompare (udson@s :uildin5 and
&n5ineerin5 "ontracts )11th edn1 1665+1 para5raph A,204. !evertheless1 the point o.
lo5ical weakness inherent in such claims1 the causal ne9us #etween the wron5.ul acts
or omissions o. the de.endant and the loss o. the plainti..1 must #e addressed. > put to
one side and strai5ht.orward case where each aspect o. the ne9us is apparent .rom
the nature o. the #reach and loss as alle5ed. >n such a case the o#jectives o. the
pleadin5 may #e achieved #y a short statement o. the .acts 5ivin5 rise to the causal
ne9us. >. it is necessary .or the 5iven case that it is to #e supported #y particulars1
this should #e done. :ut1 in other cases1 each aspect o. the ne9us must #e .ully set
out in the pleadin5. 8oreover1 the court should #e assiduous in pressin5 the plainti..
to set out this ne9us with su..icient particularity to ena#le the de.endant to know
e9actly what is the case it is re?uired to meet and to ena#le the de.endant to direct its
discovery and its attention 5enerally to the case. 3nd it should not #e overlooked that
an important means o. achievin5 the result that1 once it starts1 the trial should #e
conducted without undue prejudice1 em#arrassment and delay1 is #y ensurin5 that1
when it #e5ins1 the issues #etween the parties includin5 this ne9us is de.ined with
su..icient particularity to ena#le the trial jud5e to address the issues1 to rule on
relevance and 5enerally to contain the parties to those issuesP3nd i.1 in such a case1
the plainti.. .ails to demonstrate this causal ne9us in su..icient detail #ecause it is
una#le or unwillin5 to do so1 then this may provide the occasion .or the court to
relieve the de.endant o. the unreasona#le #urden which the plainti.. would impose
on it: %harf PI
47A. 3nother case involvin5 pleadin5 issues and a =5lo#al= claim was the decision in this
court in 16671 Bern1%r):. R5/20 L%n).6%<e. Lt) 3 Sto67$e0 #%r7 Con.ort&5' Lt) A2
:2- 36. *he plainti.. contractor@s claim included .or prolon5ation costs and dama5es. ((/
(umphrey 2loyd E" stated:
J3 5lo#al claim can take a variety o. .orms. 'here it descri#ed a pleaded claim it
has pejorative overtones as it is usually intended to descri#e a claim where the causal
connection #etween the matters complained o. and their conse?uences1 whether in
terms o. time or money1 are not .ully spelt out1 #ut1 implicitly1 could and should #e
spelled out. >t is to #e contrasted with the use o. the term where an ar#itrator has
made an award o. a sum which the ar#itrator cannot apportion #etween the various
events. *his may #e permissi#le #ut as 2ord Fliver made clear in %harf Pthere is a
clear distinction #etween that situation and the pleadin5 o. claimP
>n other words a 5lo#al claim in the sense used in ar5ument is the antithesis o. the
claim where the causal ne9us #etween the wron5.ul act or omission o. the de.endant
and the loss o. the plainti.. has #een clearly and intelli5ently pleaded. (owever that
ne9us need not always #e e9pressed since it may #e in.erredPI )pa5es 73,4+
476. 2ord 8ac.adyen in the 0cottish case1 Jo1n Do0$e Con.tr56t&on Lt) 3 L%&n/
M%n%/e'ent *S6ot$%n), Lt) $20012% :2- 363 also considered 5lo#al claims .rom a
pleadin5 perspective. (e .irst identi.ied what he was not dealin5 with at ;ara5raph 33:
J *his case is not concerned with whether a 5lo#al claim .or loss and e9pense may
relevantly #e advanced #y a contractor under a construction contract. *he de#ate
proceeded on the #asis that it was common 5round that such a claim could in
principle relevantly #e made ) !ondon Borou&h of Merton v "tanley 'u&h !each !td
H %harf Properties !td v (ric Cumine Associates )1661+ 52 :2- AH 'olland v
)vaerner +. !or is it in issue in this case at this sta5e whether the circumstances are
such as to permit a claim to #e made in that .orm. *he pursuers aver )at pa5e 32 o.
the "losed -ecord+:
=4espite the ;ursuersQ #est e..orts1 it is not possi#le to identi.y causal links
#etween each such cause o. delay and disruption1 and the cost conse?uences
thereo.=.
*hat averment havin5 #een made1 the de.enders accept that the pursuers are in
principle entitled to advance a 5lo#al claim. > pre.er to reserve my opinion on
whether such an averment is essential to the relevancy o. a 5lo#al claim1 on what the
pursuers need do to esta#lish that averment1 and on what the conse?uences would #e
i. they .ailed to do so.I
4A0. (e went on:
J 35. Frdinarily1 in order to make a relevant claim .or contractual loss and e9pense
under a construction contract )or a common law claim .or dama5es+ the pursuer must
aver )1+ the occurrence o. an event .or which the de.ender #ears le5al responsi#ility1
)2+ that he has su..ered loss or incurred e9pense1 and )3+ that the loss or e9pense was
caused #y the event. >n some circumstances1 relatively commonly in the conte9t o.
construction contracts1 a whole series o. events occur which individually would .orm
the #asis o. a claim .or loss and e9pense. *hese events may inter,react with each
other in very comple9 ways1 so that it #ecomes very di..icult1 i. not impossi#le1 to
identi.y what loss and e9pense each event has caused. *he emer5ence o. such a
di..iculty does not1 however1 a#solve the pursuer .rom the need to aver and prove the
causal connections #etween the events and the loss and e9pense. (owever1 i. all the
events are events .or which the de.ender is le5ally responsi#le1 it is unnecessary to
insist on proo. o. which loss has #een caused #y each event. >n such circumstances1
it will su..ice .or the pursuer to aver and prove that he has su..ered a 5lo#al loss to
the causation o. which each o. the events .or which the de.enders is responsi#le has
contri#uted. *hus .ar1 provided the pursuer is a#le to 5ive ade?uate speci.ication o.
the events1 o. the #asis o. the de.enderQs responsi#ility .or each o. them1 o. the .act o.
the de.enderQs involvement in causin5 his 5lo#al loss1 and o. the method o.
computation o. that loss1 there is no di..iculty in principle in permittin5 a claim to #e
advanced in that way.
37. *he lo5ic o. a 5lo#al claim demands1 however1 that all the events which
contri#ute to causin5 the 5lo#al loss #e events .or which the de.ender is lia#le. >. the
causal events include events .or which the de.ender #ears no lia#ility1 the e..ect o.
upholdin5 the 5lo#al claim is to impose on the de.ender a lia#ility which1 in part1 is
not le5ally his. *hat is unjusti.ied. 3 5lo#al claim1 as such1 must there.ore .ail i. any
material contri#ution to the causation o. the 5lo#al loss is made #y a .actor or .actors
.or which the de.ender #ears no le5al lia#ility. *hat point has #een noted in )eatin&
at para5raph 17,1A1 in 'udson at para5raph A,2101 more clearly in (mden at
para5raph $231%1 in the 3merican cases1 and most clearly #y :yrne / in 'olland v
)vaerner at A5( and A74 )see para5raph $25% a#ove+. *he point has on occasions
#een e9pressed in terms o. a re?uirement that the pursuer should not himsel. have
#een responsi#le .or any .actor contri#utin5 materially to the 5lo#al loss1 #ut it is in
my view clearly more accurate to say that there must #e no material causative .actor
.or which the de.ender is not lia#le.
37. 3dvancin5 a claim .or loss and e9pense in 5lo#al .orm is there.ore a risky
enterprise. Dailure to prove that a particular event .or which the de.ender was lia#le
played a part in causin5 the 5lo#al loss will not have any adverse e..ect on the claim1
provided the remainin5 events .or which the de.ender was lia#le are proved to have
caused the 5lo#al loss. Fn the other hand1 proo. that an event played a material part
in causin5 the 5lo#al loss1 com#ined with .ailure to prove that that event was one .or
which the de.ender was responsi#le1 will undermine the lo5ic o. the 5lo#al claim.
8oreover1 the de.ender may set out to prove that1 in addition to the .actors .or which
he is lia#le .ounded on #y the pursuer1 a material contri#ution to the causation o. the
5lo#al loss has #een made #y another .actor or other .actors .or which he has no
lia#ility. >. he succeeds in provin5 that1 a5ain the 5lo#al claim will #e undermined.
3A. *he ri5our o. that analysis is in my view miti5ated #y two considerations. *he
.irst o. these is that while1 in the circumstances outlined1 the 5lo#al claim as such
will .ail1 it does not .ollow that no claim will succeed. *he .act that a pursuer has
#een driven )or chosen+ to advance a 5lo#al claim #ecause o. the di..iculty o.
relatin5 each causative event to an individual sum o. loss or e9pense does not mean
that a.ter evidence has #een led it will remain impossi#le to attri#ute individual sums
o. loss or e9pense to individual causative events. *he point is illustrated in certain o.
the 3merican cases. *he 5lo#al claim may .ail1 #ut there may #e in the evidence a
su..icient #asis to .ind causal connections #etween individual losses and individual
events1 or to make a rational apportionment o. part o. the 5lo#al loss to the causative
events .or which the de.ender has #een held responsi#le.
40. *he second .actor miti5atin5 the ri5our o. the lo5ic o. 5lo#al claims is that
causation must #e treated as a common sense matter ) 'olland v )vaerner 1 per
:yrne / at A4>+. *hat is particularly important1 in my view1 where averments are
made attri#utin51 .or e9ample1 the same period o. delay to more than one cause.
4A1. *he "ourt o. 3ppeal in #etro'e6 In6 39 #etro$eo Br%.&$er&o SA #etro2r%. $2007%
&'"3 "iv 1371 dealt with an appeal involvin5 up5radin5 works on an oil production
plat.orm which contained these clauses:
J12.2 >n the case o. any .urther alterations or chan5es instructed #y :rasoil pursuant
to "lause 10 hereo.1 :rasoil a5rees:
)i+ to pay to ;etromec the reasona#le costs )i. any+ incurred #y ;etromec and its
contractors in pro5ressin5 the en5ineerin5 in accordance with such 0peci.ication as
was a5reed #e.ore the alteration or chan5eH
)ii+ to pay to ;etromec an amount e?ual to the reasona#le e9tra costs )i. any+ to
;etromec o. Gp5radin5 the Nessel in accordance with the 0peci.ication as altered or
amendedH and
)iii+ to e9tend the date #y which ;etromec must complete the Gp5rade.
12.3 *he additional costs re.erred to in "lauses 12.1 and 12.2 a#ove will #ecome due
and paya#le on the production #y ;etromec o. evidence o. e9penditure satis.actory
to :rasoil and :rasoil #ein5 satis.ied that such costs were reasona#le and properly
incurredPI
4A2. ;etromec ar5ued that these clauses entitled them to payment o. the di..erence in cost
#etween that which they mi5ht reasona#ly have incurred in up5radin5 the vessel in
accordance with the ori5inal and a later amended speci.ication as .urther amended .rom time
to time1 that is the costs o. up5radin5 works which they in .act carried out. 8ay 2/ said:
J 27. >n summary1 there.ore1 the jud5e held in para5raph 4A o. his jud5ment1 that1 on
the proper construction o. the 0upervision 35reement1 the sum due to ;etromec
under clauses 12.1 and 12.2 cannot #e ascertained #y calculatin5 the di..erence in the
manner which ;etromec proposed. ;etromec must speci.y the instructions1 the work
re?uired to comply with those instructions )or with the 3mended 0peci.ication under
clause 11+1 and the cost attri#uta#le to that work. *he chan5es and causal ne9us must
#e pleaded. ;etromec can contend that the work done and the cost is reasona#le. :y
one means or another1 it must plead with su..icient particularity the work done and
its cost #y re.erence to the 3mended 0peci.ication or the instructions 5iven. *he
jud5e1 however1 said1 in para5raph 46 o. his jud5ment1 that it was not necessary to
ascertain separately sums due under clauses 12.1 and 12.2. 3ll that was necessary
was to esta#lish the total o. the additional costs re.erred to in clauses 12.1 and 12.2.
'hat mattered was the total reasona#le e9tra cost paya#le in conse?uence o.
complyin5 with ;etro#rasQ instructions under clause 101 as re.lected in clauses 11.1
and 12.1 or 12.2P

37. "lause 12.2 concerns .urther alterations or chan5es instructed #y ;etro#ras1 that
is chan5es to the "lause 11 -oncador 0peci.ication. "lause 12.2)ii+ entitles ;etromec
to the reasona#le e9tra cost resultin5 .rom these chan5es1 that is in concept the cost
caused #y the chan5es. *hat in theory mi5ht re?uire a comparison #etween the work
content and cost o. the "lause 11 -oncador 0peci.ication )or part o. it+ and the work
content o. the instructed chan5es. "onventional particulars o. this would re?uire
;etromec to identi.y the chan5e order instructions1 and to 5ive su..icient particulars
o. the work content and reasona#le cost o. each. *he jud5e in e..ect so decided in
para5raph 4A o. his jud5ment. 3s a matter o. the a#stract construction o. clause 12.2
alone coupled with an orthodo9 approach to pleadin5 and case mana5ement1 > think
he was correct. :ut there are two .urther considerations. Dirst1 ;etromec are entitled
to assert as their case that the "lause 11 -oncador 0peci.ication was not a document
which de.ined work content and that the desi5n only emer5ed and #ecame #uilda#le
as it went alon5. 0econd1 ;etromecQs entitlement to =reasona#le e9tra cost= o.
up5radin5 in clause 12.1 is the same measure o. cost as the =reasona#le e9tra costs=
o. up5radin5 in clause 12.2)ii+. *his means T and 8r (ancock was inclined to accept
T that the sum o. the reasona#le e9tra costs under clauses 12.1 and 12.2)ii+ taken
separately ou5ht to #e the same as ;etromecQs reasona#le e9tra costs o. up5radin5 the
vessel in accordance with the -oncador 0peci.ication as eventually instructed1
includin5 the .urther alterations and chan5es to #e paid .or under clause 12.2. Dor
these reasons1 > do not consider that the court would strike out a .ormulation o.
;etromecQs claim which sou5ht to deduct the costs that ;etromec mi5ht reasona#ly
have incurred in achievin5 the Fri5inal 0outh 8arlim 0peci.ication )properly
particularised+ .rom the reasona#le costs )properly particularised+ o. achievin5 the
eventually instructed -oncador 0peci.ication. *his is no dou#t what the jud5e had in
mind when he held in para5raph 46 o. his jud5ment that it was not necessary .or
there to #e a separate ascertainment o. the sums due under clause 12.1 and 12.2.
*here does not there.ore have to #e a pointless separate costin5 o. the works
notionally re?uired to achieve the "lause 11 -oncador 0peci.ication1 which was
never e9ecuted in that .orm1 even i. that were possi#le. *hat does not1 however1 let
;etromec o.. the hook o. havin5 to 5ive proper particulars.
4A3. *he #etro'e6 case is heavily relied upon #y 48'@s "ounsel. (owever1 it assists
little as none o. the 5lo#al cost cases .eature1 let alone are mentioned1 in the jud5ements and
it seems to have involved speci.ic contract interpretation issues.
4A4. Fne needs to #e care.ul in usin5 the e9pressions =5lo#al= or =total= cost claims.
*hese are not terms o. art or statutorily de.ined terms. 0ome o. the cases1 such as !1%rf 1
were concerned with linkin5 actual delay and the alle5ed causes o. delay. 0imply #ecause a
contractor claims all the costs on a construction project which it has not yet #een paid does
not necessarily mean that the claim is a 5lo#al or total cost claim1 althou5h it may #e. 'hat
is commonly re.erred to as a 5lo#al claim is a contractor@s claim which identi.ies numerous
potential or actual causes o. delay and/or disruption1 a total cost on the jo#1 a net payment
.rom the employer and a claim .or the #alance #etween costs and payment which is
attri#uted without more and #y in.erence to the causes o. delay and disruption relied on.
4A5. 3lthou5h > will return to this later1 > remain wholly unconvinced that on any proper
analysis '2"@s loss and e9pense claim .alls readily into a cate5orisation o. #ein5 a 5lo#al
or total cost claim. *here has1 properly1 #een no or no maintained complaint that '2"@s
.inal pleadin5s did not su..iciently identi.y a comprehensi#le case in relation to delay.
'2"@s case .or e9tended preliminaries and pro.it and overhead is related solely to the
periods o. delay .or which it asserted that it was entitled to e9tensions o. time. *hus1 it
asserted that it was delayed #y X weeks .or .actors )variations and late
instructions/in.ormation+ .or which it was entitled not only to an e9tension o. time under
"lause 25 #ut also to loss and/or e9pense under "lause 27. *hose preliminaries costs are set
out in the pleadin5s1 and1 mostly1 comprise the cost to it o. en5a5in5 sta.. over all or part o.
that e9tended period. 3s a matter o. evidence1 it adduces evidence o. actual cost in relation
to each and every mem#er o. sta.. so deployed durin5 that e9tended period. >n relation to the
=thickenin5= o. resources1 it adduces evidence which seeks to e9plain what resources it
provided1 why it was additional to what had ori5inally #een priced #y it and why it was
related to the events relied upon as entitlin5 it to loss or e9pense and it adduces evidence o.
what the additional cost o. those resources was. *he case on e9tended overheads and pro.it
is simply #ased on there #ein5 due e9tensions also on "lause 27 5rounds and on evidence to
the e..ect that the preliminary resources could have #een applied pro.ita#ly on other projects
durin5 the period o. e9tension. *he su#,contractor claims are lar5ely #ased on the e9tension
delay and to the sums actually paid or1 i. not yet paid1 due to the relevant su#,contractor.
4A7. 4rawin5 to5ether all the relevant threads to5ether1 it can properly #e concluded as
.ollows in relation to =5lo#al= or =total= cost claims:
)a+ Gltimately1 claims #y contractors .or delay or disruption related loss and e9pense
must #e proved as a matter o. .act. *hus1 the "ontractor has to demonstrate on a
#alance o. pro#a#ilities that1 .irst1 events occurred which entitle it to loss and
e9pense1 secondly1 that those events caused delay and/or disruption and thirdly that
such delay or disruption caused it to incur loss and/or e9pense )or loss and dama5e
as the case may #e+. > do not accept that1 as a matter o. principle1 it has to #e shown
#y a claimant contractor that it is impossi#le to plead and prove cause and e..ect in
the normal way or that such impossi#ility is not the .ault o. the party seekin5 to
advance the 5lo#al claim. Fne needs to see o. course what the contractual clause
relied upon says to see i. there are contractual restrictions on 5lo#al cost or loss
claims. 3#sent and su#ject to such restrictions1 the claimant contractor simply has to
prove its case on a #alance o. pro#a#ilities.

)#+ "lause 27 in this case lays down conditions precedent which1 i. not complied
with1 will #ar to that e9tent claims under that clause. >. and to the e9tent that those
conditions are satis.ied1 there is nothin5 in "lause 27 which states that the direct loss
and/or e9pense cannot #e ascertained #y appropriate assessments.

)c+ >t is open to contractors to prove these three elements with whatever evidence
will satis.y the tri#unal and the re?uisite standard o. proo.. *here is no set way .or
contractors to prove these three elements. Dor instance1 such a claim may #e
supported or even esta#lished #y admission evidence or #y detailed .actual evidence
which precisely links reim#ursa#le events with individual days or weeks o. delay or
with individual instances o. disruption and which then demonstrates with precision
to the nearest penny what that delay or disruption actually cost.

)d+ *here is nothin5 in principle =wron5= with a =total= or =5lo#al= cost claim.
(owever1 there are added evidential di..iculties )in many #ut not necessarily all
cases+ which a claimant contractor has to overcome. >t will 5enerally have to
esta#lish )on a #alance o. pro#a#ilities+ that the loss which it has incurred )namely
the di..erence #etween what it has cost the contractor and what it has #een paid+
would not have #een incurred in any event. *hus1 it will need to demonstrate that its
accepted tender was su..iciently well priced that it would have made some net return.
>t will need to demonstrate in e..ect that there are no other matters which actually
occurred )other than those relied upon in its pleaded case and which it has proved are
likely to have caused the loss+. >t is wron51 as "ounsel su55ested1 that the #urden o.
proo. in some way trans.ers to the de.endin5 party. >t is o. course open to that
de.endin5 party to raise issues or adduce evidence that su55est or even show that the
accepted tender was so low that the loss would have always occurred irrespective o.
the events relied upon #y the claimant contractor or that other events )which are not
relied upon #y the claimant as causin5 or contri#utin5 to the loss or which are the
=.ault= or =risk= o. the claimant contractor+ occurred may have caused or did cause
all or part o. the loss.

)e+ *he .act that one or a series o. events or .actors )unpleaded or which are the risk
or .ault o. the claimant contractor+ caused or contri#uted )or cannot #e proved not to
have caused or contri#uted+ to the total or 5lo#al loss does not necessarily mean that
the claimant contractor can recover nothin5. >t depends on what the impact o. those
events or .actors is. 3n e9ample would #e where1 say1 a contractor@s 5lo#al loss is B1
million and it can prove that #ut .or one overlooked and unpriced B501000 item in its
accepted tender it would pro#a#ly have made a net returnH the 5lo#al loss claim does
not .ail simply #ecause the tender was underpriced #y B501000H the conse?uence
would simply #e that the 5lo#al loss is reduced #y B501000 #ecause the claimant
contractor has not #een a#le to prove that B501000 o. the 5lo#al loss would not have
#een incurred in any event. 0imilarly1 takin5 the same e9ample #ut there #ein5
events durin5 the course o. the contract which are the .ault or risk o. the claimant
contractor which caused or cannot #e demonstrated not to cause some loss1 the
overall claim will not #e rejected save to the e9tent that those events caused some
loss. 3n e9ample mi5ht #e )as in this case+ time spent #y '2"@s mana5ement in
dealin5 with some o. the li.t pro#lems )in particular the over,claddin5+H assumin5
that this time can #e ?uanti.ied either precisely or at least #y way o. assessment1 that
amount would #e deducted .rom the 5lo#al loss. *his is not inconsistent with the
jud5e@s reasonin5 in the Merton case that Ja rolled up award can only #e made in the
case where the loss or e9pense attri#uta#le to each head o. claim cannot in reality #e
separatedI1 #ecause1 where the tri#unal can take out o. the =rolled up award= or
=total= or =5lo#al= loss elements .or which the contractor cannot recover loss in the
proceedin5s1 it will 5enerally #e le.t with the loss attri#uta#le to the events which the
contractor is entitled to recover loss.

).+ F#viously1 there is no need .or the "ourt to 5o down the 5lo#al or total cost route
i. the actual cost attri#uta#le to individual loss causin5 events can #e readily or
practica#ly determined. > do not consider that Ninelott / was sayin5 in the Merton
case )at pa5e 102 last para5raph+ that a contractor should #e de#arred .rom pursuin5
what he called a =rolled up award= i. it could otherwise seek to prove its loss in
another way. >t may #e that the tri#unal will #e more sceptical a#out the 5lo#al cost
claim i. the direct linka5e approach is readily availa#le #ut is not deployed. *hat
does not mean that the 5lo#al cost claim should #e rejected out o. hand.

)5+ 48'@s "ounsel@s ar5ument that a 5lo#al award should not #e allowed where the
contractor has himsel. created the impossi#ility o. disentan5lement )relyin5 on
Merton per Ninelott / at 1021 penultimate para5raph and Jo1n Ho$$%n) per :yrne /
at pa5e A5+ is not on analysis supported #y those authorities and is wron5. Ninelott /
was re.errin5 to unreasona#le delay #y the contractor in makin5 its loss and/or
e9pense claimH that delay would have led to their #ein5 non,compliance with the
condition precedent #ut all that he was sayin5 otherwise was that1 i. such delay
created di..iculty1 the claim may not #e allowed. (e certainly was not sayin5 that a
5lo#al cost claim would #e #arred necessarily or at all i. there was such delay. :yrne
/ relied on Ninelott /@s o#servations and he was not sayin5 that a 5lo#al cost claim
would #e #arred #ut simply that such a claim =has #een held to #e permissi#le in the
case where it is impractical to disentan5le that part o. the loss which is attri#uta#le to
each head o. claim1 and this situation has not #een #rou5ht a#out #y delay or other
conduct o. the claimantI. >n principle1 unless the contract dictates that a 5lo#al cost
claim is not permissi#le i. certain hurdles are not overcome1 such a claim may #e
permissi#le on the .acts and su#ject to proo..
4A7. &ven i. a 5lo#al cost claim cannot #e allowed unless it was impractica#le or very
di..icult .or the "ontractor to relate every penny o. loss to each esta#lished and pleaded
event which entitled it to loss and/e9pense1 > am satis.ied that it was impractica#le or very
di..icult .or '2" in this case. *his project was1 essentially1 a complete mess .rom the
administrative side on the part o. 48' and its pro.essional team. *he jo# started with
remarka#ly little desi5n1 there were hundreds o. variations1 there was throu5hout the project
hopelessly late provision o. in.ormation and instructions to '2"1 there was a su#stantial
level o. discord #etween1 principally1 8r 8ackay and most o. his pro.essional team most o.
the time and there was a strate5y evolved #y 8r 8ackay which involved a55ressively
supervisin5 the pro.essional team and omittin5 a su#stantial amount o. work whilst leavin5
'2" with the work which he thou5ht '2" would have di..iculty in dealin5 with in time.
:y early 2007 until the end o. the project1 it was virtually impossi#le sensi#ly to pro5ramme
all the works #ecause it was not known what work and with what detail it would #e orderedH
this period was also con.used #y unsu#stantiated hints that 8r 8ackay mi5ht omit yet
.urther work.
4AA. >t is su55ested #y 48' and 8r ;ontin that much #etter cost records and allocations
could have #een maintained #y '2". 3n ade?uate cost record system was operated #y
'2" which was called the "F>!0 system which recorded all the costs incurred on Gnits 31
: and ". 35ainst these costs which materially identi.ied all the preliminary type costs
incurred #y '2" amon5st other costs1 '2" has sou5ht to allocate those preliminary items
which were e9pended or used on Gnit ". >t is said that1 instead o. an a.ter the event
allocation1 '2" could and should have done a contemporary and detailed allocation. 3n
e9chan5e in the oral evidence o. 8r (unter )4ay 13 pa5es 175,7+ con.irmed that the type o.
contemporaneous allocation su55ested #y 48'@s "ounsel was unrealistic and one which
he had never come across. >t #ecomes immensely arti.icial where many o. the same
preliminary costs items #ein5 deployed on two or three projects at once )as here+ .or
someone to sit down at the end o. each day and say that a precise time .or each item had
#een incurred1 particularly where1 as here1 many o. the same su#,contractors were #ein5
deployed on more than one Gnit at any one time and where many o. the same sort o.
pro#lems were #ein5 raised. >t is o. course not what '2"1 :243 or C<* actually did
either.
4A6. *he Noluntary ;articulars provided #y '2" #y way o. pleadin5 address the seven
items o. preliminaries and preliminaries =thickenin5= costs #y way o. =Fverview= sheets
and more detailed analysis in relation to each item. 3s a matter o. pleadin51 this is important
#ecause the only delay or disruption causin5 events which could #e relied upon were those
listed in the Fverview sheets as opposed to the more detailed analysis attachedH this was
ordered #y the "ourt on 24 8ay 2011 on '2"@s application to re,amend its ;articulars o.
"laim and arose #ecause there were some discrepancies #etween the Fverview sheets and
the #ack,up analysis.
460. &ssentially what '2" did in the Noluntary ;articulars was that1 .or each item o.
claim1 it listed the relevant events relied upon and then sou5ht in the #ack,up
documentation1 in prose .orm1 to spell out what additional or e9tended resources were
deployed and to seek to link them to the causes o. delay or disruption relied upon. 3ll these
additional or e9tended resources were then costed in a document called the 4etailed
3nalysis o. 2oss < &9pense. *his comprises a#out A0 mostly 33 sheets o. detailed analysis
which pick up on allocations o. time .or sta.. and resources at particular times and applies to
such allocations costs o#tained .rom '2"@s J"F>!0I computerised record keepin5 system.
*his was all supported #y relia#le evidence .rom '2"@s witnesses1 particularly 8r
8c8orrow1 much o. which was not challen5ed.
461. 'hat '2" has produced is not on analysis any 5lo#al or total cost claim. >t has
sou5ht to identi.y the speci.ic additional or e9tended resources and to link them to the
events upon which they rely as havin5 caused or 5iven rise to their need .or additional or
e9tended resources. >t has made allocations in respect o. such resources to Gnit ". 48'
su55ests that those allocations mi5ht #e wron5H however1 the "ourt can determine with
relative ease .rom the evidence whether such allocations are relia#le or not. >n terms o. the
e9tended preliminaries1 once the overall delay has #een esta#lished as havin5 #een caused
#y .actors which entitle '2" to loss and e9pense1 then it is o#vious 5enerally and
speci.ically .rom the evidence that '2" had to service the Gnit " project with sta..1 la#our
and other resources durin5 that delay periodH that must have cost somethin5. *he cost is
determina#le .rom the "F>!0 system to the e9tent that it is esta#lished that it was a
reasona#ly accurate and e..ective system )which it was+. Fne can take an e9ample1 say a site
supervisor on Gnit " who is on site .or an additional 45 weeks #y reason o. "lause 27
.actorsH i. he spent 100L or 50L o. his time on Gnit " durin5 this period1 the loss or
e9pense incurred #y '2" is his salary cost .or that additional 45 weeks )in .ull or hal. o. it
as the case may #e+. &ven i. one considers the =thickenin5= preliminary costs1 this is not
=total= or =5lo#al=. 3ll that '2"@s case and evidence 5oes to show is that durin5 certain
periods as a result o. alle5ed events it had to or did apply a 5reater level o. resource than
ori5inally allowed .orH a5ain1 i. the linka5e #etween the relevant event and the need to
provide a 5reater resource is esta#lished1 the costin5 o. it is esta#lished #y showin5 how
many man weeks were conse?uently necessary and how much the salary cost was .or those
man weeks.
462. &ven i. > am wron5 a#out the issue as to whether or not these are 5lo#al claims and
a#out the law1 > am wholly satis.ied on the evidence that it still remains appropriate to
proceed on such a #asis. > am satis.ied that '2" has com.orta#ly esta#lished that its
ori5inal prices )essentially .or the preliminaries+ were realistic1 sensi#le and at a level at
which1 i. the events complained o. had not happened1 no net loss would have arisen. >ts
tender was reviewed #y nationally known Euantity 0urveyors1 C<*H it is clear that the
.eelin5 was that i. anythin5 the tendered preliminary costs were hi5her than anticipated #y
C<*. >t is also clear that1 i. the preliminaries had #een si5ni.icantly underpriced1 C<*
would have picked that up at the tender selection sta5e )and it did not do so+. > accept 8r
8c8orrow@s evidence as to the ade?uacy o. the allowances made .or resources in the
tender. *here was evidence that the allocation o. resources was consistent with other
projects and possi#ly somewhat hi5her in some respects. > also accept the thrust o. 8r
(unter@s evidence that the tender allowances were ro#ust enou5h to mana5e the scope o.
work that could #e envisa5ed at tender sta5e.
463. *hat said1 there was an e9tensive de#ate a#out how many procurement packa5es
could have #een envisa5ed at the date o. the "ontract. &ssentially1 '2" says that what was
reasona#ly .oreseea#le were some 23 )or 3A+ packa5es1 this #ein5 set out in its tender
procurement pro5ramme. (owever1 there was no restriction within the "ontract
documentation as to how many packa5es o. work there could #e. *here mi5ht conceiva#ly
have #een one joinery packa5e1 #ut it is e?ually possi#le that there mi5ht have #een .ive or
si9 packa5es .or joinery items )cup#oards1 doors1 windows1 kitchen woodwork1 skirtin5s and
the like+. 'hilst > do not consider that it was at all unreasona#le .or '2" to assume that
there mi5ht only #e 23 )or 3A+ packa5es )and thus 23 or 3A su#,contractors to deal with+1 it
took the risk that there mi5ht #e more. >ndeed1 there were su#stantially more packa5es and
dou#tless )and indeed as its evidence shows+ '2" had to deploy additional resources to
deal with the 5reater than anticipated num#er o. packa5es. >t .ollows that the cost o. such
additional resources is not as such recovera#le and it will #e the "ourt@s jo# to identi.y as
#est as possi#le the resources and a sum #y way o. deduction which ade?uately re.lects this
cost.
464. >t is su55ested #y 8r ;ontin and 48' that the conversion o. the one contract
relatin5 to all three Gnits into three contracts dealin5 with just one Gnit each must or may
have led to there #ein5 too little in the tendered amounts .or preliminary costs to cover the
costs. 8r ;ontin however had carried out no real analysis o. this. > am satis.ied that the
point is wron5. *here was always 5oin5 to #e an economy o. scale and much o. the more
senior site mana5ement was a#le productively to com#ine its time on more than one unitH
thus1 .or instance1 the same su#,contractors )in many instances+ were used on all three units
and mana5ement could deal with collectivelyH each Gnit was only a .ew seconds away .rom
the others. *here was contemporaneously no hint or su55estion .rom anyone that the level o.
tendered preliminaries on Gnit " was inade?uate.
465. *hrou5hout the ;roject all parties1 '2"1 and 48'@s entire team includin5 C<*
who initiated or certainly endorsed such an approach1 proceeded on the #asis that the
appropriate methodolo5y .or recordin5 preliminary costs in relation to Gnits 31 : and " was
that '2" should record accurately the costs which it spent on all three ;lots and those costs
should then #e apportioned #etween all three Gnits to ena#le that apportioned cost to #e paid
.or under each o. the three contracts .or those ;lots. *hus1 )save .or two weeks only #etween
2 and 17 De#ruary 2007+1 48'@s team allocated the preliminary costs one third each as
#etween Gnits 31 : and " when they were all #ein5 worked on to5etherH however when
Gnit 3 was completed 48'@s team allocated the on5oin5 preliminary costs 50/50 #etween
the remainin5 Gnits : and ". *hat a5reed method o. workin5 has #een carried throu5h into
'2"@s claim. '2" has sou5ht to demonstrate the preliminary costs which it has incurred1
and then claim .or the sum spent in relation to ;lot " on the same apportioned #asis.
467. 48' and 8r ;ontin have responded #y raisin5 issues as to whether or not the
overall preliminary costs recorded #y '2" are accurate and #y seekin5 to undermine or
discredit the allocation to ;lot " and ar5uin5 that there.ore '2" cannot recover anythin5 in
respect o. those costs. 3lternatively1 they ar5ue that an apportionment o. a third throu5hout
is appropriate.
467. '2" relies upon the cost data recorded contemporaneously on its "F>!0 system.
(owever1 8r ;ontin raised issues as to the recordin5 o. those costs1 #y comparin5 )1+ the
contemporaneous .illed in and cross,checked allocation sheets with the site Jsi5nin5 in
#ookI and )2+ the allocation sheets and the data on the "F>!0 system and then pointin5 out
discrepancies #etween them. 8r 8c8orrow and 8r "orless dealt with this1e..ectively1 in
their statements. *heir evidence was that the ;reliminary "osts .or Gnits 31 : and " as a
whole were allocated usin5 sta.. allocation sheets each month. *hey were completed #y 8r
8c8orrow up to 4ecem#er 2007 and therea.ter #y 8r 0piers. *hey said that the updated
data .rom the allocation sheets would then #e inputted #y the .inancial controller onto the
system #y re.erence to a speci.ic jo# num#er and in so doin5 he cross,checked the allocation
sheets and ensured that any ?ueries arisin5 there.rom were raised and sorted out with 8r
8c8orrow or 8r "orless: where they resulted in adjustments those adjustments were made
directly onto the "F>!0 system.
46A. !o positive case was pleaded or put #y 48'/8r 8ackay to the e..ect that the costs
recorded in the "F>!0 system a5ainst the :olton@s ;lace ;roject were incorrect1 and no
noti.ication was made #y them that they considered either the contemporaneous allocation
sheets or "F>!0 data to #e .or5ed or dishonestly recorded. !otwithstandin5 this1 8r
;ontin@s evidence concerns not only remained #ut he took the view that the #est .i5ures to
use were those set out on the allocation sheets1 with the result that some B1101000 or more
should #e deducted .rom the claim. *hat was un.ortunate #ecause it #ecame clear in the
course o. cross e9amination that the reason why 8r ;ontin had adopted that stance was
#ecause he1 or perhaps one o. his team1 had or may have misunderstood '2"@s solicitors@
letter o. 7 !ovem#er 2011 which had #een #roadly corro#orated #y '2"@s evidence: whilst
he had misunderstood that letter as sayin5 that the correct .i5ures to use were those set out in
the allocation sheets. >t is clear )and he appeared1 .inally1 to accept+ that the letter said
e9actly the opposite in that it pointed out1 and was directly consistent with e9actly the same
point made #y the evidence o. 'alter 2illy@s witnesses1 that those .i5ures had #een adjusted
contemporaneously #y re.erence to the site sta.. and the "F>!0 .i5ures were there.ore the
most accurate. (e did e..ectively accept that i. > accepted '2"@s evidence his deduction
was wron5. >n the result1 > accept the evidence o. 8r 8c8orrow and 8r "orless on this
matter as eminently #elieva#le.
466. > am satis.ied that the "F>!0 system provided reasona#ly and su..iciently accurate
.i5ures .or the preliminary resources utilised and that the allocation set out in it was
appropriate. >t was a reasona#ly sophisticated1 contemporaneously maintained system
)which remained availa#le .or inspection durin5 the proceedin5s+1 supported #y disclosed
contemporaneous allocation sheets and contemporaneously cross,checked #y a .inancial
controller with people on site. '2" also o..ered contemporaneously .or C<* to come and
inspect whatever records they saw .it at '2"@s o..ices )particularly in relation to sensitive
.inancial in.ormation such as sta.. salaries+. (owever this o..er was never taken up #y C<*
nor was it ever in reality su55ested prior to Naluation 47 that the approach #ein5 adopted #y
'2" was incorrect.
500. 8r ;ontin su55ested that the allocation sheets and there.ore the "F>!0 system were
undermined #y discrepancies #etween them and the site si5nin5 in #ooks. (owever1 such
si5nin5 in #ooks are well known as likely to #e discrepant #ecause in real li.e people do not
always do as they are told and si5n the si5nin5 in #ook and also1 as importantly1 the site
si5nin5 in #ook does not )unsurprisin5ly+ re5ister time spent #y people on the project when
they are not physically on the site. *his was supported #y credi#le evidence .rom 8r
8c8orrow and 8r (unter. &ven 8r ;ontin accepted eventually in cross,e9amination that
the "F>!0 system was likely to #e more =correct= than the si5nin5 in #ooks.
!otwithstandin5 this1 8r ;ontin relied upon discrepancies #etween the si5nin5 in #ooks and
the eventual "F>!0 allocations as his .irst =step= in reducin5 the prolon5ation ?uantum.
*his was unjusti.ied in my jud5ement.
501. *he ne9t challen5e .rom 8r ;ontin was with the allocation1 initially one third to
each Gnit and then adjusted upwards .or Gnit " to re.lect the earlier completions o. Gnits 3
and :. Drom the time when the "ontract was split into three contracts1 one each .or Gnits 31
: and "1 with very limited e9ceptions C<* with :243@s approval adopted an approach o.
apportionin5 the overall preliminary costs #ein5 incurred #y '2" on the ;roject #etween
Gnits 31 : and " on a percenta5e #asis1 #ased on which o. them had #een completed. *hey
never allocated less than 33.3L to ;lot " when considerin5 loss and e9pense. 'hilst at
times1 '2" ar5ued that more resources should #e apportioned to : and " than 31 48'@s
team allocated 33.3L o. ;reliminary "osts to Gnit " .rom the start o. the ;roject to
!ovem#er 2007. *hey allocated at least 33L )and o.ten a hi5her percenta5e+ o. ;reliminary
"osts to Gnit " .rom 4ecem#er 2007 to De#ruary 2007. (owever1 #ecause no .urther
e9tension o. time was 5ranted1 they did not allocate any ;reliminary "osts to any ;lot .rom
the end o. De#ruary 2007.
502. '2" has in its claim in these proceedin5s reverted to apportionin5 the preliminary
resources e?ually .or the period up to 2 De#ruary 2007 whilst all three projects were JliveI
with 33.3L .or Gnit "1 .or the period 2 De#ruary 20071 when ;ractical "ompletion was
achieved on Gnit 3 until 2A 0eptem#er 20071 when ;ractical "ompletion was certi.ied on
Gnit :1 with 50L .or Gnit " )and 50L .or Gnit :+1 and a.ter 2A 0eptem#er 20071 when Gnit
" was the only incomplete project durin5 this period 100L .or Gnit ". *hat approach was
supported #y 8r (unter who said pra5matically in evidence: J...#y de.inition any
apportionment is 5oin5 to #e a process that has swin5s and rounda#outs. *o adjust those one
way or the other upsets T as .ar as > #elieve T the #alance o. the ori5inal arran5ement in
terms o. apportionmentI.
503. *his approach is challen5ed however #y 8r ;ontin and 48' who challen5e the
whole approach o. apportionment. *hey ar5ue that as '2" has continued that approach and
has not sou5ht to demonstrate which particular aspect o. its costs was incurred speci.ically
in relation to Gnit "1 it cannot recover any o. them. >n my jud5ement1 there is nothin5 wron5
with an attempt to apportion continuin5 site or project related costs on a project such as this
when three related projects are #ein5 done .or the same client1 at the same site1 with the
same 4esi5n *eam and with overlappin5 resources. *here could have #een no criticism .rom
48' i. a contemporaneous minute #y minute allocation or apportionment had #een done at
the time. 'hat has happened instead is that that allocation or apportionment was done on a
relatively #road #rush #asis at the time1 with the consent and approval o. all concerned1 and
that approach1 al#eit sli5htly adjusted1 continues to #e adopted. *he issue should #e1 not
whether apportionment is appropriate )#ecause it clearly is+ #ut1 what the ri5ht
apportionment is.
504. >t is naive i. not disin5enuous to su55est that little or nothin5 should #e allowed in
circumstances in which it is patently o#vious that su#stantial preliminary resources were
deployed on and .or the #ene.it o. Gnit " durin5 the periods o. delay .or which '2" was
entitled to e9tension o. time. Dor instance1 8r /oyce and 8r (owie spent on any account a
su#stantial proportion o. their time durin5 the periods o. delay on seekin5 to administer1
mana5e and control this project at Gnit ". 0ome o. their time may well have also #een spent
on Gnits : or 3 on matters .or which '2" had no entitlement to .inancial reim#ursement. >t
comes down there.ore to assessin5 how much o. their time was spent in helpin5 to service
the project durin5 the periods o. delay. *he parties can o. course ar5ue as to whether it
should #e one third1 one hal. or 100L #ut that '2" is entitled to su#stantial reim#ursement
is a#solutely clear. &ven 8r ;ontin accepts1 al#eit in the alternative1 that '2" should have
one third o. the relevant continuin5 resourcesH even that approach however is somewhat
ni55ardly #ecause a5ain it must #e o#vious that once Gnits 3 and : were completed '2"Qs
resources on the completed Gnits would and did 5o down su#stantially and1 su#ject to any
ar5uments a#out e9cessive costs or resources #ein5 deployed or allocated to Gnit "1 the
proportion o. preliminary resources deployed in relation to Gnit " was pro#a#ly and would
#e e9pected to #e 5reater a.ter each o. the other Gnits was completed.
505. 0u#ject to makin5 appropriate allowances .or the .actors or matters either .or which
'2" was responsi#le or which have not #een pleaded1 > am satis.ied that that the
apportionments made in these proceedin5s #y '2" in relation to the preliminaries were
reasona#le1 realistic and justi.ia#le.
507. Dinally1 in this conte9t1 48' sou5ht to ar5ue that in e..ect '2" had recovered all
or most o. its preliminary costs throu5h payments made #y 48' in relation to all three
GnitsH this was set out in ;ara5raphs 2303 to " o. the -e,-e,-e,3mended 4e.ence and
"ounterclaim and was endorsed #y 8r ;ontin. *he e9ercise involved identi.yin5 the total
cost as shown on the "F>!0 system .or all three Gnits1 deductin5 various redacted costs1
then addin5 various accrued lia#ilities to su#,contractors and the like to5ether with some
N3* and then .inally deductin5 payments re?uested in relation to Gnits 31 : and ". >t was a
.lawed e9ercise as the actual payments received in respect o. the three Gnits was B2.27
million less than the amounts said to have #een applied .or. >t there.ore did not show that the
preliminary costs had in .act all #een recoveredH it actually showed1 i. anythin51 that they
had not #een recovered .rom 48'. *here were other di..erences #etween the parties on this
set o. calculations and > pre.erred those put .orward #y '2" and its ?uantum e9pert.
507. > now turn to consider the seven individual heads o. prolon5ation loss or e9pense
which is claimed.
50A. > should emphasise that where > make allowances or adjustments .rom the sums
claimed > have i. anythin5 erred on the side o. caution and in .avour o. 48' and the
8ackays. > will re.er to realistic or reasona#le minimums or other allowances in terms o.
percenta5es o. resource or cost to #e allowed where appropriate1 where these represent the
#est that > can do on all the availa#le evidence.
Ite' + T1&67en&n/ 6o.t. 5< to M%r61 -==A
506. 3 5ross sum o. B11A152A is claimed .or e9tra preliminary type resources said to have
#een applied #y '2" in the period up to 8arch 20071 #y when the contract works should
ori5inally have #een completed. B271100 was allowed #y C<* and certi.ied #y :243. *he
Noluntary ;articulars );a5es 3757 to 3767 in the pleadin5 #undle+ were not seriously
challen5ed #y 48'@s "ounsel )there #ein5 little or no cross,e9amination o. the '2"
witnesses+ a#out this period #ut they were supported #y witness evidence .rom '2". *hey
re.er )amply supported #y a contemporaneous documents+ to a lar5e num#er o. delay and
disruption causin5 events relatin5 to pilin51 the .rames1 the pre,cast concrete1 the #rickwork1
the mechanical and electrical works1 the stone works1 joinery1 the main staircase1 the
kitchen1 the "ourtyard screens1 the li5htin51 the late procurement o. numerous other
packa5es as well as an increase in the num#er o. packa5es over what had actually #een
envisa5ed #y '2".
510. 3lthou5h num#ers alone do not always tell the whole story1 there was durin5 this
period a massive num#er o. revised drawin5s1 speci.ications and schedules issued )150A+1
147 .ormal 3rchitect@s >nstructions1 121 con.irmations o. ver#al )variation+ instructions and
some 246 Euestions and 3nswers sou5ht and provided #y the 4esi5n *eam. *he project was
hopelessly under,desi5ned and it matters not whether the .ault or responsi#ility was that o.
8r and 8rs 8ackay or one or more mem#ers o. their 4esi5n *eam. *his meant that durin5
what should have #een the ori5inal contract period the 4esi5n *eam was always on =the
#ack .oot= and there were su#stantial e..orts made to re,desi5n to seek to #rin5 costin5s
closer to the #ud5ets which had #een set. >t is clear .rom the e9tensions o. time which were
5ranted that :243 accepted that the su#stantial delays which occurred durin5 this period
not only justi.ied e9tension o. time #ut also reim#ursement o. the related loss and e9pense.
>ndeed1 48' and 8r 8ackay do not seek to challen5e or even undermine the e9tensions o.
time 5ranted up to De#ruary 2007.
511. > will not reiterate all the in.ormation set out in the Noluntary ;articulars #ut it is
a#undantly clear that a su#stantial amount o. additional resource was re?uired1 over and
a#ove what had reasona#ly #een allowed within '2"@s accepted tender rates. > #roadly
accept the contents o. the Noluntary ;articulars in so .ar as they set out the &vents@ impact
on resources and the need to utilise additional sta.. resources.
512. >t is necessary to ascertain as #est as one can how much o. the esta#lished costs
relate to the increase in the num#er o. the procurement packa5es )which in my view was a
risk retained #y '2"+ or #y other .actors which are either not pleaded or are otherwise the
risk or responsi#ility o. '2". >n the interests o. proportionality )and to prevent this
jud5ement stretchin5 to hundreds more pa5es+1 > propose simply to list with #rie. comments
as to what > .ind is due.
513. *he 4etailed 3nalysis o. 2oss and &9pense lists various heads which > will address:
>*&8 "F88&!*0 38FG!*
322F'&4 B
;ro.essional .ees B21771 is claimed .or #rin5in5 in a 8r
:rattle. (owever part o. his time was spent
in dealin5 with pilin5 5roundwork and
.rames su#,contractors which was part o.
'2"@s responsi#ility. (owever1 he also had
to deal with variations to the pilin5 which
were su#stantial and si5ni.icant. (al. o. this
cost is a reasona#le minimum allowance
11330
*emporary
accommodation
3 total o. B664 is claimed. > am satis.ied
that an additional container was re?uired to
accommodate additional sta... *his claim is
esta#lished as additional sta.. were re?uired.
664
*elephone1
.a91
"omputer
e?uipment
B177 is claimed #ut there seems to #e little
or no evidence a#out thisH this claim is
rejected.
!il
0ca..oldin5 B161A10 is claimed o. which B161226 relates
to su#,contractor sca..oldin5. ;art o. this
had to do with the need .or adaptations to
121A16
site compound sca..oldin5 needed to
accommodate additional ca#ins .or
additional sta... 3n appropriate minimum
allowance e?uates to a#out 2/3 to re.lect not
only the delays and the need to maintain
sca..oldin5 lon5er than mi5ht otherwise
have #een the case #ut also to accommodate
variations and the site compound
sca..oldin5.
;lant/pumpin5 B31A is claimed. *here is little or no relia#le
evidence a#out this.
!il
*emporary
plum#in5/
electrics
B71746 is claimed .or this which relates to
variations1 late instructions and additional
site esta#lishment .acilities. *his has #een
proved in .ull.
71746
0i5n#oards B75 is claimed. >t has not #een proved. !il
4rawin5s/manuals/
photos
B117A7 is claimed and is primarily relates to
the increase in num#er o. work packa5es
and is there.ore not allowa#le
!il
0undries B100 is claimed. >t has not #een proved !il
*ravel/su#sistence *hese costs )B1574+ are related to additional
sta.. re?uired. >t is a le5itimate head o.
claim and an allowance o. one third is a
reasona#le minimum assessment
520
&ntertainin5 B52 is claimed. >t has not #een proved. !il
Fther &9penses B35 is claimed. >t has not #een proved.
3dditional 0ta..
time
B741071 is claimed. *he minimum
additional time attri#uta#le to the matters
and events esta#lished is one hal. o. the
e9tra time and cost claimed .or 8essrs
/oyce1 8c8orrow1 2am#arth1 'hatlin51
'akeman1 (amilton1 and (ill and 8s
"ham#erlain )B211777+. !othin5 is allowed
.or 8s (aKelton or .or 8r Civin5s as most
o. their time appears to have #een
addressin5 the increased level o.
procurement. *wo thirds o. 8r Vanali@s time
should #e allowed )B51660+.
271757
0ite 0ta.. salaries
and cars re,char5e
*his is related to the additional sta.. time
and a reasona#le minimum allowance is one
third o. the B7465 claimed.
21175
3dditional site
la#our
B121A70 is claimed .or additional site la#our
which was primarily concerned with
variations1 late in.ormation and delays
durin5 this period. 3 reasona#le minimum
allowance is three ?uarters o. this sum.
61745
*F*32 322F'&4 72177A

#re$&'&n%r&e. 6o.t. 5< to +A Fe2r5%r0 -==>

514. '2" claims B3041765 .or e9tended preliminary costs attri#uta#le to the e9tension o.
time 5ranted #y :243 .or the delays. B2651756 was certi.ied and allowed .or this #y C<*
and :243. *he Noluntary ;articulars address this claim at pa5es 3767 to 3707. >t is1
conceptually1 a simpler claim than the =thickenin5= cost claim as it simply identi.ies the
resources )and related costs+ which were on or attached to the site .or the period o. time .or
which e9tension was actually 5ranted. *here was little or no .actual challen5e to the
contents o. the Noluntary ;articulars1 a5ain which were supported #y '2"@s evidence. 'hat
is claimed .or is the preliminary resources at the level ori5inally contracted .or. *hus1 40L
o. 8r /oyce@s time was ori5inally allowed .or and 40L o. his time1 at least1 was applied
durin5 this period. *o the e9tent that any additional time or resource was deployed1 that is
covered #y the =thickenin5= claim ).or which see #elow+.
515. *here was at that time and in the proceedin5s there has #een little or no complaint
a#out the per.ormance o. '2" durin5 this period. *here were a .ew minor complaints this
a5ainst '2" #ut nothin5 e9ceptional. >t should #e remem#ered that almost all the work was
#ein5 su#,contracted and the actual cost o. puttin5 ri5ht de.ects or de.iciencies would .all to
the o..endin5 su#,contractor. > am satis.ied that no additional mana5ement time or
preliminary resource was applied to deal with any such minor matters. *he period #etween
8arch 2007 and mid,De#ruary 2007 was one in which the administrative con.usion
continued apace with late instructions and numerous variations and there was no delay
causin5 .actor which was the .ault1 risk or responsi#ility o. '2".
517. > am satis.ied that this claim .or this period has #een proved in its entirety and that
there are no 5ood reasons .or reducin5 it at all. *he .ull amount should #e allowed.
Ite' B @ T1&67en&n/ 5< to +A Fe2r5%r0 -==>
517. *his claim relates to additional resources applied in the period #etween the ori5inal
completion date )13 8arch 2007+ and 17 De#ruary 20071 over and a#ove the #asic level o.
preliminaries )addressed in >tem 2 a#ove+. 3 5ross sum o. B24311A3 is claimed and BA51A7A
was allowed .or #y C<*. 35ain1 the Noluntary ;articulars address this claim in detail at
pa5es 3 707,1 to 3741 and that evidence is supported #y witness evidence1 particularly 8r
8c8orrow1 whose evidence > .ound to #e eminently credi#le.
51A. *he e9tensions as awarded #y :243 were1 a.ter the de.erred possession )a#out
which there is no issue+1 2A plus 21 days .or su#structure delays )15 !ovem#er 2005 and 6
De#ruary 2007+1 10 days .or additional draina5e works )6 De#ruary 2007+ 11 days .or
structural and .rame with variations )6 De#ruary 2007+1 4 days .or additional concrete .rame
works )6 De#ruary 2007+1 21 days .or additional work in relation to wind posts )6 De#ruary
2007+1 27 days .or #espoke damp proo. courses #y way o. variation )6 De#ruary 20071 and
16 days .or late electrical in.ormation )6 De#ruary 2007+1 21 days .or late in.ormation and
varied work relatin5 to the .rame and joinery procurement )2A /uly 2007+1 2A days .or
variations to the su#station )2A /uly 2007+1 5A days .or late instructions and variations
relatin5 to the su#station )15 0eptem#er 2007+1 27 days or variations relatin5 to the 5as
supply )14 !ovem#er 2007+ 42 days .or .urther 5as supply related delays )7 4ecem#er
2007+1 11 days o. .urther 5as supply issues )16 /anuary 2007 and 14 days or .urther 5as
supply pro#lems )2 De#ruary 2007+. >n addition it is clear that '2" was concurrently
delayed and disrupted #y other issues such as the 2i5ht 'all1 the late instructions .or the
:arrisol ceilin5s1 variations to the main entrance door1 late instructions and variations
relatin5 to joinery )particularly relatin5 to 3dams /oinery+1 variations and late instructions
relatin5 to the stone packa5e1 the hardwood .loorin51 the main staircase1 structural 5lass1
windows1 the steel work1 e9ternal decoration1 e9ternal works1 louvre 5rills1 mechanical and
electrical services1 internal #alustrades1 0ika renderin5 and the ed5e draina5e to the
swimmin5 pool1 plasterin51 dry linin5 and ceilin5s as well as other variations.
516. *his period covered the time when relations #etween :243 and 8r 8ackay in
particular deteriorated sharply and 8r 8ackay em#arked upon his strate5y o. havin5
Mnowles oversee his pro.essional team and o. pressurisin5 '2". *he project was in serious
delay1 throu5h no .ault on the part o. '2" and work was to a si5ni.icant e9tent #ein5 done
on a piecemeal #asis and in a hi5hly disruptive .ashion. >t is there.ore wholly understanda#le
that '2" had to deploy su#stantial additional resources to run and service the Gnit "
project. *he overwhelmin5 picture which emer5es is that the project was in crisis and the
.ault .or that lay #etween the 4esi5n *eam and 8r 8ackay. *here was a lack o. direction
and co,ordination .rom the 4esi5n *eam and this #ecame con.used still .urther when 8r
8ackay decided to #rin5 in Mnowles.
520. 3s the Noluntary ;articulars make clear1 the e9tra resources were re?uired essentially
.or three reasons1 late in.ormation1 variations and an e9tended procurement process
attri#uta#le to a 5reater than .oreseen num#er o. packa5es as well as the packa5es #ein5 o.
5reater scope and comple9ity than envisa5ed. Dor reasons indicated elsewhere the latter
cate5ory was '2"@s risk and it should not #e entitled to additional resources as a result. *he
other two cate5ories should attract an entitlement to reim#ursement.
521. *he sums claimed #y '2" are predicated upon the #asis o. an apportionment o. one
third to Gnit " )and one third each to Gnits : and "+1 save that .or the last two weeks .rom 2
to 17 De#ruary 2007 50L is allocated to Gnit " #ecause Gnit 3 had #een completed. >
consider however that .or that two week period a one third apportionment should continue to
apply #ecause it is pro#a#le that the resources continued to #e applied to Gnit 3 or1 at the
very least > am not satis.ied that they were not.
522. *akin5 into account what attracts reim#ursement and what does not )includin5 what
is not pleaded+1 > consider1 havin5 taken all the evidence into account1 that the .ollowin5
ascertainment can #e made in relation to this claim. *he 4etailed 3nalysis o. 2oss and
&9pense lists various heads which > will address:
>*&8 "F88&!*0 38FG!*
322F'&4 B
;ro.essional .ees B21456 is claimed .or the continuin5
use o. 8r :rattle in relation to desi5n
co,ordination .or additional and
e9tended pilin5 work as well as in
relation to e9ternal works and
#rin5in5 8r ;arnham to assist in the
commercial mana5ement and
e9tension o. time applications. > have
.ormed the view that a reasona#le
minimum attri#uta#le to .actors
which do attracts reim#ursement is
hal..
11226
*emporary
accommodation
3 total o. B11276 is claimed. > am
satis.ied that an additional container
was re?uired to accommodate
additional sta... *his claim is
esta#lished as additional sta.. were
re?uired.
11276
*elephone1 .a9
"omputer
e?uipment
B11602 is claimed and there is
evidence that due to the increase in
sta.. and la#our resources there is
651
likely to have #een an increase in the
use o. these .acilities. > a5ree. 3
reasona#le minimum allowance is
hal.
0ca..oldin5 B321444 is claimed o. which B311375
relates to su#,contractor sca..oldin5. >
am not satis.ied that the evidence
esta#lishes any linka5e #etween the
need .or sca..oldin5 provided #y
'2" and the matters complained o..
;art o. the su#,contractor sca..oldin5
had to do with the need .or
adaptations to site compound
sca..oldin5 needed to accommodate
additional ca#ins .or additional sta...
3n appropriate minimum allowance
e?uates to [ o. what is claimed .or
the su#,contractor sca..oldin5 to
re.lect not only the delays and the
need to maintain sca..oldin5 lon5er
than mi5ht otherwise have #een the
case #ut also to accommodate
variations and the site compound
sca..oldin5.
1517A2
"ranes/(oist B21A52 is claimed #ecause .ollowin5
the removal o. the tower crane in
Fcto#er 2007 8o#ile "ranes had to
#e deployed to remove temporary
accommodation #y reason o. the
amount o. sta.. on site and work still
remainin5 to #e completed. *his is
directly attri#uta#le to the overall
delay and is recovera#le in .ull
21A52
"lean and clear BA1467 is claimed relatin5 to the
provision o. additional domestic and
work packa5es waste removal
attri#uta#le to the increase in the
num#er o. work packa5es and the
e9tent and timin5 o. variations which
increased the num#er o.
su#contractors on site. 4ue to the
construction o. the new su#station at
the .ront o. ;lot " method o. waste
removal had to #e chan5ed .rom skips
to wheelie #ins and re.use collection
lorries1 this method o. removal #ein5
more e9pensive than skips.
4isallowin5 the ma9imum
attri#uta#le to the increase in the
num#er o. work packa5es1 a
reasona#le minimum allowance is
two thirds.
51774
*emporary
plum#in5/ electrics
B111A40 is claimed .or this which
relates to variations1 late instructions
and additional site esta#lishment
.acilities. *his has #een proved in
.ull.
111A40
4rawin5s/manuals/
photos
B41776 primarily relates to the
increase in the num#er o. work
packa5es. !othin5 is allowed.
!il
*ravel/su#sistence *hese costs )B41441+ are related to
additional sta.. re?uired .or the sta..
re?uired to service the variations and
late in.ormation and instructions. >t is
a le5itimate head o. claim and a
minimum allowance o. one third is a
reasona#le assessment
114A0
&ntertainin5 B11476 is claimed. >t has not #een
proved.
!il
Fther &9penses B335 is claimed. >t has not #een
proved.
!il
3dditional 0ta..
time
B741071 is claimed. *he minimum
additional time attri#uta#le to the
matters and events esta#lished is one
hal. o. the e9tra time and cost
claimed .or 8essrs /oyce1
8c8orrow1 'akeman1 (amilton1
Vanali and (ill and 8s "ham#erlain
and 8s "hapman )B331140+. Fne
?uarter o. 8r Ciddin5s time is
allowed as dealin5 with variations
)B11AA7+.!othin5 is allowed .or 8s
(aKelton1 8r :attley1 8r 0cott or .or
8r F@:rien as most o. their time
appears to have #een addressin5 the
increased level o. procurement and
non,claim related matters otherwise
not proved.
351027
0ta.. salaries and
cars rechar5e
*his is related to the additional sta..
time and a reasona#le minimum
allowance is one hal. o. the B171512
claimed.
A1257
3dditional site
la#our
B471353 is claimed .or additional site
la#our which was primarily
concerned with variations1 late
in.ormation and delays durin5 this
period. 3 reasona#le minimum
allowance is hal. o. this sum.
231177
2ess allowance .or only 1/3
allocation .or last two weeks
$21A00%
*F*32 322F'&4 1041725

Ite' C @ #ro$on/%t&on 5< to A Fe2r5%r0 -==?
523. *his claim relates to the #asic preliminaries e9tended over the period 17 De#ruary
2007 to 7 De#ruary 200A which is the date upon which '2" primarily pleaded that it had
achieved ;ractical "ompletion. 3lthou5h > have .ound that ;ractical "ompletion occurred
later1 .or convenience > will retain this end date o. 7 De#ruary 200A .or this item. >t has #een
.ound in this jud5ement that '2" is entitled to an e9tension o. time until the later ;ractical
"ompletion date. *he delays were caused in .act #y issues relatin5 to the 2i5ht 'all1 the
2eather in the 2i#rary1 the 0tin5ray doors and the :arrisol ceilin5s and related li5htin5.
*here were also delays relatin5 to the li5htin5 to two rooms1 '"2 and '"31 caused #y
variations1 al#eit that they did not cause overall delay. B2671047 is claimed .or these
e9tended preliminaries. > am satis.ied that all the sta.. identi.ied )8essrs /oyce1 8c8orrow1
-ou5h1 0piers1 Uems1 Dairweather1 ;acey1 Cad and Vanali+ were deployed e9tensively on
Gnit " durin5 this period and that this would have #een unnecessary #ut .or the .actors
which cause the overall delay. >n addition1 a 5ateman1 8r 0hields1 was re?uired .or part o.
the period )until 3pril 2007+. > am satis.ied that all the other heads o. claim )local authority
char5es1 temporary accommodation1 sa.ety and site speci.ic administration and sundries1
cranes and hoist1 plant1 pumpin5 and dryin5 out1 clean and clear operations1 the maintenance
o. hoardin5s and travel1 su#sistence1 entertainin5 and other related e9penses+ were e9pended
.
524. Dor this period o. 51 weeks1 50L o. the overall resources are allocated #y '2" to
Gnit " up to 2A 0eptem#er 2007 )when Gnit : was certi.ied as practically complete+ and
therea.ter 100L. > am satis.ied that this allocation is over5enerous to '2". >t is clear .rom
the documentation and other evidence that there continued to #e a not insi5ni.icant
deployment o. the resources on Gnit 3 until 0eptem#er 2007 and on Gnit : )and to a much
lesser e9tent Gnit 3+ therea.ter until early De#ruary 200A. Dor instance1 there were meetin5s
in relation to Gnits 3 and : to discuss .inancial matters and to resolve de.ects1 involvin5
sta.. who have also #een allocated to Gnit " >n my jud5ement1 havin5 considered all the
evidence1 > consider that overall no more than 10L o. the resources were #ein5 applied to
Gnit 3 in this .irst period and that a .air and realistic allocation until 2A 0eptem#er 2007 in
relation to Gnit " is 45L. *herea.ter1 .or the second period up to 7 De#ruary 200A1 a .air and
realistic allocation to Gnit " is A0L.
525. 3lso1 in the period 17 De#ruary 2007 to 7 De#ruary 200A1 there were two events
which1 whilst they did not cause overall delay1 were the risk and responsi#ility o. '2"1
namely the heated discussion a#out plasterin5 de.ects in the De#ruary to 3pril 2007 period
and the even more heated discussions and resolution o. the li.t pro#lems in the 8arch to
!ovem#er 2007 period. *hese were .or instance addressed #y 8r /oyce1 0piers and
Dairweather whose e9tended time has #een allocated to this period. *he .act that )as was the
case+ 48' su#stantially e9a55erated the e9tent and scope o. the de.ects and that e9tra time
had to #e deployed to deal with what turned out to #e di..icult clients whose relationship
with their pro.essional team was deterioratin5 does not detract .rom the need to make an
appropriate allowance o.. any cost or loss incurred #y '2" in relation to these matters. >n
addition1 there were adjudications durin5 this period1 in relation to which each party would
#e e9pected to pay its own costs and it is clear that not insi5ni.icant time was deployed #y
several o. the sta.. whose time is claimed .or under this headH there can #e no recovery in
respect o. that. >n my jud5ment1 a ma9imum deduction o. B301000 can and should #e made
.or these matters.
527. > see no reason to make any other adjustments .rom the costs which are otherwise
esta#lished in relation to the e9tended ordinary level o. resources1 save in relation to the sum
o. B7177A in relation to =sundries= which has not #een ade?uately proved. >n relation to
de.ects1 such as plasterin5 and li.t matters .or which '2" had the risk and have no claim1
they will #e taken into account at in the =thickenin5= claim in respect o. this period.
*here.ore a total o. B37177A .alls to #e deducted .rom the overall claim.
527. *he total which is le.t is B270127A which then needs to #e adjusted to re.lect the
percenta5e allocations re.erred to a#ove. 4oin5 the #est that > can1 and relatin5 the 45L
period to 227 days and the A0L to the #alance o. 131 days1 an additional 5L should #e
deducted .rom 227/357 times B270127A )BA123A+ and 20L should #e deducted .rom 131/357
times B270127A )B161101+1 leavin5 a #alance o. e9pense incurred in relation to this claim o.
B2321626.
Ite' D @ T1&67en&n/ 5< to A Fe2r5%r0 -==?
52A. 3 sum o. B2671610 is claimed .or additional resources applied durin5 this period.
*he same events re.erred to a#ove .or this period applied #ut there were also su#stantial
additional works relatin5 to the e9ternal works1 joinery and doors1 new plasterin5 work1 and
additional work emanatin5 .rom the deployment o. 48'@s direct contractors as set out in
the Noluntary ;articulars. *his latter pro#lem essentially involved su#stantial additional
attendance on a#out 50 directly employed contractors and included work such as openin5 up
completed works1 installin5 and li.tin5 up protection1 clearin5 ru##ish and waste materials
away1 supervision on health and sa.ety matters and the provision o. "48 o#li5ation related
services *here were a su#stantial num#er o. revised drawin5s issued in this period )23+1
architects instructions )134+ and 64 con.irmations o. ver#al instructions. *here were
particular time consumin5 pro#lems durin5 this period1 not least o. which were the 2i5ht
'all issues1 the 3dams /oinery matters particularly relatin5 to the 2eather in the 2i#rary and
the almost never,endin5 pro#lems associated with the li5htin5 a#ove the :arrisol ceilin5s.
*he ordinary and the underlyin5 level o. preliminary resources would never have #een
su..icient to accommodate all the pro#lems relatin5 to these issues.
526. 3lso1 in the period 17 De#ruary 2007 to 7 De#ruary 200A1 there were the two events
re.erred to a#ove1 plasterin5 de.ects in the De#ruary to 3pril 2007 period and the li.t
pro#lems in the 8arch to !ovem#er 2007 period. >n addition to the deduction within >tem 4
a#ove1 a .urther deduction .or these matters can #e no more than B201000 in relation to the
thickenin5 resources.
530. > accept '2"@s evidence #oth o. .actual witnesses and 8r (unter that the level o.
cost put .orward is esta#lished. (owever1 the total sum o. B2671610 .alls to #e reduced to
re.lect not only the di..erent percenta5e allocations applied in this jud5ement )see a#ove+
#ut also at this latter .actor. >n relation to the .irst o. these two reductions1 > apply the same
e9ercise as in relation to >tem 4 a#ove. Drom the su#,total #elow )B13217A5+1 an additional
5L should #e deducted .rom 227/357 times B13217A5 )B41203+ and 20L should #e deducted
.rom 131/357 times B13217A5 )B61745+1 the total #ein5 B13164A.
531. *akin5 into account what attracts reim#ursement and what does not )includin5 what
is not pleaded+1 > consider1 havin5 taken all the evidence into account1 that the .ollowin5
ascertainment can #e made in relation to this claim. *he 4etailed 3nalysis o. 2oss and
&9pense lists various heads which > will address:
>*&8 "F88&!*0 38FG!*
322F'&4 B
;ro.essional .ees B101706 is claimed .or the continuin5
use o. 8r :rattle al#eit in this period
in relation to complaints a#out
plasterin51 pool screens and the 5lass
li.t sha.t. Civen what > have said
a#ove1 the minimum allowa#le is
20L o. this )B21121+. !o less than
B47144A is claimed .or the continued
121121
use o. 8r ;arnham to assist in the
commercial mana5ement and
e9tension o. time applications. *his
has not #een .ully or ade?uately
e9plained #ut it is clear that he was
deployed and some time and
resources were applied #y him in
preparin5 e9tension o. time claims in
respect o. matters upon which as a
matter o. lia#ility '2" has
succeeded. 3 minimum o. B101000
has #een esta#lished1 as a matter o.
#est assessment. *he total allowa#le
there.ore is B121121.
*emporary
accommodation
3 total o. B21777 is claimed. > am
satis.ied that an additional container
was re?uired to accommodate
additional sta... *his claim is
esta#lished as additional sta.. were
re?uired.
21777
*elephone1 .a9
"omputer
e?uipment
B11043 is claimed and there is
evidence that due to the increase in
sta.. and la#our resources there is
likely to have #een an increase in the
use o. these .acilities. > a5ree. 3
reasona#le minimum allowance is
hal.
521
0ca..oldin5 B77A is claimed #ut little or no
evidence has #een provided which
supports this and nothin5 is allowed
!il
"ranes/(oist B21305 is claimed #ecause .ollowin5
the removal o. the tower crane in
Fcto#er 2007 8o#ile "ranes had to
#e deployed to remove temporary
accommodation #y reason o. the
amount o. sta.. on site and work still
remainin5 to #e completed. *his is
directly attri#uta#le to the overall
delay and is recovera#le in .ull
21305
"lean and clear B51716 is claimed relatin5 to the
provision o. additional domestic and
works packa5e waste and ru##ish
clearance attri#uta#le to the e9tent
and timin5 o. variations. 3 reasona#le
minimum allowance is hal. o. this.
21A06
*emporary
plum#in5/ electrics
B51036 is claimed .or this which
relates to variations1 late instructions
and additional site esta#lishment
.acilities. *his has #een proved in
.ull.
51036
'atchin5 and
li5htin5
B21657 is claimed .or this which is
not re.erred to in the Noluntary
!il
;articulars at all. !othin5 is allowed
4rawin5s/manuals/
photos
B11771 is claimed and primarily
relates to printin5 and photocopyin5
costs attri#uta#le to the increase in
the num#er o. procurement packa5es
al#eit that some relates to
documentation re?uested #y :243 in
relation to e9tension o. time
applications. 10L o. this is the
minimum which can have #een
incurred and which is recovera#le.
177
*ravel/su#sistence *hese costs )B51066+ are related to
additional sta.. re?uired .or the sta..
re?uired to service the variations and
late in.ormation and instructions. >t is
a le5itimate head o. claim and a
minimum allowance o. one third is a
reasona#le assessment
11700
&ntertainin5 B11476 is claimed. >t has not #een
proved.
!il
Fther &9penses B2A5 is claimed. >t has not #een
proved.
!il
3dditional 0ta..
time
B115175A is claimed. *he minimum
additional time attri#uta#le to the
matters and events esta#lished is one
hal. o. the e9tra time and cost
claimed .or 8essrs 8c8orrow1
(amilton1 (ol.ord and 'ells is and
8s (aKelton and 8s "hapman
)B571203+. !othin5 is allowed .or 8r
0cott or .or 8r (icks as this has
otherwise not #een proved.
571203
0ta.. salaries and
cars rechar5e
*his is related to the additional sta..
time and a reasona#le minimum
allowance is one hal. o. the B21535
claimed.
11277
3dditional site
la#our
B631752 is claimed .or additional site
la#our which was primarily
concerned with variations1 late
in.ormation and delays durin5 this
period. 3 reasona#le minimum
allowance is hal. o. this sum.
471A77
0u#,total 13217A5
2ess allowance .or 40L allocation
until 2A 0eptem#er 2007 and A0L
allocation therea.ter
3nd less allowance .or .actors which
were the risk and responsi#ility o.
'2"
$13164A%


$201000%
*F*32 322F'&4 6A1A37

Ite' A( #re$&'&n%r0 Co.t. &n65rre) %fter A Fe2r5%r0 -==?
532. *his head o. claim covers the periods #etween 7 De#ruary and 14 3u5ust 200A
)when ;ractical "ompletion was certi.ied+ and therea.ter up to 3u5ust 2006. *he .irst o.
these two periods represents a comprehensi#le and pleaded head o. claim and covers the
e9tended use o. resources in mana5in5 the site1 dealin5 with su#,contractors and attendin5
all artists and tradesmen en5a5ed #y 48' durin5 this period. *he second period involves1
not as such1 delay and disruption and the potential claim under "lause 27 #ut what '2"
considered was unjusti.ied investi5ations into a variety o. de.ects which all or mostly turned
out not to #e the responsi#ility o. '2".
533. 8r /oyce 5ave lar5ely unchallen5ed evidence a#out this in his main witness
statement at ;ara5raphs 17.1 to 17.46. > accept that evidence. &ssentially1 on a mis5uided
and wron5 )#oth .actually and le5ally+ #asis1 48' kept '2" on the site .or most o. this
period )up to 3u5ust 200A+ to address pro#lems which were not o. its makin5H these
pro#lems were the 2i5ht 'all1 the 3:' and the "ourtyard 0lidin5 doors and the puttin5
ri5ht o. hundreds o. sna5s1 dama5e or de.ects which were the .ull and responsi#ility o. the
artists and tradesmen en5a5ed #y 48' directly. :ut .or these matters1 ;ractical "ompletion
could1 should and would have #een secured and certi.ied very much earlier.
534. >t .ollowed that '2" was put in the position in which it had to maintain preliminary
type resources in terms o. sta.. as well as .acilities on and .or the site. *his is compounded
#y the .act that there was a mutual understandin5 and a5reement #etween the parties that
'2" would provide the "48 supervision role not only .or itsel. #ut also .or the artists and
tradesmen en5a5ed #y 48' durin5 this period.
535. >n terms o. the allocation o. costs .rom the "F>!0 system1 in my jud5ement a
reasona#le minimum allowance is and would #e 60L up to 3u5ust 200A. Gnit 3 had #een
completed .or over a year and Gnit : .or a#out si9 months. > can see no 5ood reason
.actually .or discountin5 the overall preliminary type costs #y more than 10L to re.lect the
application o. the resources to anythin5 other than Gnit ".
537. > draw a distinction however #etween the need to service the site until the certi.ied
date o. ;ractical "ompletion )14 3u5ust 200A+ and what happened therea.ter. 3.ter 14
3u5ust 200A1 undou#tedly costs were incurred and resources deployed. (owever1 there
would always to have #een a deployment o. some such resources .ollowin5 ;ractical
"ompletion1 whenever it occurred. *his is #ecause there was a 4e.ects 2ia#ility ;eriod and
durin5 such period there would always likely to have #een the application o. resources to
deal with de.ects or alle5ed de.ects and .inal accountin5 and1 these would not usually attract
any additional payment1 and only very unusually pursuant to "lause 27. > am there.ore
disinclined to .ind on a #alance o. pro#a#ilities that any lia#ility .or costs incurred a.ter 14
3u5ust 200A attracts any entitlement to #e paid.
537. > will set out #elow my assessment o. what is properly due and was as a realistic
minimum the loss and e9pense incurred:
>*&8 "F88&!*0 38FG!*
322F'&4 B
;ro.essional .ees B21204 is claimed .or the continuin5
use o. 8r :rattle al#eit in this period
in relation to complaints a#out the
2i5ht 'all1 the "ourtyard 0lidin5
doors1 the 3:'1 li.t sha.t1 roo.
works1 swimmin5 pool
11102
waterti5htness1 chimneys/.lues and
alle5ed water penetration elsewhere.
>t is clear .rom 8r /oyce@s evidence
that much o. his time related to the
.irst three itemsH the other matters do
not o#viously 5ive rise to any
entitlement. 3 realistic minimum cost
is hal. o. this .i5ure )B11102+. 3 sum
o. B3317A0 relates to other char5es
incurred .rom pro.essional
or5anisations in relation into
investi5ations into the 2i5ht 'all1 the
li.t enclosure and the "ourtyard
0lidin5 4oors as well as the
chimneys and .lues. >n my jud5ement
these are not caused #y the matters
complained o. as 5ivin5 rise to delay
and disruption #ut more to '2"
wholly understanda#ly wishin5 to
protect itsel. a5ainst what were
mostly unjusti.ied complaints.
*here.ore nothin5 is allowed in this
conte9t.
*emporary
accommodation
3 total o. B 41070 is claimed. > am
satis.ied that a temporary
accommodation and related costs
were incurred durin5 the period up to
the end o. 3u5ust 200A. > discount
this .i5ure however #y 10L to re.lect
the .ew items o. additional cost
which e9tended #eyond 3u5ust into
Fcto#er and !ovem#er 200A *his
claim is esta#lished as additional sta..
were re?uired.
31754
*elephone1 .a9
"omputer
e?uipment
B377 is claimed and there is likely to
have #een an e9tended use o. these
.acilities. > a5ree. 3 reasona#le
minimum allowance is 60L
33A
0ca..oldin5 B561 is claimed #ut little or no
evidence has #een provided which
supports this and nothin5 is allowed
!il
"ranes/(oist/
;umpin5
B11027 is claimedH #y reason o. the
delay an additional pallet truck had to
#e #rou5ht in to handle deliveries.
;art o. the cost relates to the
provision o. a small #attery operated
drill. 3 realistic minimum attri#uta#le
to the delay until mid,3u5ust 2000
and there is hal. o. this .i5ure
513
"lean and clear B465 is claimed relatin5 to the
provision o. additional domestic and
works packa5e waste and ru##ish
247
clearance attri#uta#le to the e9tent
and timin5 o. variations. 3 reasona#le
minimum allowance is hal. o. this.
4ryin5 out B747 is claimed. *here is little or no
evidence to support this.
!il
(oardin5s B21265 was incurred to secure all the
.ront and nei5h#ourin5 #oundaries.
*his is directly related to the delay
and was maintained until the end o.
/uly 200A. >t is recovera#le in .ull.
21265
0ettin5 out and .ire
precautions.
B455 is claimed .or these items which
are not re.erred to in the Noluntary
;articulars at all and 8r /oyce does
not address them. !othin5 is allowed
!il
4rawin5s/manuals/
photos
B7146A is claimed and primarily
relates to printin5 and photocopyin5
costs attri#uta#le to the need to
update Fperatin5 and 8aintenance
8anual in.ormation #y reason o.
variations as well as dealin5 with the
increase in the num#er o. work
packa5es. 0ome photocopyin5 was
done to issue numerous documents to
the new 3rchitect1 !avi5antH this is
not attri#uta#le to delay or disruption.
25L o. this is the minimum which
can have #een incurred and which is
recovera#le.
11A74
&lectricity/5as/
water
B3A2 is claimed and it is inevita#le
that #y reason o. the delay up to mid,
3u5ust 200A some .urther cost was
incurred. (al. o. this is a realistic
minimum.
161
*ravel/su#sistence *hese costs )B51417+ are related to the
e9tended sta.. re?uirements >t is a
le5itimate head o. claim and a
minimum allowance o. one third is a
reasona#le assessment
11A05
&ntertainin5 B740 is claimed. >t has not #een
proved.
!il
Fther &9penses B11104 is claimed. >t has not #een
proved.
!il
3dditional 0ta..
time
BA41017 is claimed. > am satis.ied that
hal. o. 8essrs /oyce@s and 0piers
time is recovera#le as attri#uta#le to
the delay until mid,3u5ust 200A 3/4
o. the time o. 8r Cad and 8r
Dairweather )B451577+. > allow
nothin5 .or the time spent #y 8essrs
0cott1 (icks1 4avies1 Croves1
Merri5an1 4ennis1 -ose1 4e 0ouKa or
351027
:oyssen. *hese o. either simply not
#een proved or they relate to
investi5ation into a variety o. de.ects
in 2006 which irrespective o. the
matter is complained o. is causin5
delay and disruption in these
proceedin5s would have #een
incurred in any event
3dditional site
la#our
B171743 is claimed .or additional site
la#our which was primarily
concerned with continuin5
distri#ution resources around the site.
*his involves one 5an5er #etween
De#ruary and 3u5ust 200A and one
5eneral la#ourer in 8arch1 3pril1
/une and /uly. *his is directly
concerned with the delay and the
continuin5 need to service the site. 3
realistic minimum is 75L
131307
2ess allowance o. 10L on additional
sta.. time
$31502%
*F*32 322F'&4 571A50
Ite' >( C$e%n&n/
53A. *his head o. claim is a somewhat anomalous one in that it does not on analysis relate
to delay or disruption. >t does relate however to a#ortive #uilders cleanin5 work apparently
done in 2007 when it was thou5ht that ;ractical "ompletion mi5ht have #een achieved. 8r
/oyce 5ives little or no comprehensi#le evidence a#out this and in my jud5ement it is not
recovera#le #ecause it is not o#viously related to any o. the matters which are the su#ject
matter o. complaint in these proceedin5s. > have no dou#t that the costs were incurred #ut
they are not directly attri#uta#le to variations1 the delay as such or indeed any particular
instruction .rom the 3rchitect.
S5''%r0 of Re6o3er%2$e #re$&'&n%r&e. Co.t.
536. Drom the allowances made a#ove1 a total o. BA701714 is allowa#le and due to '2"
in relation to preliminaries costs #y reason o. the delays and disruption su..ered as the result
o. the matters .ound in this jud5ement1 made up as .ollows:
>tem 1: 72177A
>tem 2: 3041765
>tem 3: 1041725
>tem 4: 2321626
>tem 5: 6A1A37
>tem 7: 571A50
>tem 7: !il

*otal : BA701714

He%) Off&6e O3er1e%) %n) #rof&t
540. B2771171.6A is claimed .or delay related loss o. overhead and pro.it. *his represents
a well esta#lished #asis o. claim where#y a contractor1 which has su..ered delay on
compensa#le 5rounds seeks the losses which it has su..ered as a result o. not #ein5 a#le to
take on other projects as a result o. that delay and disruption )here to Gnit "+1 that loss #ein5
the loss o. its opportunity to de.ray its head o..ice overheads over those other projects and
the loss o. pro.it .rom those lost jo#s. *his has #een discussed and approved in cases such as
Norwe.t Ho$.t Con.tr56t&on Lt) 3 C!S $1667% 3;;.2.-. 12/021 !1&tt%$ B5&$)er. Co
Lt) ( 39 C1e.ter($e(Street D&.tr&6t Co5n6&$ ) 16A5+ 12 "onst 2/ 2571 )2+ J9 9F&nne/%n Lt)
39 S1efEe$) C&t0 Co5n6&$ )16AA+ 43 :2- 130 )3+ Bee61woo) De3e$o<'ent
Co'<%n0*S6ot$%n), Lt) 39 St5%rt M&t61e$$ )2001+ ">22 1727.
541. >n this case1 '2" use a .ormula1 the &mden .ormula1 to assess the loss o. overheads
and pro.it. >n A$fre) M6A$<&ne Ho'e. Nort1 Lt) 3 #ro<ert0 %n) L%n) Contr%6tor. Lt)
)1665+ 77 :2-1 ((/ (umphrey 2loyd E"1 considerin5 an appeal .rom an ar#itrator1
addressed the issue o. the various .ormulae in relation to such claims at pa5es 70,71:
JPthe &mden .ormulaPis one o. a num#er o. methods conventionally applied in an
attempt to arrive at an appro9imation o. the dama5es supposedly incurred #y a
contractor where there has #een delay to the pro5ress o. the works where#y
completion is similarly delayed. *he theory is that #ecause the period o. delay is
uncertain and as the contractor can take no steps to reduce its head o..ice e9penditure
and other overhead costs and cannot o#tain additional work there are no means
where#y the contractor can avoid incurrin5 the continuin5 head o..ice e9penditure1
notwithstandin5 the reduction in turnover as a result o. the suspension o. delay to the
pro5ress o. the work. *he reduced activity no lon5er there.ore pays its share towards
the overhead costs. *his type o. loss )sometimes called a claim .or =una#sor#ed
overheads=+ is however to #e contrasted with the loss that may occur i. there is a
prolon5ation o. the contract period which results in the contractor allocatin5 more
overhead e9penditure to the project than was to have #een contemplated at the date
o. the contract. *he latter mi5ht perhaps #e #est descri#ed as =additional overheads=
and will1 o. course1 #e su#ject to prove that additional e9penditure was in .act
incurred.

Durthermore the (mden .ormula1 in common with the 'udson .ormulaPand with its
3merican counterpart the (ichleay .ormula1 is dependent on various assumptions
which are not always present and which1 i. not present1 will not justi.y the use o. a
.ormula. Dor e9ample the 'udson .ormula makes it clear that an element o.
constraint is re?uiredPie in relation to pro.it1 that there was pro.it capa#le o. #ein5
earned elsewhere and there was no chan5e in the market therea.ter a..ectin5
pro.ita#ility o. the work. >t must also #e esta#lished that the contractor was una#le to
deploy resources elsewhere and had no possi#ility o. recoverin5 costs o. the
overheads .rom other sources1 e.5. .rom an increased volume o. the work. *hus such
.ormulae are likely only to #e o. value i. the event is causin5 delay is )or has the
characteristics o.+ a #reach o. contractPI
542. ((/ 22oyd E" went on to say in relation to "lause 27 in relation to the e9ercise o.
ascertainment that ==to ascertain= means =to .ind out .or certain= and it does not there.ore
connote as much use o. jud5ment or the .ormation o. an opinion had =assess= or =evaluate=
#ein5 used=.
543. "onsiderin5 these various authorities1 the .ollowin5 conclusions can #e drawn:
)a+ 3 contractor can recover head o..ice overheads and pro.it lost as a result o. delay
on a construction project caused #y .actors which entitle it to loss and e9pense.

)#+ >t is necessary .or the contractor to prove on a #alance o. pro#a#ilities that i. the
delay had not occurred it would have secured work or projects which would have
produced a return )over and a#ove costs+ representin5 a pro.it and/or a contri#ution
to head o..ice overheads.

)c+ *he use o. a .ormula1 such as &mden or (udson1 is a le5itimate and indeed
help.ul way o. ascertainin51 on a #alance o. pro#a#ilities1 what that return can #e
calculated to #e.

)d+ *he =ascertainmentI process under "lause 27 does not mean that the
3rchitect/Euantity 0urveyor or indeed the ultimate dispute resolution tri#unal must
#e certain )that is sure #eyond reasona#le dou#t+ that the overheads and pro.it have
#een lost. ((/ 2loyd E" was not sayin5 that assessment could not #e part o. the
ascertainment process. 'hat one has to do is to #e a#le to #e con.ident that the loss
or e9pense #ein5 allowed had actually #een incurred as a result o. the "lause 27
delay or disruption causin5 .actors.
544. >t is there.ore necessary to review the evidence o. .act in this case1 which primarily
came .rom 8r "orless1 who > .ound to #e a honest1 reasona#le and satis.actory witness
whose evidence > accept. 8r "orless has 5iven detailed evidence that '2"@s J#usiness
modelI and mode o. operation is and was to use only direct employed )that is not a5ency+
sta.. in lead roles when carryin5 out contracts. >ts :usiness 4evelopment 4epartment was
tasked to identi.y suita#le contracts to tender which would commence on site at a time when
the appropriate sta.. #ecome availa#le1 that is .ollowin5 the completion o. their current
projects or when their e9pertise is no lon5er re?uired on a particular project. '2"@s
directors assisted in this process #y carryin5 out a review o. .uture tenderin5 opportunities
and sta.. availa#ility on a weekly #asis every 8onday mornin5. *hus the strate5y was
constantly under review and allowed the relevant director to accept or reject tender
opportunities dependin5 upon resource availa#ility ahead o. their receipt in the o..ice.
:etween /anuary 2007 and 0eptem#er 200A '2"@s tender success rate was in the order o. 1
in 4 )e9plained in evidence to #e #ased on tenders su#mitted+. 4urin5 that period '2" had
to and did decline a num#er o. tenderin5 opportunities: that was not said va5uely1 or in a
vacuum o. support: the opportunities received and declined were precisely detailed on a
comprehensive schedule attached to 8r "orless@ statement.
545. 8r "orless stated that one o. the primary reasons .or declinin5 opportunities was
that '2" had a num#er o. employees that were still en5a5ed on Gnit " project and until
they were released .rom their duties there they could not #e considered availa#le .or other
contracts. *he levels o. time commitment re?uired o. mana5ement resource .or Gnit " were
clear .rom the statements o. 8essrs /oyce1 (owie and 8c8orrow. >t was inevita#le1 he said1
that #ut .or the involvement o. mana5ement sta.. in Gnit " over a prolon5ed period other
opportunities could have #een pursued. >t was clear .rom the schedule )attached to the
statement+ that the num#er o. opportunities in the relevant period was si5ni.icant and the
market .or the type o. projects constructed #y 'alter 2illy was relatively #uoyant in the
2007 to 200A period. (e went on to say: J3s a conse?uence o. not #ein5 permitted to do so
the mana5ement team1 comprisin5 o. those individuals listed a#ove1 were on site .or
additional durations and could not #e made availa#le .or other projects. 3s a result the
#usiness was prevented .rom ac?uirin5 more pro.ita#le contractsI. (e was .irm in evidence
that he was a#solutely con.ident that1 i. '2" had had the mana5ement team .rom Gnit "
availa#le1 more tenders would have #een su#mitted and one in .our tendered projects would
have #een secured.> accept that evidence.
547. 3 num#er o. points are made #y 48'1 its "ounsel and 8r ;ontin1 only some o.
which were put to 8r "orless. >t is said .irst that there was no disruption attri#uta#le to Gnit
" a.ter /une 200A. *hat does not take the discussion anywhere #ecause the delays in this
case and the e9tension and thickenin5 o. resources that started within a .ew weeks o. the
commencement o. the project in 2004. >t is wron5 and indeed illo5ical to consider the loss
o. pro.it and overhead as #ein5 initiated solely in the period .rom the ori5inal date .or
completion in 8arch 2007 to 14 3u5ust 200A. >. the project had 5one to plan and without
delay and disruption1 the mana5ement team would have #een capa#le o. #ein5 released in
part durin5 the ori5inal contract periodH put another way1 not all the mana5ement team
needed to #e on site or allocated to the project .or the whole o. the ori5inal contract period.
*he loss o. pro.it and overhead is le5itimately calculated #y re.erence to the delay period
#ecause pro.it and overhead .rom other projects would have #een 5enerated in that period.
*his is a #ad point in any event #ecause loss o. overhead and pro.it is not claimed #eyond 4
De#ruary 200A.
547. 0econdly )and 8r "orless was not asked a#out this+1 it is su55ested that there was no
disruption to '2"@s tenderin5 opportunities in 2007 #ecause 8r (owie said that in that
year '2" had #een a#le to recruit additional mana5ement sta.. to .ul.il tender
opportunities1 that #ein5 supported #y re.erence to an increase in construction personnel in
2007. *hat however misses the point #ecause1 i. the mana5ement team .rom Gnit " was
availa#le in 2007 to #e deployed elsewhere yet more tenderin5 projects could have #een
em#arked upon.
54A. *hirdly )and a5ain 8r "orless was not asked a#out this+1 it is su55ested that #ecause
'2"@s construction sta.. went down sli5htly )#y .ive+ #etween 2005 and 2007 some o. its
loss o. overhead and pro.it must have #een due =to its own internal sta..in5 issues=. > attach
no or little wei5ht to this point not only #ecause it was not put to him #ut also #ecause in
lo5ic a small chan5e in the num#er o. construction sta.. could #e attri#uta#le to any num#er
o. .actors. *he point is in any event a #ad one #ecause the mana5ement team .rom Gnit "
who were employed #y '2" would still have #een availa#le to #e deployed on other
projects.
546. Dourthly1 there was some cross,e9amination o. 8r "orless a#out the schedule
attached to his statement to the e..ect that .or some o. the tenders in 2007 '2" declined to
tender .or reasons which were not connected with Gnit ". 8r "orless accepted a num#er o.
these points. (owever the 5eneral point is not a 5ood one #ecause the claim is in truth more
analo5ous to a loss o. opportunity claim1 namely that #ecause '2" could not deploy its
Gnit " team elsewhere and thus it lost the opportunity to tender .or any num#er o. projects
on the #asis o. deployin5 that mana5ement team with the pro#a#ility #ein5 that it would
have secured su..icient pro.ita#le work .or that team to produce returns durin5 the period o.
delayH it has thus lost pro.it and overhead recovery which it would otherwise pro#a#ly have
secured i. the delay had not happened.
550. Di.thly1 8r ;ontin deployed what 48'@s "ounsel has called a =sense check= which
involved re.erences to the '2" company accounts which identi.ied overall a 6.7L
overhead o..ice overheads and pro.it recovery in 2007 and compara#le returns in 2007 in
200A. (e su55ests that there were .luctuations and lower percenta5es in two previous years1
a hi5h level o. repeat orders1 increased turnover and pro.it in 2007 in 200A and an increase
in employee num#ers in 2007 to 200A which he su55ests demonstrates that the current claim
is inconsistent with what actually happened. > disa5ree1 notin5 that none o. this was put to
'2" witnesses. >t was only in 200A that the #ankin5 crisis #e5an to emer5e and the
economy and in particular the house,#uildin5 sector )in 2ondon and particularly in the hi5h
value residential sector in which '2" operated with some success+ had #een vi#rant
#etween 2007 and 200A. *here is no real reason to #elieve other than that1 i. '2"@s
competent and e9perienced mana5ement team deployed on Gnit " had #een availa#le much
earlier than they were1 .urther work would have #een secured and the pro.it and overhead
returns would there.ore have #een 5reater in the years 2005/20071 2007/2007 and
2007/200A.
551. 0i9thly1 it is ar5ued that '2" always thou5ht that the project could last A0 to 60
weeks. >t is true that at tender sta5e1 in the a#sence o. any si5ni.icant amount o. desi5n
in.ormation1 '2" did say that the pro5ramme period could #e in the re5ion o. A0 to 60
weeks. (owever it committed itsel. contractually to a 7A week contract period and there is
no 5ood reason to #elieve other than that it would have completed the works within that
period #ut .or the .acts which this jud5ement has determined delayed it.
552. *he .inal point )not put to any '2" witness+ was that 8r Dairweather1 the Gnit "
site a5ent1 only had one third o. his time allocated to Gnit " #etween /anuary 2007 and
/anuary 2007 and 50L #etween De#ruary and 0eptem#er 2007. > do not really understand
the relevance o. this point #ecause it is well known in the construction industry that
e9perienced site mana5ement mi5ht #e deployed partly on one project and partly on another.
8r Dairweather could there.ore have #een deployed elsewhere in respect o. the part o. his
time which was deployed on Gnit ". >n any event1 8r Dairweather was allocated 100L to
Gnit " as he was the speci.ic mana5er .or Gnit ".
553. *here is little di..erence #etween the Euantity 0urveyin5 e9perts as to how to
calculate this particular claim. 'here there are sli5ht di..erences > pre.er the calculation o.
'2" as endorsed #y 8r (unter. (ead F..ice overheads and pro.it are only claimed up to 4
De#ruary 200A and the weekly loss is identi.ied as B415AA.71 )compared with 8r ;ontin@s
.i5ure o. B41544.64+. *his multiplied #y 66 weeks .or the delay up to 4 De#ruary 200A with
credit #ein5 5iven1 wholly properly1 .or the overhead and pro.it recovered #y '2" on the
di..erence #etween the amount o. pro.it and overheads earned on the works )#y way o. the
4[L addition to overheads and pro.it+ and the tendered overhead and pro.it allowance. *his
produces a net sum o. B2741675.12 )as calculated #y 8r (unter1 which is1 i. anythin51
5enerous to 48' as the amount o. overheads and pro.it encompassed #y the 4[L is less
than the pleaded amount.
554. *his claim is there.ore esta#lished in .ull.
S52(Contr%6tor Lo.. %n) E;<en.e
555. '2" seeks B77A1251.6A in relation to the claims .or delay and disruption which
were su#mitted #y its su#,contractors. 48'@s pleaded case is that nothin5 is due. (owever1
the parties have moved somewhat closer .ollowin5 8r ;ontin@s concession in the Euantum
&9pert@s /oint 0tatement that he had #een instructed that sums totallin5 B611377.66 in
respect o. payments .or loss and e9pense included in the E0@s valuation !o. 47 #ut e9cluded
.rom the -e,-e,-e,-e,3mended 4e.ence and "ounterclaim .or three o. these
su#contractors1 namely :ansal )B371443.77+1 0terlin5 0ervices )B1A1333.33+ and 'allis
)B351701.00+ are now accepted #y 48'.
557. *hat leaves three su#,contractor claims in dispute1 3dams /oinery )B1751313.32+1
3ndrews )B261100.77+ and !orstead )which has already #een settled in the sum o.
B3621470+. > will deal with each claim in reverse order.
Nor.te%)
557. !orstead was the mechanical and electrical en5ineerin5 su#,contractor en5a5ed to
carry out all such works in the three Gnits. *he su#,contract #etween '2" and !orstead
was evidenced #y or contained in '2"@s 0u#,"ontract Frder dated 31 8arch 2005. 8ost o.
the su#,contract works were the su#ject matter o. provisional sums. *he anticipated
commencement date was 20 /une 2005 and the duration was speci.ied as 42 weeks. Drom its
later claim in Fcto#er 200A1 !orstead accepted that commencement was de.erred .rom /une
2005 to 5 0eptem#er 2005H thus1 the completion date was to #e 42 weeks later1 namely 27
/une 2007. >n the result1 !orstead did not su#stantially complete their works until 7
De#ruary 200A1 there thus #ein5 overall delay #eyond the projected completion date o. some
66 weeks. >t is true to say that the mechanical and electrical work was1 apparently1 nearin5
completion in De#ruary 2007 #ut there remained commissionin5 works and1 more
importantly in the conte9t o. the delays1 a persistent .low o. variations over the .ollowin5 11
to 12 months.
55A. *hrou5hout the evidence1 documentary and otherwise1 there was little or no criticism
o. !orstead in relation to delays #y it. >t is #eyond dou#t that it was severely delayed and
disrupted1 not only #y the delays which impacted upon '2" ).or which '2" was and is
entitled to compensation and e9tension+1 #ut also #y .actors which impacted particularly
upon !orstead. >n this latter cate5ory .all a vast num#er o. seriously delayed in.ormation
and instructions. >ts claim descri#es a hand to mouth release o. in.ormation and instruction
to them. 3 5ood e9ample o. si5ni.icantly disruptive .actors )descri#ed earlier in this
jud5ement+ are the repeated re,workin5 o. the electrics a#ove the :arrisol ceilin5s in the
;ool and the "inema and the numerous alterations and adjustments to the 2&4 li5htin5
within the 2i5ht 'all. *he numerous complaints made #y it in its claim are re.lected1 i. not
entirely1 lar5ely in the documentary evidence that supplied to the "ourt )in the & #undles
principally+.
556. !orstead@s Fcto#er 200A claim was put on two 5rounds1 the .irst e..ectively #ein5 #y
way o. adjustment o. the provisional sums and the second a more #y re.erence to measured
and varied work plus loss and e9pense. *he claim was .inancially the same on either #asis:
8easured 'orks B522103A.00
Nariations BA761070.00
3dditional ;reliminaries/plant B4331247.AA
3dditional la#our costs )reduced productivity+ B4A61746.37
2ess allowance .or preliminaries recovered $B5000.00%
Gnder recovery o. overheads B571470.06
Dundin5 cost on a#ove B111716.54
3dditional .undin5 cost due to under,valuations B1551634.20
"ost escalation B701144.27

*otal B217031253.33

C<* included the sum o. B1131612.75 in Naluation and 47 in relation to !orstead@s loss and
e9pense.
570. 8r (owie 5ave lar5ely unchallen5ed evidence which > accept )in his *hird
0tatement+ o. the events which led up to the settlement #etween '2" and !orstead. >n
summary1 he descri#ed how .rom 8arch 2007 onwards attempts were made to a5ree
measured and varied works with !orstead and how in 0eptem#er 2007 representatives .rom
!orstead@s parent company were e9pressin5 .rustration a#out the lack o. attention to the
other claims which they were makin5 in their interim accountsH adjudication was threatened.
*hat was then .ollowed #y the period in which C<* were told not to issue any .urther
valuation recommendations. *herea.ter1 the appointment #y C<*@s o. a new 8<& surveyor
slowed the process down and he was una#le to devote su..icient time in any event to the
account. 3 new partner was involved #y C<* who took a very hard line with !orstead@s
account1 the unavoida#le in.erence #ein5 that he was under pressure .rom 48' to do so.
8eanwhile1 #y the end o. summer in 200A there was near a5reement on the measured and
variation sections o. !orstead@s account .or all three Gnits. *he claim was presented in its
.inal .orm #y !orstead in Fcto#er 200A. *here .ollowed an e9chan5e o. comments.
571. >nternally and at a hi5h level1 '2" did an analysis in relation to Gnit " as to what
the various !orstead claims were worth. *his resulted in e9ercise which assessed the
minimum and ma9imum values .or the di..erent heads o. claim:
8easured 'orks/Nariations B113571540.00
3dditional ;reliminaries/plant B231126A/2571530
3dditional la#our costs )reduced productivity+ B1221412/1731217
2ess allowance .or preliminaries recovered $B5000.00%
Gnder recovery o. overheads !il/B571470.06
Dundin5 cost on a#ove !il/B111716.54
3dditional .undin5 cost due to under,valuations!il/
B551543

"ost escalation B171537/351072

*otal B1172317A7/B1163110A1
572. Fn 13 /anuary 20061 '2" reached a .ull and .inal settlement with !orstead in the
overall sum o. B1175010001 this #ein5 some B271000 a#ove the minimum value which it had
put on the overall entitlement. >n these proceedin5s1 5iven the level o. a5reement relatin5 to
the measured works and variations1 '2" with some lo5ic attri#utes the #alance to loss and
e9pense attri#uta#le to delay and disruption.
573. *he .irst issue to consider is whether or not the settlement was a reasona#le one1
havin5 re5ard to cases such as B&//&n @3( #er'%n&te $1651% 2 M: 314 and1 more recently1
A;% In.5r%n6e U7 #$6 @3( C5nn&n/1%' L&n).e0 Un&te) K&n/)o' $2007% &'(" 2023
S&e'en. B5&$)&n/ Te61no$o/&e. FE L&'&te) @3( S5<er.1&e$) L&'&te) $2010% :2- 145. >n
the latter case1 8r /ustice -amsey reviewed many o. the relevant authorities and concluded
that ;ara5raph A0:
J>n my jud5ment the .ollowin5 principles can1 in summary1 #e derived .rom the
authorities:
)1+ Dor " to #e lia#le to 3 in respect o. 3Qs lia#ility to : which was the su#ject o. a
settlement it is not necessary .or 3 to prove on the #alance o. pro#a#ilities that 3 was
or would have #een lia#le to : or that 3 was or would have #een lia#le .or the amount
o. the settlement.
)2+ Dor " to #e lia#le to 3 in respect o. the settlement1 3 must show that the speci.ied
eventuality )in the case o. an indemnity 5iven #y " to 3+ or the #reach o. contract )in
the case o. a #reach o. contract #etween " and 3+ has caused the loss incurred in
satis.yin5 the settlement in the manner set out in the indemnity or as re?uired .or
causation o. dama5es and that the loss was within the loss covered #y the indemnity
or the dama5es were not too remote.
)3+ Gnless the claim is o. su..icient stren5th reasona#ly to justi.y a settlement and the
amount paid in settlement is reasona#le havin5 re5ard to the stren5th o. the claim1 it
cannot #e shown that the loss has #een caused #y the relevant eventuality or #reach o.
contract. >n assessin5 the stren5th o. the claim1 unless the claim is so weak that no
reasona#le party would take it su..iciently seriously to ne5otiate any settlement
involvin5 payment1 it cannot #e said that the loss attri#uta#le to a reasona#le
settlement was not caused #y the eventuality or the #reach.
)4+ >n 5eneral i.1 when a party is in #reach o. contract1 a claim #y a third party is in the
reasona#le contemplation o. the parties as a pro#a#le result o. the #reach1 then it will
5enerally also #e in the reasona#le contemplation o. the parties that there mi5ht #e a
reasona#le settlement o. any such claim #y the other party.
)5+ *he test o. whether the amount paid in settlement was reasona#le is whether the
settlement was1 in all the circumstances1 within the ran5e o. settlements which
reasona#le people in the position o. the settlin5 party mi5ht have made. 0uch
circumstances will 5enerally include:
)a+ *he stren5th o. the claimH
)#+ 'hether the settlement was the result o. le5al adviceH
)c+ *he uncertainties and e9penses o. liti5ationH
)d+ *he #ene.its o. settlin5 the case rather than disputin5 it.
)7+ *he ?uestion o. whether a settlement was reasona#le is to #e assessed at the date
o. the settlement when necessarily the issues #etween 3 and : remained unresolved.I
574. 3lthou5h this summary is in the conte9t o. #reach o. contract claims1 there is
nothin5 to distin5uish it in practice .rom a "lause 27 claim .or cost incurred as the result o.
a settlement. >t is o. course necessary .or '2" in this case to demonstrate that the re5ular
pro5ress o. the 'orks or o. any part thereo. had #een materially a..ected #y any one or more
o. the matters re.erred to in clause 27.2 and that in conse?uence !orstead had #een delayed
and disrupted. 3s a result o. that1 it needs to demonstrate that it was put in a position in
which it .aced a su#stantial and #roadly meritorious claim which it was reasona#le to settle.
;ut another way i. the need to settle with those parties was caused #y delay and disruption
caused #y 48' and the settlement .ell within the Jreasona#le ran5e o. settlementI )see
-amsey / a#ove+1 '2" can recover.
575. >n the A;% case the "ourt stated at ;ara5raph 273:
J > draw .rom that case and the cases ?uoted with approval in it that:
)a+ i. there is no e..ective causal link #etween the #reaches o. duty o. the de.endant
and the need .or the claimant to enter into the settlement with a third party or the
payment o. the sums pursuant to the settlement a5reement1 there will #e no lia#ility to
pay the settlement sums irrespective o. whether the settlement was reasona#le.
)#+ *he onus o. proo. in esta#lishin5 the reasona#leness o. the settlement is upon the
claimant. *hus1 there must #e some relia#le evidence .or the court to conclude that it
was a reasona#le settlement.
)c+ *he mere .act that the claimant is not lia#le to the third party either at all or .or all
the sums paya#le pursuant to the settlement is not necessarily a #ar to recovery or to
the esta#lishment o. the reasona#leness o. the settlement. (owever1 the .act that the
claimant was not lia#le to the third party either at all or .or anythin5 approachin5 the
sums paya#le may #e a .actor in determinin5 that the settlement was unreasona#le.
)d+ 'here a settlement is not esta#lished as reasona#le1 it is still open to the claimant
to recover .rom the culpa#le de.endant elements o. the sums paid pursuant to the
settlement to the third party to the e9tent that it can #e proved that there is an e..ective
causal link #etween the payment o. those sums and the esta#lished #reaches o. duty.
>n those circumstances1 it is le5itimate .or the court to consider and esta#lish what was
likely to have #een paya#le as a matter o. .act and law to the third party as the
.oreseea#le result o. the de.endantQs #reaches.I
>t is open to the "ourt in appropriate circumstances to make an apportionment o. the
settlement sum i. and to the e9tent that it can #e con.ident that the sum allowed represents a
realistic and reasona#le allowance which can sa.ely #e attri#uted to the matters .or which
the de.endin5 party is lia#le.
577. 8r (unter did review !orstead@s claim .rom the standpoint o. the e9tent to which it
was reasona#le. (is e9ercise is contained in 3ppendi9 0 to his .irst report and it seeks to
analyse critically the ?uantum put .orward so that downward adjustments are made to the
!orstead delay and disruption related losses as claimed. *his reduces the total .rom B1.7
million down to some BAA51000. (e concludes there.ore that .rom a ?uantum perspective
the settlement at a#out 44L o. his downwardly adjusted .i5ure is reasona#le.
577. 8r ;ontin@s and 48'@s primary position is that nothin5 is due #ecause the claim
can not #e supported #ut that i. one is to proceed #y way o. the #est assessment some
B1741000 is due which includes nothin5 .or the disruption or loss o. productivity. >n my
jud5ement the primary position is simply unrealistic. >t is #eyond dou#t that !orstead was
and must have #een very su#stantially delayed and disrupted not only #y the simple .act that
it was on the site workin5 .or 66 weeks lon5er than it had anticipated )a 237L increase on
the a5reed su#,contract period+ #ut also #y the unavoida#ly disrupted nature o. its own and
all the other work. 8r ;ontin has analysed diary records and the .iles provided #y !orstead
in support o. its claim and has .ormed the view that they do not demonstrate or prove in an
a#solute sense all the claims put .orward. (is analysis o. the loss o. productivity or la#our
disruption claim i5nores the overwhelmin5 in.erence )i. nothin5 else+ that there must have
#een very su#stantial disruption and loss o. productivity .or which !orstead is unlikely to
have #een reim#ursed under the measured or variation part o. the evaluation.
57A. >n my jud5ement1 the settlement achieved with !orstead was a reasona#le one in all
the circumstances. '2" was .aced with a .rustrated and increasin5ly a55ressive su#,
contractor which1 #y and lar5e1 had ri5ht on its side. >t had #een seriously delayed .or
reasons which entitled it to a .ull e9tension o. time and it was and must have #een o#vious
to '2" that there was a pro#a#ility that !orstead would recover not only the e9tended
preliminary costs .or such delay #ut also some compensation .or disruption and escalation in
costs. >t is likely that this was the #est settlement availa#le and in reachin5 that view > take
into account the .act that this settlement was achieved #e.ore there had #een any reco5nition
#y 48' or its advisers that any .urther e9tension #eyond De#ruary 2007 was dueH it was in
'2"@s interests to keep the settlement as low as it could achieve 5iven that pendin5 the
likely .uture liti5ation it would have to pay the unpaid element o. the settlement to !orstead
with no certainty that it would #e recovered .rom 48'. '2" was put in a position in
which it .aced a su#stantial and #roadly meritorious claim which it was reasona#le to settle.
*he need to settle with those parties was caused #y delay and disruption caused #y 48'
and the settlement .ell well within the Jreasona#le ran5e o. settlementI.
576. 'hilst it is reasona#le to take as the startin5 point the settlement e..ectively achieved
in relation to the delay and disruption cost and loss to !orstead1 there is or may #e a residual
uncertainty as to whether there was an e9act or 100L correlation in terms o. all the .actors
attri#uta#le to 48' which delayed and disrupted '2" and !orstead and other .actors
which delayed and disrupted !orsteadH .or instance1 there may #e .actors which have not
#een pleaded which disrupted !orstead. >n my jud5ement1 it would #e sa.er to allow some
amount o.. the .ull amount o. the settlement and1 in seekin5 to allow an amount which the
"ourt can #e con.ident directly relates to no less than !orstead was entitled in relation to the
.actors attri#uta#le to 48' and .or which '2" is entitled to compensation1 > .i9 that sum
at B3001000.
An)rew.
570. 3ndrews was appointed #y '2" #y a su#,contract order dated 20 !ovem#er 2005
to carry out plasterin5 to walls and ceilin5s in Gnit " .or B1151045. *he ori5inal contract
period involve commencement on 3 /anuary 2007 with completion within 12 weeks. 'ork
actually commenced on 17 /anuary 2007 #ut was not completed until 15 3pril 20071 al#eit
that 3ndrews was re?uired to return to site .rom time to time therea.ter. *he overall contract
period was there.ore e9tended #y some 75 weeks. 3t a .airly early sta5e1 3ndrews was
re?uired #y way o. variation to carry out e9tensive additional drywall ceilin5 and partition
work )#y 0ite >nstruction 2153 on 30 8arch 2007+. *hat led to a su#stantial increase in the
cost o. the #asic plasterin5 works over and a#ove what had #een the su#ject matter o. the
ori5inal order.
571. 3ndrews su#mitted a claim relatin5 to all three Gnits on 15 !ovem#er 2007 with the
total claim #ein5 B11A1731. 4elays were attri#uted to a su#stantial num#er o. variations1 out
o. se?uence workin51 con.licts #etween drawin5s re?uirin5 su#stantial revisions1 late
8echanical and &lectrical desi5n1 late release o. 3rchitect@s drawin5s1 incorrect ali5nment
o. e9ternal windows and delays particularly in relation to joinery works. &ssentially1 the
claim is made up in relation to the delays #y what are called =additional overheadsI .or 74
weeks )at a rate o. B21517 per week+ and .or a supervisor@s time .or 20 weeks therea.ter at
one day a week )at a rate o. B217 per week+. *he overheads are essentially preliminary type
costs such as a contracts and project mana5er.
572. *his claim has not #een settled #ut '2" personnel )unnamed+ have produced a
commentary on the claim in relation to Gnit ". >t notes )and in this it is supported #y
contemporaneous documentation+ that in .act 3ndrews continued workin5 on the site a.ter
15 3pril 20071 al#eit that no additional allowance .or that is claimed other than .or the
e9tended supervision therea.ter. *he commentary re.ers to the .act that o. the 2A7 site
instructions re.erred to in the claim as 5ivin5 rise to variations only 73 were speci.ic to Gnit
" with a .urther 2A relatin5 to Gnit " in part only. *he commentary says that all the delays
su..ered #y 3ndrews were caused #y matters .or which 48' is lia#le. Fddly1 when turnin5
to the ?uantum1 '2" allowed a hi5her rate .or the overheads )B21757 per week+ #ut only
applies this rate to the .irst 44 weeks o. delay and therea.ter .or the remainin5 20 weeks it
only allows B700 a week .or a contracts mana5er to visit and supervise the project. >t allows
the post,completion supervisor claim in .ull as reasona#le and an additional underplayin5
demand o. B750. *his produces a net recovera#le sum .or all three Gnits o. BA71302. *hat is
then divided #y three to re.lect the .act that the total sum relates to all three Gnits1 producin5
a net .i5ure o. B261100.
573. *here are clearly some di..iculties with this approach in that it can not #e reasona#le
)or commercially sensi#le+ to increase rates over and a#ove that which a su#,contractor
claims or to add an additional allowance which is not claimed. (owever that only adds just
under B71000 to the overall amount or some B21300 to the sum allocated to Gnit ". 8r
(unter picked up these points and several others. 8r ;ontin has done a very detailed
analysis o. this claim and produces a .i5ure valuin5 the 3ndrews claim #etween BA16A7.57
)i. no .urther e9tension o. time is allowed and B121447.70 i. .urther time is awarded+. 8r
(unter .ollowin5 his reports su55ests the .i5ure o. BA150A .or Gnit ".
574. *here can #e no dou#t that 3ndrews was seriously delayed #y events which entitled
it #ut also '2" to loss and e9pense under "lause 27. *he e9ercise must now #e to
determine what the appropriate amount is. Civen that the two e9perts are now close to each
other1 > am satis.ied that the .i5ure #etween the two at BA1700 is a reasona#le and sensi#le
allowance.
A)%'. Jo&ner0
575. 3dams /oinery .eatures in si5ni.icant parts o. this jud5ement in particular in relation
to e9tensive joinery in numerous rooms throu5hout the house1 the 2eather in the 2i#rary and
the 3:'. *he su#,contract with 3ndrews was contained in '2"@s order dated 13 /anuary
2007 al#eit that the le5al relationship was not entered into #e.ore 8arch 2007. *he su#,
contract price was B7471573H the anticipated commencement date was 20 8arch 2007 and
the a5reed duration was 20 weeks. *here is no issue that 3dams was on site .or 63 weeks
until 25 /anuary 200A. *here were very su#stantial and e9tensive variations over the whole
period in relation to 3dams. 3lthou5h there were interim noti.ications o. claims1 3dams put
in a compendium claim in /anuary 2010.
577. *hat claim was .or the total sum o. B2671407.16 and a .ull e9tension o. time was
sou5ht. *he le5al #asis o. the claim was in e..ect pursuant to "lause 271 alternatively as part
o. the evaluation o. variations or alternatively as dama5es .or #reach o. contract. &ssentially1
the claim .ell into three cate5ories1 time related preliminary costs )such as site supervision1
visitin5 mana5ement1 e9tended travel1 e9tended protection and cleanin5+1 additional time
related head o..ice overheads )calculated on a .ormula #asis+1 and .inancin5 costsH there was
a claim .or additional e9pert ?uantity surveyin5 services as well .or assistance in relation to
the claim.
577. '2" prepared a commentary on this claim which assesses the overall value at
B1751313.32. 35ain1 as in the 3ndrews matter1 it accepted that all the delays arose .or
reasons .or which 48' was lia#le. '2 " accepted .ive o. the heads o. claim in .ull
)supervision/travellin5 costs at B4A147A.211 visitin5 mana5ement at B4A132A1 drawin5 o..ice
sta.. and mana5ement at B171412.A71 transport costs/e9penses at B221062.43 and travel
costs/e9penses o. la#our in the sum o. B171751.A1+. 3s re5ards the .inancin5 costs1 lar5ely
#ecause o. the drop in the value o. the assessment compared with the claim overall only
B121270 was allowed a5ainst a sum o. B501632.62 claimed #y 3dams /oinery.
57A. 8r (unter has analysed this claim and .ound various remainin5 inconsistencies
which would reduce the amount to #e due to 3dams /oinery to B1531542.41. *hese
inconsistencies were the hours not si5ned in and related travel costs1 hours duplicated in day
works and an a#atement .or the supervision allowance in dayworks. 8r ;ontin has carried
out another very detailed analysis which runs to 37 pa5es o. his .irst report which
incorporates a su#stantial appendi9. (is view is that 3dams claim is worth no more than
B71672.32.
576. *here is little or no hint o. criticism o. 3dams in relation to pro5ress in any o. the
contemporaneous documentation or evidence1 other than in relation to the 2eather in the
2i#rary .or which1 as > have .ound1 it was not lia#le. >t is clear and > .ind on the evidence is
overwhelmin5ly likely that that it was delayed .or the whole period o. delay #y variations
and late instructions principally and #y other .actors .or which 48' was at risk and
responsi#le under the "ontract.
5A0. Gnless and to the e9tent that 3dams /oinery has #een paid .or its e9tended
preliminaries throu5h payments already received #y it1 it o#viously did incur a seriously
e9tended level o. such preliminary resources. *here was a very lar5e amount o. additional
involvement o. mana5ement1 supervision and desi5n teams o. 3dams1 and the
documentation certainly supports this1 to deal with numerous chan5es as well as the simple
need .or it to #e on site .or over 70 weeks more than it was contracted .or. 8r ;ontin has
done some =reverse en5ineerin5= to try to demonstrate in e..ect that there was a more than
su..icient allowance in the .irst two sets o. accepted ?uotations .rom 3dams /oinery to cover
supervision .or all or most o. the 63 weeks. (e was o#viously very uncom.orta#le in the
witness #o9 when seekin5 to de.end this. 'hat he had done was to take the sum o. B401027
to #e .ound in various ?uotations as coverin5 supervision )B321522 covered #y the ori5inal
su# contract order and B71505 included in seven later variation instructions+. >n one o. the
?uotations )3> 25A"+ he .ound a rate o. B575 per week .or supervision. (e then said that i.
one divides B401027 #y B575 there are nearly 70 weeks worth o. supervision. *hat1 with
respect to him1 is at #est naive and at worst scrapin5 the #arrel. >. B321522 .or supervision
was incorporated into the ?uotations covered #y the ori5inal order1 that was simply to cover
the supervision .or the works covered #y the ori5inal orderH in simple arithmetical terms1
supervision was to #e char5ed as a lump sum #ut i. one translates it into a weekly cost
spread over the ori5inal su# contract period o. 20 weeks that #ecomes B11727. *he only
point which can #e made is that credit should #e 5iven .or speci.ic supervision covered #y
variations1 namely B71505.
5A1. (e also seeks to deduct A weeks o. supervision time in respect o. time spent with
sna55in5 and remedial works. *hat a5ain is a #ad point. >t is an inevita#le conse?uence o.
modern contractin5 that time is always allowed in the pro5ramme .or conse?uential
sna55in5 which inevita#ly re?uire some supervision. > am not surprised that up to A weeks
was spent on the process 5iven all the pro#lems at the site and the presence o. numerous
directly employed contractors. >n any event1 the overall delay remains at 73 weeks and
additional supervision would have to have #een involved in any event.
5A2. 8r ;ontin also seeks to deduct 17 weeks worth o. supervision time in relation to
there #ein5 no supervisor recorded on site. 8r (unter in his analysis has reduced the
allowa#le amounts #y over 7 weeks o. supervision time .or a variety o. .actors includin5 the
supervisors not #ein5 shown in the si5nin5,in lo5. > had no reason to dou#t and > accept that
8r (unter has made an appropriate reduction .or there #ein5 no supervisors on site.
5A3. !e9t1 8r ;ontin seeks to su55est that visitin5 mana5ement did not in .act visit the
site1 #y re.erence to =two randomly selected periods=. (e su55ests that .rom that e9ercise
there is likely to have #een an e9a55eration o. the num#er o. additional visits. (e also
su55ests that all or much o. the additional visits were covered #y ?uotations. 8r (unter
challen5es that this analysis is correct and points out that much o. the mana5ement time
would not necessarily #e spent in actually visitin5 the site a#ove would #e workin5 .rom
head o..ice. *hat is amply #orne out #y the evidence1 .or instance particularly in relation to
8r (awks o. 3dams /oinery who i. anythin5 was spendin5 a lar5e part o. his time in
handlin5 the variations1 the late in.ormation and a very su#stantial amount o. liaison with
:243 in relation thereto. > accept 8r (unter@s approach in this re5ard.
5A4. 8r ;ontin seeks to undermine the allowances sou5ht to #e made in relation to
drawin5 o..ice sta.. lar5ely on the #asis that where there were accepted ?uotations ).or
variations+ the prices would have covered .or the production o. .a#rication drawin5s and
=rods=. > a5ree that there is somethin5 in this point #ut it does not take into account a
su#stantial amount o. what must have #een a#ortive drawin5 o..ice time. 8r ;ontin allows
B51171 and that is a .i5ure > can and do sa.ely adopt as an appropriate allowance.
5A5. 8r ;ontin ar5ues that transport costs .or materials are lar5ely not justi.ied #ecause
they were or may have #een allowed .or within the various ?uotations. (e also points to
various anomalies1 .or instance the .act that 62 lorry trips were made a.ter De#ruary 2007
when he says that the manu.actured joinery was e..ectively completed. (owever1 he i5nores
the .act that #ecause the overall su#,contract period was su#stantially e9tended the joinery
site sta.. still needed to have materials delivered on a re5ular #asis. 3lthou5h he allows
B11270 a5ainst this su#,claim1 in my jud5ement that this is much too low and a realistic
minimum o. B101000 must represent the additional transport costs in ?uestion.
5A7. !e9t1 8r ;ontin considers the allowance .or 3dams /oinery la#our transport costs.
(e considers that there is nothin5 in this claim #ecause 3dams /oinery will have recovered
throu5h its rates .or measured work or throu5h dayworks .or the value o. the daily travel
allowance .or 3dams /oinery workmen. (e does hi5hli5ht a mathematical error where#y
3dams /oinery claims nominally .or B171751.A1 actually adds up to B151717.74. *hat seems
to #e a 5ood point which 8r (unter cannot and does not try to e9plain. 35ain 8r ;ontin@s
main point does not re.lect the .act that the work.orce had to #e on site .or 63 weeks instead
o. 20 weeks. 'hilst he makes a .air point that the ?uoted additional work and daywork will
allow .or la#our cost includin5 travel allowances1 this does not cover the .ull e9tended
period on site. 3 realistic minimum o. B51000 should #e su..icient to recompense 3dams
/oinery .or travel allowances which are not covered #y the accepted prices.
5A7. 8r ;ontin accepts the principle o. a .inance char5es claim #ut only allows pro rata in
relation to the sum which he considers is likely to #e due to 3dams /oinery. >n those
circumstances1 > will pro rata the .inancin5 char5e allowance.
5AA. >n summary1 > .ind that '2" is lia#le to 3dams .or loss and e9pense in relation to
the delays which it su..ered and that this is properly attri#uta#le on the .acts to .actors .or
which 48' is lia#le to '2". >n summary1 the amounts which > award in this conte9t are:
0upervision/travellin5 costs )B4A147A.21, B71505+ B401673.21
Nisitin5 mana5ement B4A132A.00
4rawin5 o..ice sta.. and mana5ement B51171.00
*ransport costs/e9penses B101000.00
*ravel costs/e9penses o. la#our B51000.00
0u#total B1061472.21
2ess 8r (unter@s allowances B111770.61
0u#,total B671761.30
3dd pro rata .inancin5 char5es )56L 9 B121270+ B71233.40
*otal B1041624.70
5A6. *he total to #e allowed is B1041624.70 )3dams /oinery+1 BA1700 )3ndrews+1
B3001000 )!orstead+ and B611377.66 )now admitted+. *his totals B5051002.76.
C$%&' #re<%r%t&on Co.t.
560. *his claim is .or some B431000 .or 8r ;arnham@s time in preparin5 claims .rom time
to time al#eit that 8r (unter only supports some B401000 o. this. 'hilst in principle > do
consider that this could #e a valid head o. a loss and e9pense claim under "lause 271 it is
very di..icult to unravel precisely what 8r ;arnham actually did. > have made some
allowances .or 8r ;arnham@s time in the preliminaries claims )see a#ove+ as it is clear that
he was in e..ect an additional preliminary resource needed to help mana5e the delay which
was occurrin5 and the administrative hiatus which emanated .or the 4esi5n *eam. (owever1
part o. his time was spent in puttin5 to5ether e9tension claims which were not as such
pursued in these proceedin5s and part to address the dou#tless a55ravatin5 involvement o.
MnowlesH it was unwise and a55ressive on the part o. 8r 8ackay to #rin5 in Mnowles #ut it
was not somethin5 which as such 5ives rise to an entitlement to loss and e9pense.
561. > am not satis.ied that any additional sum has #een proved over and a#ove the )al#eit
conservative+ allowance which > have already made in relation to 8r ;arnham.
Ot1er Defe6t.
562. :e.ore considerin5 the de.ects it is necessary to consider the impact o. the settlement
achieved #etween 48' and 8r and 8rs 8ackay on the one hand and :2431 ":;1 /0> and
&?uation. *he settlement a5reement was dated 15 /uly 2011. 'hilst o. course it was
sensi#le .or 8r and 8rs 8ackay and 48' to settle1 it is in some respects a curious
document in that the pro.essionals a5reed to pay B1.A million1 o. which BA751213.50 related
to costs1 #ut it contains no #reakdown o. which pro.essionals paid what. 3ppendi9 1 is more
curious #ecause1 whilst all the parties a5reed the split #etween lia#ility and costs and that
77.5L related to de.ects and 32.5L to loss and e9pense1 there then .ollows 48'@s own
#reakdown1 pre.aced #y the .ollowin5 words:
J48' wish to record their view as to how the 0ettlement should #e .urther #roken
down )its inclusion does not re.lect an a5reement #y the third parties in that re5ard+
which is as .ollowsI.
*here then .ollows a #reakdown o. the mechanical and electrical and architectural de.ects
totallin5 B72417A7.50. 3lmost none o. them overlap with the de.ects pleaded a5ainst '2".
563. 8any o. the de.ects .or which it continued to assert lia#ility a5ainst '2" were
de.ects which were previousl )prior to receivin5 B1.A million in settlement+ alle5ed a5ainst
one or more mem#ers o. the pro.essional team: .or e9ample:
)a+ 3:'1 where B2A61671.76 and B214.72 is claimed1 was prior to settlement1 claimed .rom
:243 and /0>H
)#+ &9ternal /oinery where B471756.21 is claimed1 B471756.21 was1 prior to settlement1
claimed .rom :243H
)c+ 2i5ht 'all1 where B276127A.02 is claimed1 B471756.21 was1 prior to settlement1 claimed
.rom :243H
)d+ "ourtyard 0lidin5 4oors1 where B651277.A0 is claimed and was1 prior to settlement1
claimed .rom :243H and
)e+ 0tin5ray 4oors1 where B1A107A.12 was1 prior to settlement1 claimed .rom :243 and /0>H
564. "redit must there.ore #e 5iven .or any sums received #y 48' or 8r 8ackay .rom
the pro.essional team in relation to those and other more minor de.ects which were jointly
alle5ed. 0o .ar as the law is concerned1 the startin5 point is as set out in para5raph 7,55 o.
Fo.7ett on Co'<ro'&.e )7
th
edition+ namely that:
JPin a case where a claimant has concurrent claims a5ainst more than one de.endant1
the whole amount recovered under a settlement with one must #e #rou5ht into account
in any claim a5ainst anotherI.
Durther1 even i. it is thou5ht appropriate in any case to seek to apportion an amount received
in settlement #etween the various claims advanced #y a claimant1 as Fo.7ett states at
para5raph 7,57:
JPthe onus is on the claimant to put .orward material in support o. the apportionment
.or which he contends. 0ee *ownsend v 0tone *oms < ;artners )16A4+ 27 :2- 27 "3I.
565. &ssentially1 this approach can #e justi.ied on the #asis that it is .or the party which
has settled with one de.endant1 securin5 .inancial compensation1 to prove that it has su..ered
loss in pursuin5 claims a5ainst another de.endant in respect o. claims which at least
overlapped with those pursued a5ainst the de.endant with whom the claimin5 party has
settled. >. the claimin5 party has received .inancial compensation .rom the party with which
it has settled1 it must dischar5e its #urden o. proo. to show that in e..ect it has not received
compensation .or the sel. same claims which it pursues a5ainst the remainin5 de.endant.
*here may on occasions have to #e apportionments made #y the "ourt which =may not #e
alto5ether strai5ht.orward1 al#eit that it had to #e attempted on the material availa#le )see
jud5ement o. 2ord /ustice Fliver at pa5e 41 in the Town.en) case+. Fliver 2/ went on to
say at pa5es 41,2:
J'here that party provides no material to show how apportionment should #e made
the jud5e has to do the #est he can with the material that he has. 'hat he has to do is
ascertain what the plainti.. had lost1 to what e9tent that loss had #een miti5ated was
satis.ied #y what had #een received.=
567. *he de.ects set out a#ove .orm the heart o. the issues in dispute. *hey plainly would
have .ormed a key part o. the thou5ht process o. #oth the 4esi5n *eam and 48' and 8r
8ackay in settlin5 the case. Fne would there.ore e9pect that parts o. the sum received
should or would #e allocated to those de.ects. >t is there.ore revealin5 that 48' and 8r
8ackay have provided literally no evidence at all in this re5ard to demonstrate that that
e9pectation is incorrect. *his was notwithstandin5 that the point was .la55ed up #y the
"laimant@s "ounsel in openin5. "ounsel .or 48' and 8r 8ackay did address this in
closin5 as to the principles #ut provided no assistance as to how the "ourt should 5o a#out
the e9ercise in practice1 apart .rom )politely #ut di..idently+ sayin5 that Jit is a di..icult jo#1
and as 2ord /ustice Fliver made plain1 itQs a jo# that un.ortunately it seems the jud5e does
have to shoulderI. "ounsel .or the "laimant said in closin5 that the 0chedule to the
settlement a5reement was Jsel.,servin5 to an amusin5 e9tentI in seekin51 Jto allocate the
sums received away .rom the major de.ects alle5ed a5ainst #oth '2" and the pro.essional
team and towards lesser de.ects claimed a5ainst the pro.essional team alone.I
567. >nso.ar as 48' and 8r 8ackay do seek to rely simply upon that 0chedule1 such
reliance is misplaced:
)a+ *hat schedule is somewhat hard to #elieve1 5iven the central importance o. the de.ects
alle5ed a5ainst all the parties includin5 '2"1 and the "ourt would clearly need to
have clear and compellin5 evidence to #e5in to #elieve that that was truly the #asis
o. the settlement.

)#+ (owever1 without any evidence as to the motivation .or and accuracy o. that 0chedule1
particularly without any evidence that it was intended to re.lect any o. 48' or 8r
8ackay@s 5enuine or considered views o. how the sums should #e allocated1 it is
literally useless. *here is no supportin5 evidence that the de.ects claims a5ainst
which the allocations were nominally made had any prospect o. success. ;ut another
way1 8r 8ackay was not prepared to pro..er any evidence under oath that it
represented his or anyone else@s 5enuine views a#out apportionment.

)c+ *he relevant ?uestion is not: how would the 4e.endant like to allocate the 0ettlement
moniesW *he ri5ht ?uestion is: what on a #alance o. pro#a#ilities in .act is a proper
allocation o. the sums paid overW 48' and 8r 8ackay could seek to demonstrate
this #y 5ivin5 disclosure a#out1 and e9planation o.1 the ne5otiations and advice
which led to the 0ettlement 35reement. *hey have chosen not to. Fn a #alance o.
pro#a#ilities the most likely JdriverI o. the settlement sums paid were the JcoreI
alle5ed de.ects which .orm the heart o. the case )a#out which the "ourt has heard
e9tensive evidence+1 and there.ore one must allocate the settlement monies to those
de.ects accordin5ly.
56A. *here is no su55estion that overall the settlement was other than sensi#le and made
in 5ood .aith #ut the "ourt has no evidence that the apportionment was made in 5ood .aithH
it could #e said le5itimately that there is no evidence that it was made in #ad .aith. (owever1
apart .rom the 5eneral allocations to costs and delay1 > can attach little or no wei5ht to the
remainder o. the allocation partly #ecause > have .ormed such an un.avoura#le impression
o. 8r 8ackay. >t is clear that his pursuit o. '2" has #ecome intensely personalH .or
instance1 > have some re5ard .or his e,mails to 8r (owie )see a#ove+ and remarks like:
J8y middle name is relentless. > have the money and an5er at this point to push on and
make sure that you have to deliver or 5et punished .or not deliverin5I.
566. > have no di..iculty in acceptin5 that the allocation o. BA751213.50 to costs was
sensi#le and reasona#le #ecause the costs to 48' and 8r 8ackay o. #rin5in5 in .our
parties and the massive amount o. work which must have #een done in relation to those
third,party proceedin5s would justi.y such an allocation1 particularly in circumstances in
which > have evidence .rom 8r 8ackay that he has e9pended over B7 million on the costs
o. this case. > can accept also an allocation o. B3001000 to delay related loss and e9pense
was a reasona#le allocation #ecause there was and is clear evidence that some o. the delays
were attri#uta#le to )at least+ properly ar5ua#le matters o. complaint a5ainst1 particularly1
:2431 /0> and &?uation.
700. *hat however leaves B72417A7.50 out o. the whole settlement sum attri#uta#le to
de.ects a#out which 8r 8ackay and 48' have simply attri#uted no evidence .rom which
one can in.er that it is all attri#uta#le1 coincidentally1 to other de.ects. Dor instance1 the
0ettlement 35reement attri#utes B2071000 to some 10 electrical de.ects #ut > have no
evidence .or instance that &?uation or ":; or anyone else were responsi#le1 ar5ua#ly or at
all1 .or any o. these de.ects. >t can #e seen that these de.ects were pursued a5ainst one or
more o. the third parties #ut one can see no hint or su55estion that any o. the third parties
accepted that they were or even that mi5ht #e lia#le .or them. 'hat the "ourt actually has is
a su#stantial amount o. evidence relatin5 to the de.ects pursued as a5ainst '2". Dor
instance1 in relation to 3:'1 the "ourt can .orm a view that there was an ar5ua#le case
a5ainst :243 or /0> that they should have advised 48' or 8r and 8rs 8ackay that the
wood which they had selected had a very real propensity to .ade and chan5e colour when
e9posed to li5ht and there.ore that the settlement would have made some allowance )al#eit
without admission o. lia#ility+ .or the potential lia#ility. *he conse?uence1 consistent with
the law as set out in Fo.7ett on Co'<ro'&.e )7
th
edition+ set out a#ove1 is that:
)a+ *he "ourt must apply the whole o. the settlement sum a5ainst any and all claims which
48' had1 prior to the 0ettlement1 made concurrently a5ainst any o. the pro.essional
team and '2"

)#+ 3s a result1 inso.ar as the "ourt takes the view that '2" would otherwise #e lia#le or is
lia#le to 48' and 8r 8ackay in respect o. the .ollowin5 elements o. the claim1 it
can recover dama5es .rom '2" only inso.ar as those dama5es e9ceed the
B72417A7.50 received .rom the pro.essional team1 namely 3:'1 &9ternal /oinery1
the 2i5ht 'all1 the "ourtyard 0lidin5 doors and the 0tin5ray 4oors..

Me61%n&6%$ %n) E$e6tr&6%$ Defe6t.
701. Fn 4ay 12 o. the trial whilst the mechanical and e9pert witnesses were en5a5ed in
5ivin5 evidence simultaneously1 the parties settled the mechanical and electrical de.ects
counterclaim .or B351000 to #e paid or allowed #y '2"1 without admission o. lia#ility. *his
was sensi#le and re.lected a very su#stantial drop in this part o. the counterclaim. *here has
#een no su55estion that this partial settlement was to #e su#ject to any ar5ument relatin5 to
the settlement #etween 48' and the third parties.
702. 3part .rom the 3:'1 2i5ht 'all and "ourtyard 0lidin5 4oors ).or which see
a#ove+1 the only other de.ects le.t in issue are &9ternal /oinery1 ;arty 'all 'aterproo.in51
Cround Dloor &ntrance (all1 0tin5ray 4oors #ronKe claddin51 :athroom 5rout1 2ac?uer
Dinish Euality and Dailed -oo. 8em#rane. "ounsel produced on the last day o. the trial an
a5reed document listin5 these de.ects. > will deal with each o. these in turn.
#%rt0 !%$$ !%ter<roof&n/
703. *his alle5ed de.ect relates to some historical past water dama5e .ound in the sta..
#edroom in the #asement. !either e9pert .ound any continuin5 dampness and neither e9pert
has identi.ied any particular .ault other than there is some ripplin5 o. the sur.ace .inishes
over a#out 1 mZ. *he wall in ?uestion is a party wall #etween Gnits " and :. >n the a#sence
o. any clear evidence that '2" .ailed to do what it should have done or did somethin5
which it should not have done1 > am not satis.ied that1 on the #alance o. pro#a#ilities1 48'
has proved its case on this. *he alle5ation is not put .orward on a res ipsa lo*uitur #asis.
0uch dama5e as there is is not inconsistent with there #ein5 some water spilla5e or
dischar5e on the Gnit : side or their #ein5 some desi5n de.iciency on the Gnit : side which
permitted the in.low o. some dampH neither o. these would #e the responsi#ility o. '2".
Entr%n6e H%$$ Roof *!%ter #enetr%t&on,
704. *he 3rchitectural e9perts have a5reed in their joint statement that there is water
stainin5 o. the plaster in the 5round .loor entrance hall occurrin5 at the junction #etween the
outer wall and roo. construction1 such stainin5 havin5 increased over time. *hey a5ree
.ollowin5 an inspection o. the roo. over the stained area =that the cause may #e related to a
.ault in the roo. coverin5 around a rain water outlet located immediately a#ove the area
where the stainin5 .irst occurredH wetness e9ists under the roo.in5 mem#rane .or a distance
away .rom the outletI #ut there was no =immediately o#vious water penetration point=. *hey
o#served =that numerous dia5onal cuts to the sur.ace o. the mem#rane had #een made where
it dresses up onto the roo. li5ht skirtin5s and perimeter up standsI1 5oin5 on to say that it
was unknown whether any o. these cuts penetrated the roo. mem#rane #ut statin5 =that these
cuts should not have #een made=. *hey noted that the sin5le layer polymeric roo. .inish was
not .ully #onded to its su#strate #ut could not ascertain the cause. 8r (owie su55ested that
the cuts could have #een made #y a contractor directly employed #y 48' or 8r 8ackay to
install ultraviolet li5ht .ilm on the windows and the roo. li5hts in the area a.ter ;ractical
"ompletion )and #e.ore the leak was noticed in 2006+. *here is some evidence that the roo.
was completed and si5ned o.. #y :243 in 4ecem#er 2007 and there is no evidence o.
leakin5 prior to ;ractical "ompletion )none #ein5 noted in the sna55in5 lists issued #e.ore+.
Fver B51000 is claimed whilst relevant remedial works are costed at just under B21000 #y
'2"@s e9perts.
705. *he 3rchitectural e9perts are #oth uncertain a#out the cause o. the leak and
primarily due to cost have not opened up the roo.. >t is sli5htly surprisin5 that a.ter three
years 8r and 8rs 8ackay have not had the de.ect repairedH i. they had done1 the area would
have #een opened up and the cause o. leakin5 could have #een ascertained. 8r /osey
su55ests that #ecause he has seen no desi5n .or it and #ecause the .ailure is con.ined to a
sin5le location the pro#a#ility is that the roo. coverin5 had not #een constructed properly in
the localised area.
707. >n the li5ht o. the 3rchitectural e9perts@ joint statement1 > am not satis.ied on a
#alance o. pro#a#ilities that the cause o. the leaka5e has #een #ad workmanship. 'hilst >
accept that it is a plausi#le e9planation1 an e?ually plausi#le e9planation is dama5e caused
#y directly employed contractors1 this latter e9planation #ein5 supported #y the timin5 o. the
.irst leaka5e. *he pro#a#ilities #ein5 even1 48' has not proved its case. >. > had decided
that there was #ad workmanship1 > would have .i9ed dama5es at the level put .orward #y
'2"@s e9perts1 namely in the re5ion o. B11A00.
T1&r) F$oor L%n)&n/ *!%ter #enetr%t&on,
707. *he 3rchitectural e9perts@ joint statement identi.ies that there is water stainin5 to the
dry linin5 #elow the roo. li5hts and that two points o. water in5ress had #een o#served #y
8r /osey. (owever1 the source o. the water penetration is unknown as =neither e9pert has
had access to the roo.= #ut consider Jthe matter to #e the result o. a local a#erration in the
upstand .lashin5 assem#ly around the #ase o. the roo. li5ht.= 8r /osey in his .irst report
su55ests that .or similar reasons to those advanced in relation to the &ntrance (all roo. =it
would appear that the leaks are related to localised .aults in workmanship=. 35ain1 no
remedial work has #een done. 8r (owie 5ave unchallen5ed evidence that the roo.in5 works
were si5ned o.. in 2007 and it appears that the leaka5e1 such as it is1 has occurred well a.ter
;ractical "ompletion.
70A. >n the a#sence o. evidence that points on #alance in .avour o. there #ein5 causative
#ad workmanship and in the a#sence o. any e..ective inspection1 > am not satis.ied that this
complaint has #een proved on a #alance o. pro#a#ilities. >. > had decided that there was
lia#ility > would have .i9ed dama5es at around B2000 to re.lect the lesser remedial works1
involvin5 resealin51 promul5ated #y '2"@s e9perts.
E;tern%$ Jo&ner0
706. *he de.ects alle5ed relate to the lockin5 mechanisms to the tall Drench windows and
doors to the 4rawin5 -oom and the Mitchen/Damily -oom on the 5round .loor. >n the
4rawin5 -oom doors and .rames were linked around a curved #ay incorporatin5 a series o.
pairs o. inward openin5 Drench windows1 with the .rame #ein5 partially curved or .acetted.
>n the other room there were .ive pairs o. doors set #etween masonry piers with .our
openin5 onto #alconies and one providin5 access to a 5lass #rid5e leadin5 to the 5arden. *he
pro#lem1 simply stated1 as the e9perts a5ree1 is that the =lockin5 mechanisms to the Drench
windows do not easily en5a5e=H these mechanisms were e..ectively concealed within the
vertical tim#er stiles. *he e9perts a5ree that this =is a conse?uence o. the hei5ht o. the
doors=. *hey 5o on to say in their joint statement that the =windows .le9 more than windows
o. a more conventional hei5ht would do and this is likely to adversely a..ect the lockin5
mechanism and also the e..ectiveness o. their drau5ht seals= and to =remedy this1 the
windows would need to #e o. a di..erent desi5n1 siKe1 appearance and/or operation=.
710. *hese Drench windows and doors were provided #y 'allis /oinery as a su#,
contractor o. '2". *he issues in relation to this de.ect revolve around whether or not )and
i. so to what e9tent+ '2" had any responsi#ility .or the desi5n. Drom various drawin5s
produced #y 'allis /oinery it is clear that these doors were very tall )a#out 3.5 m in hei5ht+
and the wooden stiles into which the lockin5 mechanism was to sit well narrow #ein5 just
over 3 inches wide.
711. *he e9ternal joinery to the property .ell within the work packa5e ';,140 T
O'indows@. *he su#,contract order .or the e9ternal joinery to the property was placed #y
'2" with 'allis /oinery. *he C<* :uyin5 < ;rocurement -eport .or 0u#,"ontractors1
dated 17 0eptem#er 2005 identi.ied1 out o. a list o. potential su#,contractors .or the
packa5e1 'allis as the chosen su#,contractor. >n the ta#le1 listed under O"4; 0tatus@ is
J4esi5n development and development o. .i9in5s . Fn 22 4ecem#er 20041 :243 issued
3>026 .or ';,140 .or '2" to enter into a contract with 'allis to Jsupply and .itI e9ternal
tim#er windows in the sum o. B3411676.61. 8r 8c8orrow@s letter to C<* o. 13 8ay 2005
contained the .ollowin5:
J'e con.irm that it is our re?uirement that 4esi5n "o,Frdination and ;ro.essional
>ndemnity >nsurance #e instructed in addition to and speci.ically due to the instructions
already received to appoint the .ollowin5 su#,contractors:
P3> 026 , 'allis /oinery $'indows%P
'e are currently evaluatin5 the cost o. the necessary 4esi5n "o,ordination .unction
#oth in respect o. the a#ove packa5es and .uture re?uirements indicated in the
procurement reportPI
712. '2"@s su#,contract order .or the e9ternal joinery was placed with 'allis on 27
/anuary 2005. *he 0u#,"ontract Frder makes clear that the 0u#,"ontract ;re,Frder
35reement and the terms and conditions listed therein were incorporated within the su#,
contract order. *he 0u#,"ontract ;re,Frder 35reement includes at >tem 26:
J4&0>C!
4esi5n &lement , 4evelopment o. desi5nI
*he su#,contract was dated 27 /anuary 2005.
713. 2ater1 !:0 0peci.ication V10 .or ;urpose 8ade /oinery was issued .or tender on 12
8ay 2005 #ut this related to the joinery which was to #e provided #y 3dams under a
di..erent packa5e. >t included the .ollowin5 para5raphs relatin5 to J "ompletin5 the
desi5n/detailin5 and provide complete .a#rication/installation drawin5s1 .ull,siKed rods/shop
drawin5s as appropriate .or approval #y the 3rchitectI and JDully detailed and co,ordinated
drawin5s .or every aspect o. the works within an area in which he is providin5 joinery and
not just the joinery itsel.PI Durther1 :243@s !:0 0peci.ication 210 )'indows+ -ev 3
dated 25 8ay 2005 contained provisions .or the supplier J"ompletin5 the 4esi5n and
4etailin5 o. the 'orks and $providin5% complete .a#rication/installation drawin5s1 .ull siKe
rod/shop drawin5s as appropriate .or approval #y the 3rchitectPI. *his also provided that
the su#,contractor should JincorporateP2ockin5 method )Drench doors/doors+: 3pproved
recessed espa5nolette type with minimum 3 point lockin5 .acility in solid #rassPI
(owever1 these speci.ications post,date the instruction to and relatin5 to 'allis /oinery and
were not apparently either incorporated or re?uired to #e incorporated.
714. *here is a#solutely no evidence that 48' or :243 on its #ehal. ever re?uired or
instructed '2" to assume the "4; responsi#ility. *here is no estoppel pleaded where#y
'2" is to #e treated as i. it had accepted contractually desi5n responsi#ility. Dor
compara#le reasons to those e9pressed a#ove relatin5 to the 2i5ht 'all1 3:' and the
"ourtyard 0lidin5 4oors1 '2" had no desi5n responsi#ility .or the e9ternal joinery
includin5 these Drench windows and doors.
715. *he pro#lem with these windows and doors is and was clearly a desi5n pro#lem.
&ssentially that pro#lem was the .act the construction is so tall yet so slender that it is )at
#est+ hi5hly unlikely that the lockin5 mechanisms housed within the stiles will en5a5e easily
and e..ectively #ecause the construction will tend to .le9. *his propensity to .le9 has also
reduced the e..ectiveness o. the drau5ht seals and partly opened them up1 as > was shown on
my visit to the site. 3s '2" is not responsi#le .or desi5n1 which includes inherent
unsuita#ility1 '2" is not lia#le.
717. >n so .ar as remedial works are concerned1 > pre.er the evidence o. 8r Vom#ory,
8oldovan1 contrary to the case advanced #y 48'1 to the e..ect that the e9ternal joinery is
not so de.ective that it re?uires replacement. &asin5 and adjustin51 applyin5 new drau5ht
strippin5 and .ittin5 alternative espa5nolettes1 pre.era#ly sur.ace mounted would #e a
proportionate and sensi#le solution1 the costs which would have #een just over B310001
particularly since the 8ackays have lived with the Drench doors and windows .or nearly 4
years now. >. dama5es were due1 > would assess them at B31000.
717. *here would #e no dama5es in any event #ecause the settlement #etween 48' and
the third parties has e..ectively compensated it .or this de.ect. >n any event1 the
apportionment attached to the settlement a5reement allows the .ull sum claimed .or the
de.ective e9ternal joineryH it there.ore .ollows that even i. > was wron5 on my application o.
the relevant principles1 48' itsel. apportioned the .ull amount within the settlement .or
this de.ect.
!%$$ Gro5t Cr5'2$&n/ &n B%t1roo'.
71A. *he &9perts descri#e this as a =very minor matter re?uirin5 local rakin5 out o. 5rout
and re,5routin5 to remedy=. *he claim is that some B771. *he main issue seems to #e
whether the 5routin5 was actually done #y '2" or its su#,contractor. 8r (owie 5ave
unchallen5ed evidence that the 5routin5 pro#lem occurred in an area in which they directly
employed contractor1 Eu#e1 was responsi#le. 48' has1 simply1 not proved its case that the
de.ective 5routin5 was in work actually done #y '2".
L%6F5er #%&nt F&n&.1
716. *his alle5ed de.ect relates to doors in the Cround Dloor "loak -oom said to #e
poorly .inished =#ein5 shiny in some places and matt,like in others= )as 8r /osey+ has put it.
*his is another small claim .or a#out B771. 3ll that 8r Vom#ory,8oldovan was a#le to .ind
was that there was no de.ect in the lac?uer application #ut that there were some matted areas
where some a55ressive cleanin5 appears to have #een done. > accept his evidence and am o.
the view that 48' has a5ain1 simply1 .ailed to prove its case on the #alance o. pro#a#ility
that there was any de.ect .or which '2" was responsi#le. *here is no evidence .or instance
that '2" did the a55ressive cleanin5.
F%&$e) Roof Me'2r%ne
720. *he 3rchitectural e9perts a5ree that the =roo. mem#rane at the #ase o. the mansard
roo. at level 3 is de.ective in that it has an open unsealed seam o#served #yI 8r /osey. /ust
over B11000 is claimed. *hree possi#ilities are raised as to why this is the case1 planned or
careless incompleteness or sa#ota5e. > can rule out sa#ota5e as #ein5 unlikely. Fn #alance1 >
consider that this complaint is made out on the #alance o. pro#a#ilities and > .ind that this
minor piece o. incomplete work was le.t carelessly #y the roo.in5 su#,contractor and not
initially picked up #y anyone. *he e9perts a5ree on the appropriate level o. remedial work
and > will allow the .ull amount claimed1 B110501 as this .i5ure is more than supported #y the
?uantum e9perts.
Con6$5.&on on Ot1er Defe6t.
721. 48' is entitled to B11050 in respect o. the immediately precedin5 matter and
B351000 .or the 8echanical and &lectrical de.ects1 totallin5 B371050. *here was also a claim
.or 48' de.ects investi5ation costsH in the li5ht o. my .indin5s1 the .act that the B351000
.i5ure was an all inclusive .i5ure and the B11050 .i5ure was #oth minimal and attracted no
material investi5ation )save as part o. 48'@s le5al costs+1 this claim .ails.
Ot1er Q5%nt5'
722. >t is necessary only to deal with those matters which remain in issue: 0tatic 0ecurity1
the 4oppler 2i.t deposit1 the /oinery >tem in the Dit Fut 'orks1 =Gninstructed= 'ork and
;ercenta5e 3djustments. > will deal with each o. these in turn.
St%t&6 Se65r&t0
723. *his item relates in e..ect to security 5uards #ein5 provided at the site .rom 17
De#ruary 2007 to 14 3u5ust 200A. *he issues 5o to two points1 the .irst #ein5 the duration o.
any e9tension o. time #eyond 17 De#ruary 2007 which this "ourt decides was due and the
second relatin5 to the apportionment o. the char5e .or 0tatic 0ecurity as #etween Gnits 31 :
and ". *here is no issue as to the weekly rates to #e applied.
724. :y this jud5ement1 it has #een .ound that '2" is entitled to an e9tension o. time up
to 7 /uly 200A. >t is also clear that '2" was re?uired #y the 3rchitect .rom time to time to
secure and maintain the site usin5 static security arran5ements up until at least the certi.ied
date .or ;ractical "ompletion.
725. '2" has apportioned its static security costs at a rate o. 33L per ;lot until 27
3u5ust 20071 50L each to ;lots : and " .rom 27 3u5ust 2007 to 30 0eptem#er 2007 and
100L to ;lot " .rom 1 Fcto#er 2007 to mid,3u5ust 200A. ;lot 3 was certi.ied as practically
complete on 2 De#ruary 2007 and ;lot : on 2A 0eptem#er 2007.
727. 48' points out that in 3u5ust 20071 the .irst two .loors o. Gnit 3 were 5utted #y
.ire1 and the owners o. that Gnit 3 did not take possession until the same day as the 8ackays
moved into Gnit ". Durther it asserts that the owners o. Gnit : did not move in until a.ter 22
Fcto#er 2007 and that e9ternal works at all material times continued to all three plots. 0o it
su55ests that1 in these circumstances1 all 3 plots #ene.itted .rom '2"@s static security until
the end o. the project or that1 at the very least1 all Gnits took the #ene.it thereo. until the end
o. Fcto#er 2007 and at all material times therea.ter1 the owner o. Gnit 3 shared in the
#ene.it o. that security. >ts "ounsel ar5ues that an appropriate apportionment is one third to
each Gnit.
727. >n my jud5ement1 '2" was re?uired to provide 0tatic 0ecurity to and .or #ene.it o.
Gnit " .rom well #e.ore 17 De#ruary 2007 until just a.ter the certi.ied date o. ;ractical
"ompletion. *here really can #e no criticism o. the apportionment o. one third each up until
27 3u5ust 2007H indeed1 there would have #een a 5ood ar5ua#le case .or it #ein5
apportioned on a 50/50 #asis 5iven that ;lot 3 had #een certi.ied as practically complete in
early De#ruary 2007. 3n apportionment o. 50/50 #etween Gnits : and " up to 30 0eptem#er
2007 is wholly reasona#le and sensi#le and an allocation o. 100L to Gnit " therea.ter
re.lects the .act that it was the only Gnit which was not practically complete. *he lo5ic was
and is that the "ontractor is responsi#le .or security up until practical completion and1
therea.ter the owner or owners are le.t with that responsi#ility. *he .act that coincidentally
the owners o. Gnits 3 and : may have had the advanta5e o. the presence at one end o. the
overall site )actually on the Gnit " part o. the site+ is neither here nor there. >t may #e that
potential intruders to Gnits 3 or : mi5ht have #een put o.. #y the presence o. security
5uards on Gnit ". >t needs also to #e #orne in mind that 48' was the employer in respect
o. the other two Gnits. >t is ar5ued that a.ter 7 /uly 200A1 the date when the 'orks to Gnit "
were practically complete )as > have .ound+1 the 0tatic 0ecurity should #e apportioned
e?ually as #etween the three Gnits. > disa5ree #ecause the reason that the 0tatic 0ecurity was
maintained was #ecause 48'@s new 3rchitect1 !avi5ant1 wron5ly withheld the ;ractical
"ompletion "erti.icate until 14 3u5ust 200AH put another way1 it was #ein5 maintained only
#ecause Gnit " was not certi.ied as practically completed and i. ;ractical "ompletion had
#een certi.ied on 7 /uly 200A1 the 0tatic 0ecurity re?uirement would have #een needed.
72A. *he whole claim is supported #y paid invoices .rom 0overei5n Cuards. >t is wholly
allowa#le to '2". *he claim1 as a5reed1 also includes within the total sum o. B714A2.50
which is admitted to #e due in relation to static security provided up to 1A De#ruary 2007.
T1e Do<<$er L&ft De<o.&t
726. *he amount in the issue here is B761412.33 and there is no issue that this relates to
the deposit which '2" had to and did pay .ollowin5 a speci.ic 3rchitect@s >nstruction
)3>032+ directin5 it to enter into a su# contract with 4oppler 2i.ts. *he deposit havin5 #een
paid1 #ut #e.ore 4oppler 2i.ts 5ot into .inancial trou#les1 eventually 5oin5 into li?uidation1
and #e.ore it did any or much work on the project1 let alone deliverin5 anythin5 to the site1
this work was omitted #y 3rchitect@s >nstruction and the li.t works were placed with a new
contract are directly employed #y 48'.
730. 48'@s "ounsel without any ampli.ication simply adopt what 8r ;ontin says in his
.irst report in which he simply re.ers to a =side a5reement= and hints that #y reason o. this
the unrecovered deposit may remain irrecovera#le. *hat side a5reement was recorded in a
letter dated 7 /une 2007 .rom 48'@s then solicitor1 8anches1 and si5ned #y '2"@s then
solicitor. *he letter itsel. re.ers to issues havin5 arisen #etween 48' and '2"1 with
48' #elievin5 that '2" and 4oppler Jare in repudiatory #reach o. their contractsI and
'2" considerin5 that J4oppler is willin5 and a#le to per.orm its su#,contract #ut has #een
prevented #y a lack o. instructions .rom the 3rchitect=. *wo relevant clauses were a5reed:,
J4. 'ithout prejudice to the issues #etween the parties as to whether or not 4oppler was
per.ormin5 its su#contract1 it has #een a5reed:,
)1+ that 'alter 2illy will accept an instruction .rom the 3rchitect to omit the li.t packa5e
.rom its 'orkH
)2+ that the &mployer will en5a5e another li.t contractor1 Fdyssey Class 2td and
"reative 2i.ts 2td as contractors directly employed #y the &mployerH
)3+ 'ater 2illy will cooperate with Fdyssey Class 2td and "reative 2td in the
installation is o. the li.t on the siteP
7. ;endin5 resolution o. the issues #etween the parties1 the parties a5ree that each will
assist in miti5atin5 any additional costs claimed #y 4oppler and/or in recoverin5 any
overpayments to 4opplerI
731. 8r ;ontin ar5ues1 althou5h this may not #e a matter .or a ?uantity surveyor e9pert1
that the =issues have not #een resolved and the deposit has not #een recovered #y the
"laimant .rom 4oppler. 8anches@ letter however does not record what was to occur in such
circumstancesI.
732. *here can #e no dou#t that under the underlyin5 "ontract #etween the parties '2"
was entitled to #e paid #y 48' .or sums properly paid #y it to 4oppler. *he instruction
.rom :243 re?uired '2" to place an order with 4oppler on the #asis o. the tender
recommendation. *here is no su55estion #y 48' or 8r ;ontin that the deposit paid to
4oppler was paid anythin5 other than pursuant to this instruction. Gnder the "lause 13.4
provisions .or payment .or the e9penditure o. provisional sums )and the instruction did call
.or the e9penditure o. a provisional sum item+1 the sum paid #y way o. deposit #y '2" to
4oppler was paya#le and should have #een certi.ied .or payment.
733. *he 8anches@ a5reement did not .inally or ultimately e9clude '2"@s entitlement to
payment. *his was a workin5 solution which ena#led 48' throu5h its 3rchitect with
impunity to omit the 4oppler work and ena#le this 48' to employ other li.t contractors
directly. *he =issues= re.erred to in "lause 7 were those re.erred to in "lause 41 as to
whether or not 4oppler had per.ormed its su#,contract. *he wordin5 o. "lause 7 is not
e9pressed in terms o. e9clusion or limitation o. entitlement and should not #e construed as
such. !o evidence let alone ar5ument has #een pro..ered #y 48' that 4oppler did not
per.orm its su#,contract or that '2" did not assist =in miti5atin5 any additional costs
claimed #y 4oppler and/or in recoverin5 any over,payments to 4opplerIH it has not even
#een su55ested that the payment o. the deposit #y '2" was an over,payment. >n any event1
in these proceedin5s any issues #etween '2" and 48' have #een resolved #ecause it
would #e .or 48' to prove either that '2" had not assisted in Jmiti5atin5I or
Jrecoverin5I or that there was some loss .lowin5 to 48' as a result o. any .ailure to assist
all that there was some .ailure on the part o. 4oppler to per.orm its su#,contract. !one o.
these thin5s has #een proved or esta#lished.
734. *he reality is1 that so .ar as the "ourt can assess1 it is common 5round that the
particular 4oppler company eventually went into li?uidation and the prospect o. '2" ever
recoverin5 the deposit paid #y it is ne5li5i#le.
735. >t there.ore .ollows that '2" is entitled to .ull payment in respect o. this deposit.
F&t(O5t !or7.
737. *here had #een numerous items in issue in relation to alle5ed overpayments on these
works #ut the ?uantum e9perts sensi#ly reduced the matter in issue initially to B3A1000 and
#y the end o. the trial only one item remains in issue1 all others havin5 #een concededH this
whether and i. so to what e9tent there should #e a reduction o. B171665 in relation to the
packa5e .or doors and .rames. *here is no issue that C<* valued this item at B27212A7 and1
now1 48' and 8r ;ontin su55est that it should #e reduced #y B171665. *he e9perts put an
a5reed comment into their .irst joint statement which was: JC<* to e9plain reduction v45
and v47I. *his is re.lected what had actually happened which was that C<* valued the
doors and .rames at the hi5her .i5ure in Naluation 45 #ut then reduced it #y B171665 in their
Naluation 47.
737. *his reduction #etween the two valuations clearly arose #ecause Mnowles1 .or
reasons known only to itsel.1 instructed C<* in Fcto#er 2007 to take out .rom their
previous valuation the sum representin5 3dams /oinery@s preliminaries in the post,17
De#ruary 2007 period. Dor no 5ood reason and without an o#vious1 reasoned or justi.ied
departure .rom normal and independent ?uantity surveyin5 practice and1 contrary to their
own inclination1 C<* did reduce their valuation accordin5ly. >t was in any event simply
wron5 as a matter o. contract .or this reduction to have #een made #ecause it is inevita#le
that su#,contractors instructed pursuant to provisional sum items will have their own
preliminary costs1 irrespective o. whether the main contractor is in delayH those preliminary
costs are paya#le to the main contractor ).or onward transmission to the su#,contractor+
simply #ecause the preliminary costs o. the su#,contractor are part o. its price .or carryin5
out the su#,contract works in ?uestion. *he provisional sum payment provisions in this case
e..ectively re?uire 48' to pay and the 3rchitect to certi.y sums properly due to the su#,
contractor in ?uestion.
73A. >t was conceded1 at least #y 8r ;ontin that1 i. e9tensions o. time were due to cover
the period durin5 which 3dams /oinery was on site as a su#,contractor to '2"1 the sum
should #e reinstated. 3s > have .ound that e9tensions are due well into 200A and #ecause
3dams /oinery had concluded their work #e.ore then1 there is no conceiva#le justi.ication
.or a reduction in the value o. the .it,out works. *he correct .i5ure .or .it out works is
there.ore B415641676.A51 as accepted #y 8r (unter..
GUn&n.tr56te) !or7H
736. >nitially1 48' sou5ht to reduce the account #y nearly B2501000 in relation to some
277 items o. work on the #asis that1 althou5h the work in ?uestion had #een done1 there was
said to #e no evidence that it had #een instructed. *he ?uantum e9perts have #een a#le to
reduce the amount in issue to some B761000 relatin5 only to 31 items. Fne starts .rom the
.act that the total sum in issue was included in valuations carried out #y C<*1 who seemed
to #e one o. the .ew pro.essionals retained #y 48' who have not #een sued #y itH indeed
8r 'hid#ourne and 8r "ane o. that .irm were called as witnesses #y 48'.
740. *here are .our cate5ories o. alle5edly uninstructed work remainin5 in issue. *he .irst
is in the sum o. B1713A0.66 where e9planations have #een provided #y 8r 8c8orrow .or
'2". >t is accepted that1 i. and to the e9tent that 8r 8c8orrow@s evidence is accepted #y
the "ourt1 this proposed reduction in the account should #e rejected. 8r 8c8orrow@s
evidence in relation to the 17 items in ?uestion in this cate5ory was not seriously or
e..ectively challen5ed in cross,e9amination. 3ll that "ounsel .or 48' says in closin5 is
that his recollection =o. detail o. events that occurred #etween si9 and ei5ht years a5oP
should #e treated with caution=. "ounsel also properly accepted in closin5 that 8r
8c8orrow =5ave his evidence in a care.ul and measured way=. > also .ormed a .avoura#le
impression o. him. "onse?uently1 > accept his evidence in .ull and there should #e no
reduction.
741. "ate5ory 2 relates to 12 items totallin5 B101A75.50 which involved work which was
contained in su#,contractor accounts which were a5reed #y C<*H indeed the items were
noted #y it as a5reed. >t is very di..icult a.ter many years when issues like this are raised
#elatedly #y a de.endant .or a contractor to provide detailed evidence to show each and
every item was approved and instructed. >n any case like this1 there is ample 5eneral
evidence that :2431 &?uation and /anine 0tone had a su#stantial amount o. direct contact
with su#,contractors and were tellin5 them to do various thin5s1 which the su#contractors
then didH a 5ood e9ample is the 2i5ht 'all. > am satis.ied on a #alance o. pro#a#ilities that
these items o. work were instructed1 al#eit pro#a#ly in.ormallyH there would have #een no
5ood reason .or C<* honestly to a5ree them unless they had #een satis.ied that the work
had #een instructed and attracted an appropriate level o. paymentH > #ear in mind in this
conte9t that C<* was and allowed itsel. to #e put under su#stantial pressure #y Mnowles to
withhold or limit valuations and it is almost inconceiva#le that they would have a5reed
matters as due .or payment unless it was clear that they were.
742. "ate5ory 3 contains .our items totallin5 B511417.05 and essentially relates to
e9ternal windows1 plasterin5 and the stainin5 o. the veneered 3:'. *he e9perts accept in
e..ect that these items were instructed #ut lia#ility .or them is not accepted. 3ll items were
a5reed #y C<* and certi.ied .or payment. >n relation to the stainin51 > have already .ound
that this work was instructed #y 8r 8ackay and that it was essentially e9tra work #ecause it
was seekin5 to put ri5ht a pro#lem )the .adin5 o. the veneered wood+ which was not the
responsi#ility o. '2"H it .ollows that 48' is lia#le .or this and there is no issue on the
?uantum. 3s .or the plasterin5 which involved du##in5 out1 return visits and some makin5
5ood. 8r 8c8orrow has 5iven detailed e9planations which were not su#stantially
challen5edH C<* a5reed these items as le5itimate variations. >n so .ar as the #urden o. proo.
is on '2"1 it has esta#lished that this work was not only instructed #ut that it was a
variation. *he .inal item relates to e9ternal windows and involved a chan5e o. speci.ication
to allow .or e9tra coats o. .iller primer and it is evidenced #y a letter .rom '2" to :243
dated 20 Fcto#er 2005H as this was clearly a5reed to #e somethin5 .or which '2" was
entitled to payment1 there can #e little or no dou#t that this was instructed and that it was not
necessary as a result o. any de.ault on the part o. '2". *he "ate5ory three reductions are
not justi.ied.
743. *he .inal cate5ory1 which comes to B2A1611.751 relates to items where it is a5reed
that insu..icient in.ormation has #een provided to e9plain works or to identi.y an instruction
to the works1 al#eit the work has actually #een carried out on site. '2" does not throu5h its
"ounsel in closin5 take any real issue with this sum #ein5 taken out o. the account.
3ccordin5ly1 > .ind that this reduction has #een esta#lished. >n addition1 a .urther B41206.33
was a5reed #y the Euantum e9perts to #e deducta#le .or items not instructed. *here.ore a
total o. B33112110A .alls to #e deducted.
#er6ent%/e A)85.t'ent.
744. '2" claims that there should #e percenta5e adjustments to the value o. all work
done in relation to 3 items ori5inally priced within the preliminaries1 namely insurance
)0.A1L+1 =Croup sa.ety rechar5e= )0.25L+ and water consumption )0.17L+. '2" claims
B441247.37 in relation to this1 which is calculated #y 8r (unter #y re.erence to a 5ross
.i5ure said to #e due o. B761336.3A less what has #een included:
>nsurances 531001.71
Croup 0a.ety -echar5e 171452.62
'ater 71561.04
Cross addition 771045.77
2ess allowed in E0@s Naluation !o. 47 ,371604.27
>ncrease
claimed
3A1141.41
> will proceed on the #asis that these adjusted .i5ures are correct.
745. >t is necessary to look at these three potential adjustments separately. >n relation to
insurance1 the parties a5reed that in relation to insurances: =*he value related rate o. 0.A1L
would remain should the value o. the project increase #eyond B1514771000IH a reduction o.
B171500 was ne5otiated in relation to ori5inal tender price .or such insurance o. B1251373.70
)that is1 B1071A73.70+. *his was contained in '2"@s .a9 messa5e dated 23 3pril 2004 to
C<*1 e9pressly incorporated into the 8emorandum o. 35reements dated 2A 8ay 2004
#etween the parties. *his was at the sta5e when all three Gnits were to #e dealt with as one
overall contract. *he 4eed o. Nariation dated 23 4ecem#er 2004 e..ectively incorporated
this a5ain #ut #y re.erence to the recalculated "ontract 0um )B512A11674+ is .or Gnit ".
*here is no su55estion that the su#stantive meanin51 whatever it is1 was materially chan5ed
#y the 4eed o. NariationH in e..ect1 one would read in the ?uotation set out a#ove the
recalculated "ontract 0um .or Gnit ".
747. Fne there.ore needs to consider how insurances should #e valued. >t is common
5round that these insurances would necessarily cover contractors all risks and works1
amon5st others. >n my jud5ement the meanin5 o. the e9pression is clear: provided that the
value o. the "ontract did not e9ceed the "ontract 0um1 a .i9ed sum would #e paya#le in
respect o. the insurance1 that sum #ein5 calcula#le #y re.erence to the ori5inal "ontract 0um
as adjusted to re.lect the .act that the 4eed o. Nariation allocated a much lower "ontract
0um to Gnit ". (owever1 i. the JvalueI increased #eyond this adjusted "ontract 0um .or
Gnit "1 then '2" was entitled to #e paid .or the provision o. these insurances at the rate o.
0.A1L o. that =value=. *he word =value= is used as opposed to a word like =cost= or
=e9penditure. *he Jvalue o. the projectI must #e the value due to '2"H these words have
emanated .rom '2" and must #e taken to mean the adjusted "ontract 0um. *he adjusted
"ontract 0um will include not only the value o. the works carried out #y su#,contractors
pursuant to provisional sum instructions and #asic preliminaries #ut also other adjustments
to the "ontract 0um such as additional sums due .or loss and e9pense under "lause 27 and
other contractual =claim= entitlements. *he ori5inal "ontract 0um .or unit " has #een
su#stantially e9ceeded.
747. 8ovin5 on to Croup 0a.ety1 the accepted tender included within the #reakdown o.
the preliminaries an item .or =Croup 0a.ety 0.25L o. B1514771000I1 the sum o. which was
incorporated in the overall ;reliminariesH a5ain1 this provision was still applica#le .ollowin5
the 4eed o. Nariation1 al#eit scaled down to relate to the "ontract 0um speci.ically .or Gnit
". *he parties there.ore accepted the validity o. and need .or a char5e .or =Croup 0a.ety=1 it
#ein5 o#vious )and indeed not uncommon+ that the holdin5 company will make a char5e to
its su#sidiaries .or the provision o. appropriate sa.ety measures. >t there.ore #ecomes a
matter simply o. valuation i. and when the value o. the 'orks increases to apply this
percenta5e #ecause the Croup will make the char5e )as here+ a5ainst the overall value. *he
percenta5e char5e is a5ainst the overall value and1 a5ain1 as the value includes claim or
delay related loss and e9pense it should #e applied to that.
74A. *he water char5e .alls into a somewhat di..erent cate5ory. *here is an item
=*emporary 'ater )"onsumption Fnly+I a5ainst which there was a sum o. B271310.60 and it
is this sum a5ainst which the percenta5e o. 0.17L is e9trapolated. >t is there.ore di..icult to
see how a value related allocation can #e made in e..ect only on a valuation #asis. Fne can
see that there mi5ht #e a #asis o. claimin5 additional cost .or the provision o. water over an
e9tended period1 .or instance as part o. a loss and e9pense claim1 or even where the
variations needed some particular water provision which could #e #rou5ht into the
valuationH however1 this approach is eschewed #y '2". 'hereas insurance and sa.ety relate
to everythin5 which is carried out on site1 the provision o. water may not #e. 3dditionally1
there is no evidence a#out the cost o. additional water to '2"1 althou5h > have allowed a
very small amount in one o. the preliminary allowances. > there.ore consider that this part o.
the claim is not justi.ied.
746. >n conclusion1 '2" is entitled to 0.A1L and 0.25L .or insurances and .or Croup
0a.ety on the total value o. the 'orks includin5 any contractual loss and e9pense
entitlement. Fverhead and pro.it are to #e applied to the .i5ure in ?uestion. *he calculation
should #e as .ollows to take into account what has already #een allowed elsewhere .or
insurances and Croup 0a.ety:
>nsurances
Croup 0a.ety -echar5e
Cross addition
2ess allowed in E0@s Naluation !o.
47
, B321015.34R
>ncrease due RR

RB371604.27 less B51AAA.62 allowed .or previously #y the E0
RR 4oes not include overheads and pro.it )added later+
Intere.t C$%&'.
750. *here are essentially two types o. interest claim1 the .irst #ein5 a claim under the
2ate ;ayment o. "ommercial 4e#ts )>nterest+ 3ct 166A )as amended+1 the claim #ein5
B7A21755.55 and contractual interest .or late payment o. particular certi.icates )B141A4A.23+.
751. 4ealin5 with the lar5er claim .irst1 the #asic provisions o. the statute are as .ollows:
J1 )1+ >t is an implied term in a contract to which this 3ct applies that any ?uali.yin5
de#t created #y the contract carries simple interest su#ject to and in accordance with
this ;art.
)2+ >nterest carried under that implied term )in this 3ct re.erred to as J statutory
interest I+ shall #e treated1 .or the purposes o. any rule o. law or enactment )other than
this 3ct+ relatin5 to interest on de#ts1 in the same way as interest carried under an
e9press contract term.
2 )1+ *his 3ct applies to a contract .or the supply o. 5oods or services where the
purchaser and the supplier are each actin5 in the course o. a #usiness1 other than an
e9cepted contractP
4 )1+ 0tatutory interest runs in relation to a ?uali.yin5 de#t in accordance with this
section )unless section 5 applies+.
)2+ 0tatutory interest starts to run on the day a.ter the relevant day .or the de#t1 at the
rate prevailin5 under section 7 at the end o. the relevant day.
)3+ 'here the supplier and the purchaser a5ree a date .or payment o. the de#t )that is1
the day on which the de#t is to #e created #y the contract+1 that is the relevant day
unless the de#t relates to an o#li5ation to make an advance payment.
3 date so a5reed may #e a .i9ed one or may depend on the happenin5 o. an event or
the .ailure o. an event to happenP
)5+ >n any other case1 the relevant day is the last day o. the period o. 30 days
#e5innin5 with]
)a+ the day on which the o#li5ation o. the supplier to which the de#t relates is
per.ormedH or
)#+ the day on which the purchaser has notice o. the amount o. the de#t or )where that
amount is unascertained+ the sum which the supplier claims is the amount o. the de#t1
whichever is the laterP
)7+ 0tatutory interest ceases to run when the interest would cease to run i. it were
carried under an e9press contract term.
5 )1+ *his section applies where1 #y reason o. any conduct o. the supplier1 the interests
o. justice re?uire that statutory interest should #e remitted in whole or part in respect
o. a period .or which it would otherwise run in relation to a ?uali.yin5 de#t.
)2+ >. the interests o. justice re?uire that the supplier should receive no statutory
interest .or a period1 statutory interest shall not run .or that period.
)3+ >. the interests o. justice re?uire that the supplier should receive statutory interest
at a reduced rate .or a period1 statutory interest shall run at such rate as meets the
justice o. the case .or that period.
)4+ -emission o. statutory interest under this section may #e re?uired]
)a+ #y reason o. conduct at any time )whether #e.ore or a.ter the time at which the
de#t is created+H and
)#+ .or the whole period .or which statutory interest would otherwise run or .or one or
more parts o. that period.
7 )1+ *his ;art deals with the e9tent to which the parties to a contract to which this 3ct
applies may #y re.erence to contract terms oust or vary the ri5ht to statutory interest
that would otherwise apply when a ?uali.yin5 de#t created #y the contract )in this ;art
re.erred to as J the de#t I+ is not paid.
)2+ *his ;art applies to contract terms a5reed #e.ore the de#t is createdH a.ter that time
the parties are .ree to a5ree terms dealin5 with the de#t.
A )1+ 3ny contract terms are void to the e9tent that they purport to e9clude the ri5ht to
statutory interest in relation to the de#t1 unless there is a su#stantial contractual
remedy .or late payment o. the de#t.
)2+ 'here the parties a5ree a contractual remedy .or late payment o. the de#t that is a
su#stantial remedy1 statutory interest is not carried #y the de#t )unless they a5ree
otherwise+.
)3+ *he parties may not a5ree to vary the ri5ht to statutory interest in relation to the
de#t unless either the ri5ht to statutory interest as varied or the overall remedy .or late
payment o. the de#t is a su#stantial remedy.
)4+ 3ny contract terms are void to the e9tent that they purport to]
)a+ con.er a contractual ri5ht to interest that is not a su#stantial remedy .or late
payment o. the de#t1 or
)#+ vary the ri5ht to statutory interest so as to provide .or a ri5ht to statutory interest
that is not a su#stantial remedy .or late payment o. the de#t1 unless the overall remedy
.or late payment o. the de#t is a su#stantial remedy.
)5+ 0u#ject to this section1 the parties are .ree to a5ree contract terms which deal with
the conse?uences o. late payment o. the de#t.I
752. >t is clear that part o. the policy o. the statute is to encoura5e prompt payment o.
commercial de#ts which is dou#tless desira#le .or cash .low reasons in any num#er o.
#usinesses1 industries and other commercial or5anisations. *here is no issue in this case that
the statute is applica#le1 su#ject to ar5uments a#out 0ections A and 5. > do not have the
#ene.it o. any authorities which have #een cited to me and > have not o. my own initiative
#een a#le to .ind any which are o. direct relevance. > there.ore approach the issues in this
conte9t #y re.erence to the wordin5 o. the statute.
753. "lause 31.1.1.1 o. the "ontract "onditions states as .ollows:
J>. the &mployer .ails properly to pay the amount1 or any part thereo.1 due to the
"ontractor under the "onditions #y the .inal date .or its payment1 the &mployer shall
pay to the "ontractor in addition to the amount is not properly paid simple interest
thereon .or the period until such payment is made. ;ayment o. such simple interest
shall #e treated as a de#t due to the "ontractor #y the &mployer. *he rate o. interest
paya#le shall #e 5 per cent over the :ase -ate o. the :ank o. &n5land which is
current at the date the payment #y the &mployer #ecomes overdueI

*hus1 late payment o. sums due attract a si5ni.icant rate o. interest which in practice .or
most contractors )at least+ will more than compensate them .or the late payment.
754. *his contract rate is to #e compared with the statutory rate under the statute which is
:ase -ate plus ALH so the statutory rate is 3L #etter than the contract rate. > have no dou#t
that the contract rate provides a =su#stantial remedy= within the meanin5 o. 0ection A o. the
statute. 3ny =su#stantial remedy= must #e one which at least jud5ed at the date o. the
contract would provide ade?uate compensation .or late payment. 0ection A is o#viously
considerin5 at least the possi#ility that the =su#stantial remedy= will #e less than the
statutory interest remedy. 'hilst the statutory JremedyI is :ase -ate plus AL and that is a
=#etter= remedy .or the "ontractor than the contractual remedy .or late payment1 that does
not mean that the contractual remedy is not Jsu#stantialI. *he commercial reality is that
commercial lendin5 is1 dependin5 on the creditworthiness o. and security o..ered #y the
"ontractor1 likely to #e in the area o. :ase -ate plus 1 to 3L. *here.ore1 on that #asis not
only is the "ontractor likely to #e compensated .or late payment #ut also there is an
incentive provided on the &mployer to pay on time.
755. *his claim is essentially in two halves. *he .irst relates to wron5.ul deductions
totallin5 BA541567 .rom #etween De#ruary 2007 onwards. *hese deductions were .or
li?uidated dama5es .or delay ).or which '2" was1 as > have held1 not lia#le+ and .or
de.ective works such as the li.t1 plasterin51 3:' and the like )a very lar5e part o. which
'2" was not lia#le .or+. '2" and 8r (unter have put .orward dou#tless what they
consider is a simpli.ied calculation which is all #ased on :ase -ate plus AL. *hey have
taken a mid point #etween the start o. the deductions )late De#ruary 2007+ and late 3u5ust
200A when the .ull deduction was #ein5 maintained. 3lthou5h > will hear the parties i. they
can not a5ree1 the calculation can #e on a mid,point #asis1 dependin5 on what was deducted
and when1 #ut the interest should #e :ase -ate plus 5L. *here should also #e some
allowance )in .avour o. 48'+ to allow .or the .act that some o. the deductions .or
de.ective work were .rom time to time justi.ia#le1 althou5h1 unless persuaded otherwise1 >
can not see that this would e9ceed B701000 .or any period in 2007.
757. *he second hal. o. the claim is more comple9 and relates to the various delay and
disruption claimsH thus .or the preliminary thickenin5 claim #etween 8arch 2007 and
De#ruary 20071 the net claimed .i5ures are taken .rom a midpoint and1 as they all 5radually
accumulate in time1 they are taken .rom /une 2005 throu5h to 8arch 2010. >n relation to
su#,contractor claims1 nothin5 is claimed .or 3dams /oinery and 3ndrews whose claims
have not yet #een paid and interest is claimed on what was paid to !orstead in /anuary
2006. >nterest is claimed on additional overheads and pro.it recovery .rom a midpoint )17
8arch 2007 to 8arch 2010+. Fther claims includin5 additional static security 5uardin5 costs
and disputed valuation are also claimed. > have to say that > have not #een assisted #y the
evidence or the ar5ument how this hal. o. the claim should #e addressed. 48'@s "ounsel
make the 5eneral point that there can #e no entitlement to interest unless the de#t has
accrued and the de#t can not accrue until either it is claimed or in the case o. loss and
e9pense ade?uate particulars and supportin5 in.ormation had #een provided. 'hilst > am
satis.ied that the conditions precedent in "lause 27 have #een complied with1 what > can not
yet ascertain on the availa#le evidence and ar5ument is whether and when each and every
one o. these speci.ic and claims and su#,claims in the .inal .orm in which they were
presented in these proceedin5s )a+ was .irst intimated and )#+ was .irst ade?uately
particularised. > am con.ident however that su#stantial .urther sums would1 should and could
have #een certi.ied over and a#ove those which were certi.ied or included in valuationsH a
5ood e9ample o. this is the loss and e9pense attri#uta#le to the delays #eyond the date up to
which :243 5ranted e9tensions. > am also con.ident that other sums such as the static
security 5uard costs could1 should and would have #een certi.ied as 2007 and 200A went
alon5. > have invited the parties to seek to a5ree what should #e allowed up until 8arch
20101 .ailin5 which > may have to do the #est that > can and may proceed to consider
discretionary interest therea.ter until jud5ement. (owever1 althou5h '2"@s "ounsel and
e9pert have provided detailed and later amended calculations1 these have not #een a5reed
and there.ore > will de.er to a later jud5ment the .i9in5 o. what contractual and discretionary
interest should #e allowed or awarded.
757. >n relation to the .inal claim .or interest1 which 8r (unter and values at B41676.061
he has produced a detailed calculation1 #ased on the contractual rate o. interest )at 3ppendi9
3 o. his .irst report+. >t is supported #y the evidence o. 8r 8c8orrow. > accept this as > also
accept 8r (unter@s calculation.
F&n%n6&%$ S5''%r0
75A. *he total o. the sums due are set out #elow:
'2" &!*>*2&8&!* 38FG!* 322F'&4
;-&2>8>!3->&0 5671052.57
0*3*>" 0&"G->*U 1011373.75
;> "FN&- 21070.7A
0(&22 'F-M0 )inc Naluations and reinstated
de.ects and 4oppler 2i.t+
315A51752.7A
D>*,FG* 'F-M0 415641676.A5
!;F )weekend workin5+ 251056.57
>!*&-!32 0"3DDF24>!C 401A04.55
2&00 G!>!0*-G"&4 'F-M0 $331121.0A%
ADD ;&-"&!*3C& 34/G0*8&!*0 1.07L on
the a#ove and the loss and e9pense )BA16131A42.77
$total a#ove%1 Y BA701714 Y B5051002.76 ,
B321015.34+
771647.66
SUB(TOTAL A16601760.57
FN&-(&340 3!4 ;-FD>* F! 3:FN& 4.5L1
less B41571137 which '2" indicated that it would
not char5e on 0tatic 0ecurity
4001024.21
4&D&--&4 0*3-* "F0*0 71260.77
'2" ;-F2F!C3*>F!/*(>"M&!>!C A701714
0G!4-U 2F00 3!4 &X;&!0& !il
344>*>F!32 (&34 FDD>"& 3!4 ;-FD>* 2741675.12
0G:,"F!*-3"*F- 2F00 3!4 &X;&!0& 5051002.76
"23>8 ;-&;3-3*>F! "F0*0 !il
*F*32 N32G3*>F! 11103A17A7.27
2&00 F*(&- $3C-&&4% 34/G0*8&!*0% $71777.77%
C-F00 N32G3*>F! 1110321120.56
D>!3!"& "(3-C&0 )>!*&-&0*+ *o #e the su#ject o.
.urther representations or
a5reement #etween the
parties
D>!3!"& "(3-C&0 )"F!*-3"*G32
>!*&-&0*+
41676.06
0G:,*F*32 11103710A6.7A
N3* 6716A7.73
C-F00 4G& 1111351077.41
LESS )i+ ;3U8&!*0 834& A177A1370.15
)ii+ 2>EG>43*&4 4383C&0 !il
)iii+ 4&D&"*0 DF- '(>"( '2" >0 2>3:2& $371050%
*F*32 !&* 0G8 4G& *F '2" )e9clusive o. B213301777.27
contractual interest+
De6&.&on
756. *here will #e jud5ement in .avour o. '2" .or the su#stantial net sum as set out
a#ove. > will hear the parties at the handin5 down o. this jud5ment a#out ancillary matters
such as discretionary interest and costs. *hey will also need to address the remainin5
calculation o. contractual interest )see ;ara5raphs 755,7 a#ove+ and > will have to produce a
.urther jud5ment on that as well as on costs and discretionary interest.
>n accordance with the usual practice1 the parties and their le5al teams will have received on a
con.idential #asis this jud5ment in dra.t. *hat provided an opportunity to su#mit #e.ore the
handin5 down any typo5raphical1 5rammatical1 arithmetical or other o#vious errors which
may have crept in to the document. *his jud5ement is over 200 pa5es lon5 and it was at
least possi#le that > may have overlooked several issues which the parties would have liked
me to deal with over and a#ove the hundreds which > have addressedH they were invited to
in.orm me o. this #e.ore the handin5 down. 0imilarly1 i. the parties .elt that > had provided
insu..icient reasonin5 on any 5iven topic1 they were invited to in.orm me appropriately
#e.orehand. 3lthou5h the parties@ "ounsel help.ully provided me with lists o. corrections
and identi.ied a num#er o. areas which > had not addressed .ully1 those matters have now
#een addressed.