"A professional man is entitled to be lucky", and also Watts v Savill (unreported,16 June 1998 , Court of Appeal). However this submission is about causation: there is no liability because the negligence has not or would not have caused any loss or damage. "
"But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible." "(The judge) was entitled to take the view that the evidence of (the architect's experts) did not constitute evidence of a reasonable body of architects accepting as a proper practice that no warning of inflation need be given when providing an estimate of the cost of proposed works. It seems to me that the learned judge had ample evidence before him which entitled him to find that there was a failure on the part of Mr. Nye to draw the attention of the client to the fact that inflation was a factor which should be taken into account when considering the ultimate cost and that that failure constituted a breach of the Hedley Byrne type duty to the defendant. 3. The third qualification is expressed by Lloyd L.J. in Gold -v- Haringey Health Authority [1988] 1 Q.B. 481 at 490: "
" Nye Saunders , despite the concession that it was governed by the Bolam test, was manifestly an exercise in standard-setting by the court itself and should be so regarded". "
"Clearly, if there is some practice in a profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage, evidence of that can and ought to be received. But evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks that he would have done had he been placed, hypothetically and without the benefit of hindsight, in the position of the defendant, is of little assistance to the court…"
"No matter what profession it may be, the common law does not impose on those who practice it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made."
"The extent of land to be made available to TW was clear, as the Plot was a self contained unit, clearly defined by boundary fencing separating it from the garden centre and adjacent property. During the visit I emphasised to TW's representatives that the Plot was for offices and car parking only."
"This restriction of use, I understood from Mr King, resulted from CFM's desire to ensure that the land was not used for any purpose which interfered with its business. Thus, it would not have been acceptable for this area of land to be used for storing materials which would have resulted in noise or excessive traffic on the site. Likewise it would not have been acceptable for the canteen to have been located in this area, because of the potential disturbance caused by site workers (up to 300 people at the peak) using this canteen throughout the day. …. I also informed them of CFM's access requirements." "
"7. Information to be Supplied to the Consulting Engineer (I return to consider the meaning of these provisions.) Clause 5.4 of the JCT conditions "
"The purpose for which the co-ordination drawings were required was to enable the contractor to carry out the M&E works in accordance with his contract, and in particular to prepare his installation drawings, and the temporal requirements on AA must serve that purpose. AA was therefore obliged to use reasonable skill, care and diligence to ensure that the co-ordination drawings were provided in time to enable the contractor to prepare installation drawings and thus to carry out and complete the works in accordance with the contract programme; indeed, as recorded in paragraph 11 above, my understanding was that Mr Bartlett eventually accepted that that was so. …"
"26.2.1. the Contractor not having received in due time necessary instructions, drawings, details or levels from the Architect/Supervising Officer for which he specifically applied in writing provided that such application was made on a date which having regard to the Completion Date was either unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive the same."
"MASTER PROGRAMME – within fourteen days of acceptance of tender or as a result of a decision by the Architect under Clause 25.3.1 or 33.1.3 of the Conditions of Contract the Contractor shall provide for and in a form approved by the Architect a fully detailed master programme of the whole of the Works including a network analysis substantiating the programme contents. The programme shall comprehensively cover all aspects of and matters relating to the execution of the Works including indicating dates or periods for the issue of instructions or information necessary for the execution of the Works … ."
"The Contractor shall submit installation drawings of the whole of the works to the Engineer for consideration at a reasonable time before work is commenced. A program for the production of this information shall be submitted at the pre-Contract meeting and dates agreed with the engineer. Give due consideration to detailed co-ordination drawings where provided with the specification. No deviation from the positions indicated on the Engineer"
"The Contractor must produce all necessary working drawings for Architect/Engineers approval and shall allow 10 working days from submission the drawings for approval. All drawings must be produced in sufficient time to comply with all agreed programmes. Working drawings shall be similarly submitted for all purpose manufactured plant and materials."
"In the real world, the process of obtaining and supplying information is an interactive and iterative one. The Contractor will be in the best position to know what information he needs, and, generally, will not be shy to ask for it."
"79. Mr Bartlett placed the blame upon Brompton for the way that the judge dealt with the timing claim independently from the quality claim. He went on to submit that the findings of fact were conclusive on the issue. I do not agree. I believe that Mr Edwards-Stuart is correct in his submission that clause 5.4 is a term which must be construed as imposing an obligation to provide the drawings when necessary in the sense that the drawings must be provided when actually necessary as opposed to when they were perceived to be necessary. No doubt in most cases the perceived need of a contractor will coincide with actual need, but this may not be such a case. ..." "26.6 Reservation of rights and remedies of Contractor The provisions of clause 26 are without prejudice to any other rights and remedies which the Contractor may possess."
"What was a reasonable time falls to be determined by reference (amongst other things) to the terms of AA's appointment and the provisions of Capricode"). "
"All changes after this date may be proposed and these will be reviewed. Decisions will be taken on whether items may be incorporated prior to commencement of the contract or on practical completion. The Project Manager will have the responsibility to discuss the changes with the design team and report to the Project Co-ordinator with the effect on cost and programme and with recommendations on how the change should be actioned."
"without prejudice to any action which the Department might consider necessary in the event of an excess tender"
"In the Terms of Reference the expression "production drawings" has been used to indicate the standard and detail of drawings as applied and used by the Architectural profession. In order to relate this term to other official documentation including that used by the professional bodies of the other members of the Design Team, this footnote has been written. Production drawings for the work of the M &E Engineer in the context of this project shall be deemed to be equivalent to the term "working drawings" as used in the Annexure to ACE Model Term of Agreement D with the proviso that as an additional duty these working drawings shall provide a level of detail that work could be built or installed using these drawings." "
"Monitor and co-ordinate the design stages to ensure achievement of the dates set for the commencement of construction."
"Oversee the preparation of design programmes for all elements of the project within the master programme."
"Oversee the design team's administration of construction and building contracts…"
"Attend design and site meetings as necessary to co-ordinate the flow of production information to the contractor." "1. PURPOSE OF THE DOCUMENT … Project Manager Design Co-ordination and Integration … Construction … Architect Design Co-ordination and Integration Site Meetings […] Chaired by: Architect Design Review Meeting […] Chaired by: Project Manager Master Programme … Construction Progress The Contractor will submit short term detailed programmes at 8 week intervals in accordance with the General Conditions of Contract. The Project Manager will advise on the acceptability of these programmes, monitor progress and report delays to the Architect. …. Information Requirements Recording and Monitoring … It is clear that therefore from PMI's retainer and the Project Procedures Document that the leader of the team was to be PMI and not WGI which was displaced from the traditional role of the architect. WGI had now to communicate with PMI (the "
"The nature and amount of advice which, in a matter of this sort, a solicitor would be expected to give to a person wholly unacquainted with business may differ very materially from what he would offer to an experienced business man, who would naturally decide for himself the course he thought it in his interest to take." "
"it would not be efficient and proper project management for the same function to be being done by two parties" and he would not expect WGI to fight with PMI as to who should be producing the programme. Happily this statement of practice or recital of relevant factors (or reading of the contractual documents) was reflected in Mr Hutchings' own approach. Although WGI started by preparing programmes it ceded responsibility to PMI so that whatever its contract might have required it now reasonably expected PMI to look after programming the issue of design information to TW. WGI would be concerned to see that it happened properly because any failure could result in delay. WGI remained responsible for the integration of the designs of the consultants (see cause 3.11 of its contract conditions) and for the co-ordination of such information (see clause 3.7 of the Project Procedures) and to that extent only was concerned with the timely flow of information to TW. I now return to the facts. "1.0 Tender Negotiations T.T. reported that pricing of the Bill of Reductions would now be completed by Wednesday4 February 1987 . The pricing of the building sections was practically complete but following issue of the final information for services last Wednesday additional time was necessary. T.T. raised the question of other possible savings that had been put forward by them but not proceeded with. The Design Team had looked into all these and established that savings were not possible. ….. 2. Contract Documents NNN would require 3 weeks to provide a set of Contract Documents from conclusion of the Bill of Reduction negotiations. Following this it would be NNN's intention to provide a working document summarising the B of Q, Addendum B of Q and the Reductions B of Q. It was agreed that March 2 1987 would be the start date for the Contract. T.T. would make arrangements with PMI to visit site next week. Entry to area allocated for site offices and car parking can be cleared for9 February 1987 . T.T. P.M.I. 3. Joint Venture Agreement This would be based on the separate company requirement as proposed by T.T. P.M.I. to confirm. P.M.I. 4. Programme of Work T.T. issued provisional Programme anticipating only minor amendments to this document. T.T. would discuss entry onto site next week and would expect to have accommodation available for the Resident Engineer 3 weeks after start date. NNN called attention to Programme Items 60 – 63 and related this to the 12 week plant commissioner requirements. T.T. saw no problems and confirmed that detailed commissioning programmes would be issued based on contract requirements. 5.0 Information T.W. issued a preliminary issue of information schedule. Dates had been omitted from a number of items to allow discussions with W.G.I. W.G.I. would consider the list and make arrangements for meeting. W.G.I. C.N.M. issued 5 no. copies of drawings and bending schedules for southern half of Level 1 slab. Remaining Level 1 slab perimeter retaining walls, manholes etc, would be issued13 February 1987 . Level 2 slab and reinforcement would be available20 March 1987 . Agreement to be reached on issue of remaining reinforcement. C.N.M. issued the following schedule of information required by C.N.M. some of which was urgent. a. Sheet piling temporary works proposals with calculation and drawings. b. Crane base proposals by T.T. T.T. urgent c. Pump Mix and RMC information. d. Reinforcement supplier, source, mill test certificates. Backup supplier. e. C.N.M. noted that pull out bars cannot be used in all cases. f. Details of holes through slabs for cranes – precise dimensions. T.T. urgent g. Mould suppliers – trough formers. h. Structural steel fabricator. Stock steel – C.N.M. to issue to P.M.I. proposed stock steel in form of Bending Schedule. C.N.M. "
"a reasonably competent consulting engineer could anticipate commencing co-ordination drawings for level 1 first and would not need a contractor's programme to know this on a project such as this"
"a) To review and ensure that production information is being released in accordance with the Contractors requirements. "b) To resolve any current design problems. "c) To resolve any outstanding queries that the Contractor may have. "
"(c) Master Programme. The issue of the Master Programme was discussed at the pre-contract meeting held on 24 February and its issue was promised for 31 March. "
"Regrettably the prolonged period you have required to report on these items causes disruption all round and this will continue until we are in the position to obtain firm client instructions. Last week we issued further Client Enquiry Sheets No 19-29 inclusive. Can we please request you report quickly on any M & E additions as we again would like to clear these within the next ten days, i.e. 14 April, 1987. It would assist greatly if you would schedule the items of design co-ordination and drawings that are outstanding from you and your programme for completing. We could then discuss this at the Design Review meeting on the 14th April, 1987." "
"Other than it would be a mechanism by which the project manager could establish how these drawings were progressing in the M&E consultant's office". "the Contractor through the Architect and ourselves, is being pressed to provide as a matter of urgency the network analysis of his planning, a detailed services programme and his needs for the working drawings of specialised subcontractors"
"Network analysis and detailed M & E programmes are now expected from the Contractor within the next 7 – 14 days. Importance of early production of working drawings by specialist sub-contractors being stressed. Report on drainage progress will be contained within next month's report. Programme within report is a summary of the Contractor's construction programme. PMI will produce overall programme including equipment and commissioning stages."
"3.2.3 Variations DHSS were concerned at the total of the list of anticipated variations with a view to setting these against the contingency sum. (a) Client Changes PMI explained that scheduled anticipated variations were items that had generally been raised sometime ago and information was now available on estimated costs. PMI confirmed that they had the Client's support to the 'no changes' ruling and that it was the aim to make any necessary changes in the immediate post contract period. The Design Team awaited instructions on how to proceed. DHSS stated that with this particular project there should be no changes and that in any case a change would be the subject of a separate approval. DHSS also reminded the meeting that non contingency items over£20,000 would require an application to increase the approved sum. A schedule of proposed post contract changes should be included in the Monthly Financial Reporting."
"The minutes of our Design Review Meeting No 2 will indicate that the issue of your information, both Mechanical and Electrical is in delay. "
"Re: Room Loading Information Further to our recent discussions I have investigated further the situation with regard to provision of room loading information to the contractor. I would also comment on Brian Teale's letter to you dated 27 May, and give my further views on this overall matter. Finally, if the Project Manager remains unsure about the architect's responsibilities, and/or Watkins Gray are still not prepared to co-operate, then I think we should suggest to the Project Manager that the matter be referred to the DHSS for their ruling. In this respect, they should refer to the final Draft of the comprehensive agreement and the Department's previous understandings of respective responsibilities of the various disciplines comprising the Design Team. They could also refer to the South West or South East Thames Regional Health Authorities Architects Department who should be willing to confirm their own previous rulings and views on this subject. With regard to the Contractors, as previously mentioned to you, no one can expect them to provide this information as they are not in a position to carry out a location exercise without the architect's information and assistance. Nor should we air Design Team vagueness or disagreement in front of the contractor who must already be viewing the disarray and mismanagement of this project as a valuable contribution to the recovery of his losses on an alleged low tender. I hope this information will assist you at your meeting with Brian Teale on 8 June and I would be grateful if you would let me know the outcome as soon as you can."
" CERTIFICATE OF READINESS TO PROCEED TO TENDER The Board of Governors of the National Heart & Chest Hospitals The Board of Governors of the National Heart & Chest Hospitals SCHEME National Heart & Chest Centre – Phase I I certify that the revised tender documentation which takes into account the reduction to the work scope is consistent with and fully reflects the general production information to be provided to the Contractor."
"there were difficulties in producing the information, and difficulties in the co-ordination area. There were difficulties with Taylor Woodrow. So one could say that, at this early stage, we were getting into some quite difficult water, yes. Q. There was a need for a fairly firm grip to be taken on the provision of information? A. There was, yes." "4.2.1 e) Master Programme TWC/Taymech anticipate the issue of a fully co-ordinated Building/M&E programme by the end of July. The network analysis was discussed by TWC and PMI on 3 June. PMI to comment. AA confirmed they had no comments on the M&E programme. TWC will produce a short term programme each month in a form acceptable to PMI. CONTRACTOR'S PROGRESS REPORT TWC distributed copies of their report to 29 June. This indicates that, assessed against Programme Drg No. B364/P1 rev B, the contract is 4½ weeks behind programme. It was confirmed that it was TWC's intention to complete on time, bearing in mind the current situation. TWC are currently reviewing the situation and the steps required to redress the present position. … AA AA had no comment at this stage but agreed to review the procedures for the issue of information since TW have been receiving part information in some cases."
"We are in receipt of your letter dated8 July 1987 , to Taymech, enclosing preliminary co-ordinated drawings for level 1 High Level. We are concerned that these are preliminary at this stage bearing in mind our need for overall builders work drawings required from the Contractor for this level. We are also concerned with the contents/query document WO84/44. Can you please forward as promised the agreed dates for issue of information to Taylor Woodrow which perhaps will help to reduce our concern on the overall situation of co-ordination."
"It depends on the pressures on that particular consultant. He may have two major projects and they go at the same time. In that case he who shouts the loudest gets the drawings. That is common practice within our industry, I am afraid. Q. You are not aware, are you, of anything that you have seen that suggests that Mr Edwards is wrong in saying that a programme would have made very little difference to you? A. I am in no position to comment on that. That is Mr Edwards' view."
"The Senior Project Manager of PMI with the assistance of his Chief Planning Engineer will monitor the design process to ensure that the flow of construction information meets the requirements of the Contractor."
"The Main Contractor will prepare a schedule of Information Requirements covering the total project. In accordance with the Contract Conditions a fully detailed Information Requirement Schedule will be issued at each Site Meeting covering the forthcoming period highlighting information containing long delivery items. This information will be co-ordinated and monitored by PMI"
"Q. …But usually, I imagine, Mr Hutchings, in your experience, once correspondence -- or once it gets taken into the hands of senior partners, the problem normally resolves itself? A. Yes. Q. Because inevitably, whilst, as it were, requests at site meeting level might get fobbed off, stern letters, senior partner to senior partner, usually get taken pretty seriously? A. That is my experience, certainly."
"…Exactly, my Lord, and I think that is my suggestion; that notwithstanding what Taylor Woodrow were or were not saying, the project manager should have been marshalling the design team to produce a programme and get the drawings out as quickly as they can. MR WILLIAMSON: On the basis of the documents that we have looked at together, Mr Adams, I would suggest that is exactly what they were doing? A. I see no design programme; I see no co-ordination of that design programme. I do accept that I have not mentioned the pressure which PMI have quite correctly placed on Taylor Woodrow and AA. But the end product is that six months into construction we do not have the agreed design programme that will satisfy Taylor Woodrow's information requirements in the long-term. JUDGE LLOYD: I mean, we have not seen, if I see things correctly from your point of view, a large round table meeting to confront people with their responsibilities? A. Correct. There have been monthly design meetings; there has been one letter a month where the file has been reactivated; but the face-to-face meeting which you suggest does not appear to have taken place."
"The situation was still very much controllable and I saw no reason if all parties co-operated why the M&E installation date could not be maintained"
"With reference to your letter dated 6 th November 1987, we comment as follows:- A. The responsibility for the total direction, co-ordination and integration of the work of the Design Team remains with yourselves. PMI monitor the events and to this end we have since April 1987, registered our concern in letters and at our Design Review Meetings, at the lack of direction between Austin Associates and Taymech. B. The problems of the preparation of working drawings by Taymech is not recent as your letter suggests, but in fact surfaced some 3½ months ago, As we learnt at the meeting last Thursday the success of the Services installation in meeting target programme now depends on the successful employment of the C.A.D. computer to provide working drawings. Austin's letter to you dated 9 th November 1987 provides a record of events following the meeting with Taymech on 12 th August 1987, where dates were finally established for issue of working drawings from the Consultants and the Contractor. What is required is the schedule of events prior to this date in answer to Taymech's letter of the 28 th August 1987 and to the schedule attached to the minutes of the meeting of 14 th September 1987. This information will allow you to consider whether a claim for delays due to late issue of information is justifiable. C. The Taymech issue of information requirements dated 12 th August 1987 details dates for clearance of builders work drawings, location of equipment etc. (fume cupboards etc.) reflected ceiling plans. This still requires close attention on co-ordination on your part as not all dates have been met. D. Many of the problems we are experiencing are due to information programming still not resolved by the Contractor and in non compliance with Clauses 1/15/A1, A2, A3, A4, A5, 1/22C & 1/22D. This is reflected in the Contractor's report for the site meeting on17th November 1987 where we hear for the first time curtain walling and timber studding details are awaited and may be the subject of delays. We have urged compliance with programming requirement for a long time to assist in co-ordination of information issue and we feel this should be clearly stated to the Contractor. The next meeting with Taymech is on 27 th November 1987 and we trust that the measures being taken will rectify the situation, but we request that we are kept informed of the progress of the C.A.D. operation."
"I suspect that many of the points raised are all part of the "
"each level and zone"
"Taymech's decision to use CAD was very foolish and really an act of desperation. I took the view at the time that this was a mistake. This was because CAD was still in its infancy and it appeared foolish to start using such technology part way through a complex project such as Phase I. Sadly, I was proved right"
"Item 9.3.04 Taymec reported the following regarding the production of co-ordinated drawings as follows: Level 1: AA & Taymec are agreeing details where clashes have appeared and Zones 3, 4, & 5 will be issued before the last zone which will be 11.12.87. Level 2: issued by 18.12.87 Level 3: issued by 8.1.88 Level 4: issued by 27.1.88 AA pointed out that because of the amount of time Taymec are using the computer, they have been unable to take advantage of the facility. Taymech reported that there are problems of clashes occurring on level 1 as AA's co-ordinated drawings already in existence had not been used. Most clashes were due to line and level problems which had also been agreed earlier."
"TWC handed over their report and a copy is attached. It was pointed out that TWC would complete the r.c. frame on time but there was an overall delay of some 9 weeks due to the M & E works. After discussion TWC agreed that the services installation could still finish by end dates on programme, on the understanding that the flow of information is maintained. TWC pointed out that they did not agree with AA's statement at the previous meeting (Item 9.3.06) that they were not responsible for any delay and considered that there was some delay due to the Design Team. PMI stated that they were impressed with the quality and progress of the work but considered that the blockwork could proceed quicker in several places around the site. TWC advised that they did not want to be involved with cutting holes after the erection of the blockwork." "11.3.0 Contractor's Report a) The concrete frame was 3 weeks behind the programme. b) The M & E works were 11 weeks behind programme c) The M & E drawing programme was 20 weeks late and to date only 3 no working drawings had been produced. 11.3.3 WGI commented that the M&E part of the contract was further behind programme now than in November when manually produced drawings of level 1 had been issued. TW confirmed that they were using these drawings on site. 11.3.4 It was pointed out that the delay caused by Taymec's failure to produce drawings was the Joint Venture's responsibility and not the Design Team. It was Taymec's decision to use WOCAD who do not now seem capable of producing the drawings in sufficient quantities and in accordance with agreed programmes. It was considered that the level of information being produced by WOCAD indicated to the Design Team that not all the Design Team's information had been programmed into the computer and the Joint Venture were thus failing to meet their responsibilities. 11.3.5 TW made no comment on the statement in 11.3.4 but reported that they had evaluated the M&E situation and were using their best endeavours to mitigate the problem and complete the contract on time. 11.3.6 Because of the M&E delays work is proceeding on a site with drawings which have not been officially issued under the terms of the contract which requires drawings to be signed by the Design Team. AA were therefore asked by the Contractor to confirm that the work being installed on site was in accordance with the contract. AA problems at the time were not aware of any problems at the time [written in by hand as a substitution for "
"We must write and record our extreme disappointment with the Minutes of the meeting held on the 11 th January 1988 at 2.00 PM in the PMI Sydney Street Project Office to discuss the drawing situation (Taymech/Austin Associates). From the writer's reading of the Minutes it would appear that much of what was said has not been reported. "
"The co-ordination drawings provided by Austin Associates fell short of the requirements of HN78(6) in that they were undimensioned. It is our opinion that more and better referenced co-ordinated sections should have been provided. It is also our opinion that it was unreasonable to make the contractor responsible for ensuring that arrangements paid the necessary regard to the needs for servicing, maintenance and replacement."
"The Allocation of Design Responsibilities for Building Engineering Services - a code of conduct to avoid conflict."
"…on the information provided, it is our assessment that the designer's drawings do not constitute co-ordination drawings as defined in the DHSS conditions. The drawings fail to meet two of the requirements of the definitions for co-ordination drawings. Firstly the number of sections given on the drawing are insufficient to adequately show 'the inter-relationship of two or more engineering systems' in all areas where it would be reasonable to expect such information to be given. In addition, the drawings fail to meet the requirement that: 'the clarity of the drawings shall be such that the Contractor/sub contractor(s) may use them for construction purposes'. The additional information needed to enable the co-ordination drawings to be used as installation drawings is considerable. It would not have been possible to produce installation drawings from the designer's layouts without further information. "…the true test of AA's co-ordination drawings is whether the contractor was able to use the AA drawings for construction purposes without difficulty"
"Q. ….In relation to the positions of services relative to each other, I imagine you would accept that co-ordination drawings should show clearly where services cross, which one is on top and which is below? A. They should show that, yes. Q. And that is done by the use of established drafting conventions, in particular indicating the one below in dotted lines? A. Yes. Q. Mr Mackenzie, at any point where services cross, one should be able to tell immediately from a properly prepared co-ordination drawing which service is on top? A. One should be able to do that. Q. Immediately; just looking at it straightaway? A. Yes, but I had not seen, I think, many drawings in my life that do not have any errors of that nature on them. Q. Yes, I am sure, Mr Mackenzie, that must be so. Nobody is suggesting that drawings have to be error-free. It is a question of the degree of these things; you understand? A. Yes."
"1.1 The Consulting Engineer shall, if so requested by the Client, undertake responsibility for Co-ordination of Engineering Services designed by the Consulting Engineer and for the provision of Builders Work Information associated therewith. (a) collaborate fully with other professional advisers appointed by the Client; (b) collaborate with the appointed Architect, in the particular case of disposition of user outlets and environmental terminals, in accordance with procedures agreed by the Client provided that such procedures be neither more complex nor more comprehensive than those defined in Appendix B hereto; (c) prepare Co-ordination Drawings and such other documentation as may be required in the opinion of the Consulting Engineer to fulfil his design responsibility; (d) provide the Builders Work Information necessary in the opinion of the Consulting Engineer to enable detailed structural provision to be made by others for the engineering services designed by the Consulting Engineer."
"Our co-ordination drawings have been produced to indicate the relationship of one service with another, i.e. either above or below, or to which side. There is no requirement that they should be produced with line and level as suggested by the Contractor."
"The Health Note allows the Consulting Engineer to apply an appropriate interpretation for the particular project, which in this instance was to place TWC under contract to prepare Installation Drawings of all services showing their intentions for precise line and level of Services."
". . . our intent has always been that multi-service co-ordination drawings would be issued to show the general arrangement, which are diagrammatic in certain particulars, and the Contractor was to prepare Installation Drawings showing his proposed detailed arrangement of services and precise Line and Level. The contract specification is written in that manner."
'… if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.'
"In the case of commercial contracts, the restriction on the use of background has been quietly dropped. There are certain special kinds of evidence, such as previous negotiations and express declarations of intent, which for practical reasons which it is unnecessary to analyse, are inadmissible in aid of construction. They can be used only in an action for rectification. But apart from these exceptions, commercial contracts are construed in the light of all the background which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their intention: see Prenn v Simmonds[1971] 1 WLR 1381 at 1383. The fact that the words are capable of a literal application is no obstacle to evidence which demonstrates what a reasonable person with knowledge of the background would have understood the parties to mean, even if this compels one to say that they used the wrong words. In this area, we no longer confuse the meaning of words with the question of what meaning the use of the words was intended to convey."
"In the event of any conflict between the provisions of Form D and this Agreement the latter shall prevail", i.e. the other provisions and the other documents referred in the Agreement (see the annexe to this judgment). However it has importance in that it shows that whilst as a matter of practice the ACE considered that under the ACE conditions a Building Services Engineer such as AA is basically "responsible for ensuring that co-ordination of those services which he designs is practicable" but that if "appointed to undertake the preparation of fully co-ordinated drawings as an additional duty (i.e. by the PSA or DHSS, in accordance with special agreements, or by a private client agreement in similar circumstances) it becomes his responsibility to produce drawings to illustrate the practicability of inter-service co-ordination. (NB these are not working or installations drawings – see definitions in special Agreements)."
"That is what we work with within the industry". "
"The Contractor shall be responsible for the preparation of all fully dimensioned drawings of standard at least equal to, and of a scale sufficient to indicate to the Engineer, installation details of the following. Layout drawings indicating all plant, equipment and pipework that is to be installed giving lines, levels and positions of equipment. All plant rooms and works therein. All ventilation ductwork and fittings. Shop drawings of all manufactured and fabricated items and equipment. …". "
"if you enter into a dispute whereby the services will not fit, then I do not think it is the responsibility of the contractor to resolve that issue".. "….the onus on the consulting engineer, I believe, is to demonstrate that the services will fit. Then the contractor may adjust it slightly for his own purposes. If the services do not fit or cannot be made to fit, then I would consider that that was the responsibility of the consulting engineer. "
"We believed that the manner in which the co-ordination drawings were being issued indicated that AA were co-ordinating the works on a zone by zone basis rather than on a floor by floor basis. … If drawings are co-ordinated on a zone by zone basis and, if when producing a drawing of a zone an internal co-ordination clash arises, the solution devised to overcome that clash may have co-ordination ramifications in neighbouring zones which may not be identified until the services are actually installed."
"2.15 The delay which had previously been experienced in producing the installation drawings for the horizontal services meant that it was not until about April 1988 that resources could be fully allocated to the production of drawings for the riser and plant room areas although the boiler house drawings had commenced in early December 1987. Had the M&E information been provided at the proper time and had it been of sufficient standard then the difficulties experienced in these areas could have been resolved on the drawings at a much earlier stage. As we had installed works to unapproved drawings to mitigate against further delays to the works, when approval was given alterations had to be made on site to works previously installed."
" all clashes that occurred throughout the works arose because AA failed to properly co-ordinate the services"
"The dimensions needed to locate the M&E engineering systems could be scaled on AA's co-ordination drawings and reference could also be made to the chosen grid. I consider that dimensions can be scaled from AA's co-ordination plans (which were drawn at 1:50) to within plus or minus 50mm and from AA's co-ordination sections (which were drawn at 1:20) to within plus or minus 20mm. I consider that these tolerances provide adequate precision for an installer, who is then to prepare the actual installation drawings."
"I think that must be wrong; I think I ought to move it over here" because that would be wrong." "
"The Contractor's attention is particularly drawn to the description in the Bills of Quantities and British Standard Codes of Practice which calls for special methods of curing, laying and maintenance of materials in particular conditions or at certain moisture content or temperature range, and to conditions adopted by Association of Flooring Contractors and similar bodies… The Contractor must allow an adequate period in his agreed period for the drying out operations described herein."
"We confirm having carried out a single hygrometer test on level two in conjunction with F Ball & Co Ltd, the latex manufacturers. The hygrometer was left in position for a total of not less than 72 hours, and a reading of 92% was obtained. Flooring laid before the base has dried will in most cases fail because of excessive moisture. It is not the moisture in the slab or screed which is important, but the quantity of moisture leaving the slab and generating the vapour pressure. Hence a hygrometer test is recommended to check the suitability of moisture equilibrium before flooring is applied – a maximum 75% RH is required. However referring to our letter dated23 February 1989 we would reiterate that with slabs as thick as the ones on this contract, a hygrometer test is not always reliable, i.e. it may indicate that the floor is dry enough, when it is not. We shall however be carrying out a further two hygrometer tests simultaneously during this current week. We have now received the recommendations from the Contract Flooring Association, Long Furlong House, Holt, Norfolk, NR25 7DD, telephone number 0263 740370, they are as follows:- The CFA abide by the BS8203 (1987) rules and regulations for installing linoleum, and that is the legal document. The CFA feel that there will be problems with the slab drying out if it is 400mm thick in places, as nobody knows if the moisture will rise that far or if it will stay in the bottom of the slab causing no problems! The safe answer would be to install a surface DPM! If a surface DPM is installed, then the slab surface must be clean, and the surface roughened to form a key to receive the DPM, after which latex must be applied to the DPM as with power floated concrete. The CFA recommendation is in fact to lay a surface DPM. We would point out that BS8203 was March 1987. CP203 was in force before this date but it is very similar. Both standards do not mention "power floated or early ground systems". "
"The budget estimate for laying the moisture membrane, of all areas where lino occurs are treated, will be£75,000.00 . The next area of test results will indicate whether this can be reduced." "
"POWER FLOATED SLABS Slabs which are shown to have an RH in excess of 75% when tested in accordance with BS8203 shall be treated with Colas Hydrotite in accordance with the manufactures instructions subject to a written guarantee from the flooring sub-contractor underwritten by the manufacturer of the membrane smoothing compound and adhesive. Tests are to be maintained on levels 4, 5, & 6 to monitor RH values. This instruction does not extend to level 1 or other areas where a screed has been applied."
"2.0 PROGRESS 2.1 Phase 1 In our last report we indicated that the completion of services in ceiling voids was not meeting the target dates of the Joint Venture Contractor's detailed rescheduled programmes. It is evident that the amount of work, particularly regarding electrical wiring, has been underestimated. The evident shortage of electricians on site four weeks ago has been rectified and up to 80 no electricians are now on site, with a large proportion of those prepared to work Saturdays and Sundays. Despite the steps that have been taken the work to the erection of false ceiling grids, which is the most critical item on the programme, is now 1½ weeks in delay related to the rescheduled programme. Completion of services in the ceiling voids is 4 weeks behind the revised target dates. The services partner of the Joint Venture Contractor, Taymech Ltd, has now placed on site a Divisional Director and a Senior Planning Engineer to oversee the services installation. This is certainly a welcome move with the continuing under-estimation by Taymech Ltd, of the task ahead. The Architect has made known the concern of all at the inability of the Joint Venture Contractor to achieve programmed target dates and although this report has concerned itself with ceiling void services, erection of false ceilings to allow general floor finishes, equipment installations and decorations to proceed, concern has also been registered that other service installations are not making the expected progress. An unexpected problem has occurred with the suspended power floated floors and despite being under cover now for nearly 12 months, they have not given up sufficient moisture to allow lino laying to commence. Screeds from Level 2 – Level 6 were omitted at the Bill of Reductions time to make financial savings. The advent of a new British Standard on floor finishes in 1987, has brought to light inherent problems with the drying out of power floated structural slabs. Advice has been sought from many sources, Building Research, Cement & Concrete Association and Oxford Regional Health Authority. We have also had the benefit of advice from Mr Charles Stewart, an independent Architect, who advises the Department of Health on building matters and particularly on floors. Mr Stewart came to site on Tuesday,16 May 1989 , to look at our particular circumstances and also to take readings of the moisture content on Levels 2, 3 & 4. These readings were completed on the 19 th May 1989 and showed moisture contents of 82%, 82% & 77%, all greater than the 75% required by the British Standard 8203. What is evident from our enquiries is that it is not possible to establish how long it will take for the slabs to give up what is a small amount of moisture to achieve a 75% reading. In order to make progress on the project, advice has been given to the Client that a moisture membrane will have to be used. This advice has been accepted and instructions issued to the Contractor to proceed on this basis. Moisture readings will continue to be taken on the upper floors and if readings of 75% and under are achieved on any floors the use of a membrane will be omitted from these locations." [Emphasis supplied]
"Further to our meeting on24 May 1989 , we enclose herewith a copy letter from Colas Building Products dated25 May 1989 . We concur with their observations in respect of the installation of floor coverings on this contract, but would like to add the following. Latex is not a levelling screed as such, its primary use is for smoothing an open surface as well as providing a suitable base to receive an adhesive, over the Hydrotite surface membrane. It would be ideal if the building could be left to dry out, as reported by Harry Stranger's laboratory, but this being impractical, the only recourse is to lay a surface membrane. Our price for laying two coats of Hydrotite to floors has already been confirmed to you at£5 – 45m 2. We note from Colas's specification that the will need, prior to laying latex, a slurry coat of a latex mix. Our price for this will be£0 – 75/m2. Regarding applying the Hydrotite to the plastered walls where PVE skirting is to be installed. This will be carried out to the height of the skirting line, and our price for this will be£1 – 25/1.m. Our work method will be as follows. Minimum of 300m2 to be ready and properly cleaned for us to commence. Then areas to be got ready on a smaller scale once we are on site eg 70m2 at a time. Operation 1. First coat of Hydrotite on floors and turned up 20mm to walls. Operation 2. Second coat of Hydrotite ditto. Operation 3. Slurry coat of latex. Operation 4. Lay latex to slurry coat. Operation 5. First coat of Hydrotite to plastered walls, to skirting height. Operation 6. Second coat of Hydrotite ditto. Operation 7. Fix PVC skirting within four days of completing operation six. Operation 8. Lay lino to floors. Operation 9. Weld joints in lino. It is vital that no other trades are in any of the areas whilst all of the above operations are being carried out. We suggest that we work one floor at a time in areas free from anything that may contaminate any of our operations. Needless to say there must be no foot traffic on the floors until 24 hours after the lino has been completed. May we point out that it is not our responsibility to protect floors during or after our operations." "
"At our last meeting on28 April 1987 on site, we reported the problem being experienced with moisture still retained in to power floated floor slabs to the extent that line laying would not be able to progress to programme. The Joint Venture Contractor first registered this problem with the Architect in a letter dated13 April 1989 , when it was established that proposed subcontractors expressed their unwillingness to enter into subcontract unless the moisture content of the slabs complied with British Standard BS8203. This British Standard specifies the type of tests to be carried and advises that laying of floor finishes dependant on adhesives should not progress on slabs with moisture contents greater than 75%. Preliminary tests taken by both prospective subcontractors and the Joint Venture Contractor indicated that the moisture content was higher than this. Obviously, the new British Standard BS8203, has made the flooring industry more aware of the potential problems and in particular of failures that have occurred with power floated floors. In all the investigations with the Cement & Concrete Association and Building Research, it was evident that the unknown factor was how long it would take before the slab would give up sufficient moisture. The Joint Venture Contractor employed Stangers, to take a series of moisture content tests of the slabs from Level 1 to Level 6. We ourselves with the Client's agreement, employed Mr Charles Stewart, an independent Architect who advises the Department of Health on building matters and has particular experience on floors, to come to site and take readings. Letters dated 3 rd , 12 th , and 17 th May 1989, from the Architect are enclosed which provides information on the tests carried out by the Joint Venture Contractor and expresses concern at the need to agree the way forward. Also enclosed is a report from Mr Charles Stewart, together with a summary of the results obtained from his own readings from instruments provided by himself, which complied in all aspects to the recommendations of BS8203 (1987). The results confirmed that the slabs still contained too much moisture, despite in some cases being cast over 21 months ago and protected from all weather for well over 12 months. Without at this stage any possible method of extracting the moisture quickly, it was necessary to recommend to the Client the application of a moisture membrane to the slabs, to allow lino laying to proceed. This advice has been accepted and the Architect has been requested to instruct the Joint Venture Contractor to proceed. Further moisture content tests will be taken shortly by Mr Charles Stewart, to establish whether drying is taking place to the extent that slabs are suitable to lay on without a membrane. The budget estimate for laying the moisture membrane, if all areas where lino occurs are treated, will be£75,000.00 . The next set of test results will indicate whether this can be reduced. We will keep you informed of any further outcome and please let us know if further information at this stage is required." "
"2.0 Claims related to finishes 2.1 WGI reported that TWC had submitted a claim for delay in respect of the application of the Hydrotite system of damp proofing concrete floors. This had been amplified by a programme which showed that if applied strictly to the target completion programme the additional works would add 14 weeks to the floor laying activity. 2.2 It was accepted by all present that the instruction for this additional work had been unavoidable and that the effect of this was to disrupt the regular progress of the work. 2.3 WGI assessed the delay at 5 weeks."
"With reference to the discussions at the Design Team Meeting held on 12 October, we confirm that we have examined the submission made by the contractor for extension of time in respect of the damp proof membrane being applied to the floor slabs. The contractor claims that in complying with this instruction he has been involved in additional operations which have had a delaying and disruptive effect on the regular progress of the works, to the extent of 14 weeks. The contractor has reorganised his work patterns, albeit with disruptive effect upon other trades to reduce this period wherever possible. We are of the opinion that:- a) The cause of the delay is a Relevant Event, i.e. clause 25.4.5.1. b) The effect of this additional work would delay the completion of the works beyond the Completion Date. c) A period of 5 weeks would be a fair and reasonable extension of time in this respect. In accordance with our previous agreements we shall delay the issue of our Notice of Revision to the Completion Date in order that you may advise the client and the Department. The revised Completion Date will be12 November 1989 ."
"3.12 We agreed that WGI, knowing that PMI would report the situation to the Board requesting instructions how to proceed, should have reminded PMI of the further option, that TW should be held to their contractual responsibility and instructed to resolve the problem at their own cost. …. "3.16 We agreed that WGI should have advised PMI that by issuing an architect's instruction to TW to lay Hydrotite there would, in addition to the direct additional costs, be the possibility of claims for delay and disruption and an Extensions of Time from TW"
"7.10 When a member of the Design Team considers that a variation is required in any category except Category 2 then he is responsible for notifying the Project Manager, and for requesting other members of the Design Team to investigate and assess the design and programme implications of the change, providing sufficient information to the Quantity Surveyor to estimate a budget cost."
"Approval Procedure 7.11 When evaluating the effects of a variation in any category, each member of the Design Team will be required to formally confirm his assessment in writing, accompanied by any necessary drawings, sketches or other documentation. The Project Manager is responsible for ensuring that this back-up exists and that all assessments have been made on a consistent and reasonably accurate basis. Where he judges it appropriate the Project Manager will endeavour to obtain the Contractor's assessment of the effect of the proposed change on costs and programmes. 7.12 On receipt of the Design Team assessments and, where appropriate, the Contractor's assessment, the Project Manager will prepare a Change Order Form set for consideration by the Client. The Project Manager is responsible for ensuring that the Change Order Form accurately reflects the assessments provided and will endorse the form to indicate this. 7.13 The Change Order Form will contain the following information: Serial number A description of the change Variation category Bill references Drawing references Net cost effective on the Approved Sum by Building and M&E, including direct and indirect costs Effect on programme 7.14 A Change Order Form set authorised within the delegation limits defined in 7.4 will be separated and distributed to the Client and the Design Team by the Project Manager." "
"You cannot predict the way contractors react."
"74.2 Had PMI and/or WGI not been in breach of contract and/or negligent as set out in paragraphs 71.4 to 71.11 inclusive above and 72.5 and 72.12 inclusive above respectively, then: 74.2 .1 the Board would not have agreed to the giving of the instruction to lay Hydrotite; and/or 74.2 .2 the extensions of time and payments to Taylor Woodrow in respect of the instruction to lay Hydrotite referred to in paragraphs 69.3.2 and 69.3.3 above would not have been granted or made; and/or [74.3 .3 in the arbitration Taylor Woodrow would not have advanced the claims in respect of the instruction to lay Hydrotite set out in paragraph 69.3.4 and/or those claims would have stood significantly less chance of success; and/or 74.4 .4 in the arbitration the Board and/or the Plaintiff would not have had to make the claims set out in paragraph 70.2 above and/or those claims would have stood a significantly greater chance of success]"
"Thank you for your letter of 7 th July regarding the M & E claim. You have now confirmed by telephone that, despite previous assurances, no additional advice can now be made available to assist in the evaluation of this claim. We must re-iterate that the extremely technical nature of this claim requires specialist expertise to assess it fully, and this level of speciality can only be provided by an appropriate specialist consultant. Without such expertise we will have to rely solely on the advice of Austin Associates who are of course the Mechanical Engineers involved in the project. The programme position is generally as reported at the last meeting. The snagging and inspection of high level services is gaining momentum and we are optimistic that there will be a visible improvement in the completion of services over the next few weeks. In an attempt to improve the situation we have changed the programme sequence by making the vinyl flooring the critical path activity. This is seriously disrupting other trades, due to the isolation of floor areas and the increased duration caused by the addition of the Hydrotite damp proof membrane." "
"We are in receipt of your quite unacceptable letter dated 10 th September 1989 in which you have rejected our claim submitted under cover of our letter of 19 th June 1989 for extensions of time in respect of delays to the mechanical and electrical services installation. Your letter concentrates on 3 clauses and a subjective defence document from Austin Associates which may be the subject of a very detailed response in the near future dependant upon our deliberations as to the appropriate action at this junction. You do not begin to address one of the most salient points, namely that upon our late receipt of the co-ordination drawings prepared by the services Consultants most of them proved entirely inadequate for our use in the production of installation and working drawings by virtue of the number of clashes and discrepancies that they contained. We refer below to the particular comments by reference to the several clauses mentioned in your letter. Clause 2.2.1 On the assumption that you are interpreting the Bills of Quantities and Specification in the way which Austin Associates have (which we find very surprising) it is patently clear that there is indeed a conflict as you are attempting to suggest that we have design obligations contrary to the provisions of the conditions of contract. You have also failed to note that our arguments were submitted in the alternative and we suggest that you reconsider our claim. Clause 5.4 Whilst we accept that our programme no TWC/B364/B/P01/C was referred to in the claim document, your suggestion that we have only retrospectively applied for the information and that our application therefore falls outside the requirements of clause 25.4.6 is not correct. The programme to which our claim refers is revision C of our initially prepared contract programme, revision A of which was tabled at our meeting of 31 st March and revision B of which was forwarded to you under cover of our letter dated 10 th April 1987. We enclose for your information a copy of our programme TWC/B364/B/P1/B which makes quite clear that all information relating to the mechanical, electrical, plumbing, and specialist services installations was required to be provided to us by 4 th May 1987. In addition, we would refer you to the minutes of our meeting held on 31 st March 1987, a copy of which is attached, during which a schedule of required information was discussed. The schedule clearly indicated those dates upon which the services details were required. There was no suggestion at that meeting that our requirements could not be complied with. Indeed, Austin Associates undertook to produce all such information during that week. In the event as our claim document makes entirely clear, the information relating to the services was issued extremely late and had a significant effect upon our ability to produce our installation drawings in a timely manner which in turn seriously delayed and disrupted our work. The fact that the information we required was issued extremely late is a matter upon which there can be no doubt. Furthermore, there can be no doubt that you and Austin Associates had previously been made fully aware of our requirements fully in accordance with our contractual obligations. Clause 7 We have had many exchanges on this clause previously, and we are quite clearly diametrically opposed. We have previously given detailed reasons why interpretation is correct and on every occasion you have failed to justify your most novel interpretation. This is the style adopted by Austen Associates in their document. In the light of the further information that we have now provided, in particular, under clause 5.4 above, we must urge you to urgently reconsider your position in the interests of all concerned."
"Thank you for your letter of 26 September regarding the M & E claim. In our letter of 18 September we stated that our assessment of the claim was based on the analysis prepared by Austin Associates. This analysis had taken the whole of the 12 week period allowed by the contract for the determination of claims and we accepted that it would be factually correct. The contractors claim document was referred to programme P01/C as evidence for this request for M & E information by4 May 1987 . In their analysis Austin's correctly point out that this programme was not issued until August 1987. They thus claim that the request was retrospective. We have now received from the contractor a letter dated 29 September, a copy of which is enclosed, pointing out that programme P01/B was issued on10 April 1987 and this document also calls for the information by 4 May. In addition it has been pointed out that the Schedule of Information Required issued at Site Meeting No 1 held on31 March 1987 calls for all M & E information to be issued commencing6 April 1987 . We have carried out an analysis of the dates when information was called for and when it was actually issued. This shows that the issue of co-ordinated drawings was on average some 15¼ weeks after the date required. We believe that this matter should be discussed at a meeting of the Design Team when the doubts raised in your letter could also be discussed. We have therefore arranged a meeting for 12 October at 10.00 am at Alexander House." "4.0 M&E Services 4.1 Late issue of information 4.1.1 WGI reported that in coming to this decision on the M&E claim they had relied upon the claim document and the analysis of it prepared by AA. Both these documents were based on TWC Programme P01/B issued in April and the schedule of Information Required issued at Site Meeting No 1 on 31 st March 1987. Both of these documents called for the issue of all M&E information in April/May 1987. 4.1.2 AA stated that whilst they could find no record of having received Programme P01/B they acknowledged the schedule. They pointed out that the same schedule issued at the next Site Meeting showed that this information had been received. They therefore concluded that the information asked for did not at that time include co-ordinated drawings, although TWC now contend that it did. 4.1.3 It was the view of all present that under the terms of the contract TWC were not entitled to receive co-ordinated drawings but that they had been advised, both before tender and after the award of the contract, that they would be provided by way of further information. 4.1.4 AA stated that in their view, having been advised that co-ordinated drawings were to be issued, it was reasonable for TWC to await their receipt before commencing their own drawing programme. 4.1.5 AA further stated that although the meeting held on 11 th August 1987 was the first time a programme for the release of co-ordinated drawings had been discussed, with the benefit of hindsight they should have been pressing for them earlier. 4.1.6 WGI stated that in analysing the latest information for TWC they had used a period of 19 weeks from the issue of co-ordinated drawings to a start on installation. This was made up:- 9 weeks drawing period 2 weeks approval 8 weeks mobilisation 4.1.7 AA did not consider that this was a reasonable period. In their view a period of 16 weeks, made up as follows, was more reasonable:- 6 weeks drawing period including queries 2 weeks approval period including queries 8 weeks mobilisation period including queries This period was based on the actual times taken for the upper levels which had been carried out jointly with TWC in AA's office. 4.1.8 It was agreed by all present that TWC were entitled to an extension of time and that WGI should use 16 weeks in assessing the claim. 4.2 Inaccuracies & Inadequacies 4.2.1 AA stated that they accepted that there had been errors in the co-ordinated drawings but contended that the effect of these had been countered by their placing of a co-ordinating engineer on site. They did not accept that the drawings were in any way inadequate." "
"With regard to your general assertions regarding your obligations to provide such additional information as we require, we should point out that the conditions precedent to the award of the extension of time you seek are: - (i) that the progress of the works has been or is likely to be delayed and (ii) that the completion of the works is likely to be delayed beyond the Completion Date. Since both of these conditions are the subject of the Architect's opinion, it seems reasonable for us to require such additional information as would allow that opinion to be an "informed opinion"
"When calculating the alleged period of delay under the extension dated 2 nd November 1989, and possibly the extension dated 14 th August 1990, WGI either made a two week calculation error or erroneously allowed an additional two week period for Easter when no such period should have been allowed."
"I consider that WGI were mistaken in the way in which they approached the assessment of this EoT and in their calculations, and that as a consequence the extension of time they awarded was greater than it should have been. As to whether in making the mistakes I have identified, WGI fell below the standard to be expected from a reasonably competent architect, this is a complex issue and a difficult question and is a matter I wish to consider further in the light of the continuing discussions with the other expert architects and the release of the expert programmers' reports."
"In fact, on the current state of the authorities these costs may even be recoverable if the EOTs were granted negligently".] 297. For this reason, Brompton submits that the question of whether there was in fact any, and if so how much, delay in fact does not have to be considered, save possibly in the context of certain sums claimed based on the settlement of the arbitration." (There was a comparable paragraph in relation to the hydrotite claim.) AA did not therefore in its final submissions, both written and oral, grapple with the point that had earlier been canvassed, although its own submissions naturally required consideration of some of the same territory. It was not until some way into the final submissions of Mr Williamson that it emerged that the point or some point had not been abandoned. This was not satisfactory, nor were the explanations offered for the absence of any response to Mr Bartlett's queries ("to formulate detailed issues meeting all the objections was going to take time that we just did not have to devote to it"). The next day, just as Mr Bartlett was tendering submissions on paragraph 296, Mr Edwards-Stuart produced further "
"The Nature of the 'Issue' 1. The 'issue of principle' is in fact a practical issue which arises to be determined on the evidence before the court. In essence the issue is "
"If WGI decision to grant a particular extension of time was wrong, what quality of error must be established to break the chain of causation?" 3. In practical terms this is encapsulated in the submission made in paragraph 296 of Brompton's Closing (and paragraph 374 for Hydrotite)."
"How does the court decide whether the breach of duty was the cause of the loss or merely the occasion for the loss?" and he answers it by applying the Australian decisions to which he had been referred "
"As is often the case, once the question has been correctly identified, the answer to be given to that question is straightforward."
"(1) The defendants negligently and in breach of the duty of care which they owed to the plaintiffs, damaged the plaintiffs' property (the harbour works including the dolphins) thereby causing the plaintiffs loss. (2) The plaintiffs' cause of action was then complete and the sole remaining question was the assessment of the plaintiffs' loss. (3) The plaintiffs were under a duty to mitigate their loss and in reasonable mitigation chose to employ the contractors on the ICE terms to carry out the necessary repair work. (4) The cost of this mitigation was the sums which the plaintiffs became liable to pay to the contractors for the carrying out of the repair work under the ICE contract. This cost included the sum of£178,2350.47 . (5) The defendants' liability in damages to the plaintiffs includes the expenditure which the plaintiffs have thus incurred in the reasonable mitigation of their loss. There is no allegation that the steps which the plaintiffs took increased rather than mitigated their loss but, even if they had, this would have made no difference to the defendants' liability provided that the plaintiffs had acted reasonably."
"The defendants accept that the damage to the harbour works caused by their vessel had to be made good and that it was reasonable for the plaintiffs to contract with contractors who would do the work on the terms of the ICE contract. Clause 12 of the conditions of the relevant contract provides an entitlement to additional remuneration for the contractor who encounters physical conditions which could not reasonably have been foreseen by an experienced contractor. Having conceded that it was reasonable for the victim of the tort to accept a condition involving a contractual liability for unforeseen physical conditions, the defendants seek to argue that they are not liable for the contractual liability upon the plaintiffs held to result from the operation of the clause." "
"It was not suggested by Mr Crowther, and was not held by the judge, that Delyn had actually been negligent. Indeed, the passage that I quoted from his judgment establishes that he would have come to the conclusion that he did, even if Delyn had been positively found merely to have been incompetent or ill-advised or ill-judged, rather than negligent. This combination of circumstances falls far short of what is required in law to constitute a successful defence of novus actus interveniens. To some extent that is a matter of impression but only to some extent. What has to be demonstrated, in my judgement, is that the intervention has, as Cooke J said, turned the negligent act of the defendant into a matter of surrounding circumstances. That is plainly not this case. What was done was in direct response to a hazardous situation created by the defendants. It was at their peril that an intervener might not act with full competence and might cause some further or different injury. That is apparently, on the evidence before the judge, what happened in this case, but it does not exculpate in law, in the circumstances of this case, the defendants from the consequences of their original act of negligence. The point is a short one. But I am satisfied that the judge approached it too shortly and approached it on a too mechanistic and narrow view of the doctrine of novus actus."