“last week we were clearly instructed to get out all steel as quickly as possible and ZNS would sort in their yard into phases. If MPX/ZNS want anything different we need to know.”
“If this matter is not resolved prior to trial, Multiplex considers that it can and should be dealt with at the commencement of the trial.”
“ 25. It very often happens in professional negligence cases that a defendant will give evidence to a judge which constitutes the reason why he considers that his conduct did not fall below the standard of care reasonably to be expected of him. He may do this by reference to the professional literature that was reasonably available to him as a busy practitioner or be reference to reasonable limits of his professional experience; or he may seek to rebut, as one professional man against another, the criticisms made of him by the claimant’s expert(s). Such evidence is common, and it is certainly admissible. Mr Phillips, who appeared for the claimant at the trial, did not believe he had told the judge that Mr Moreland’s evidence on matters of this kind was inadmissible, and neither of the very experienced leading counsel who appeared in this counsel who appeared in this court was willing to support the judge’s view of the matter. “26. Of course a defendant’s evidence on matters of this kind may lack the objectivity to be accorded to the evidence of an independent expert, but this consideration goes to the cogency of the evidence, not to its admissibility. That such evidence was in principle admissible should have been reasonably apparent from the judgments in this court in ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust[2003] EWCA Civ 1284 at [24], [31]]-[32] and [41],[2004] Lloyd’s Rep Med 90 .”
“What these men were doing was making good the time of the bad weather. It is a job. It is to keep them working so they are not just sat in the cabin. You give them oilskins to go out and clean areas to make them clean ready for when they are going to apply the intumescent.”
“The Upper Section of the upper tier rakers (from Level S6 to PPT) will be delivered to site in two sections classified as the Raker Upper Section and the Raker Top Tapered Section. These two sections are then to be site welded to form the Upper Section of the Upper Tier Raker. It is the intention of CBUK to weld these splice connections at ground level to reduce the amount of work required whilst the pieces are in the air and thus reducing the risks associated with working at height.”
“In essence paragraph (b) was for fabrication work and paragraph (c) was for erection and site works. Fabrication work would not cease to be fabrication work only because fabrication work was transferred to and done on site.”
“1.8.1 The Sub-Contract constitutes the entire agreement between the Parties and supersedes all prior negotiations, commitments, representations, communications and agreements relating to the SubContract either oral or in writing except to the extent they are expressly incorporated herein. The Sub-Contractor confirms that it has not relied upon any representation inducing it to enter into the Sub-Contract (whether or not such representation has been incorporated as a term of the Sub-Contract) and agrees to waive any right which it might otherwise have to bring any action in respect of such representation. The Sub-Contractor further confirms that there is not in existence at the date of the Sub-Contract any collateral contract or warranty of which the Sub-Contractor is the beneficiary which might impose upon the Contractor obligations which are in addition to or vary the obligations expressly contained in the Sub-Contract and which relate in any way to the subject matter of the Sub-Contract. The Sub-Contractor’s only rights arising out of, or in connection with, any act, matter or thing said, written or done or omitted to be said, written or done, by or on behalf of the Contractor (or any agent, employee or sub-contractor of the Contractor) in negotiations leading up to the Sub-Contract or in the performance or purported performance of the Sub-Contract or otherwise in relation to the Sub-Contract are the rights to enforce the express obligations of the Contractor contained in the Sub-Contract and to bring an action for breach thereof. Nothing in this clause 1.8 is intended to exclude liability of the Contractor for fraud or fraudulent misrepresentation.”
“(a) the gross valuation as at15th February 2004 of work properly completed on Site and goods and materials brought onto Site by the Subcontractor and Off-Site Materials in accordance with the provisions of the Subcontract …”
“The purpose of the Payment Programme is to show the values of the various elements of the Works for the purpose of valuations and payment pursuant to Clause 21 of the Subcontract Conditions.”
“An Application for Payment in respect of the items referred to at paragraph (c) above may be made in accordance with clause 21.3 of the Sub-Contract at two week intervals and clause 21of the Sub-Contract shall be construed accordingly with the necessary changes made.”
“CBUK Darlington Office was visited 1 –2 July 2004 and CBUK payroll, timekeeping, bookkeeping and personal staff were interviewed. CBUK staff had no difficulty in producing any paperwork, justification, or explanation for any verification query posed. The staff responded efficiently and in an open manner despite the circumstances.”
“9. In the event that the unperformed reimbursable costs items (referred to in schedule 1, paragraph (c)) are removed from the subcontract works in accordance with clause 8, it is agreed that: “9.1 the parties will liaise during the 28 day notice period with a view to securing alternative employment for as many of the Sub-Contractor’s Site employees as possible and ensuring an orderly handover of the works with due respect for consultation and notice requirements.” “9.3 the Contractor and/or his sub-contractors and/or his or their agents may enter upon the Sub-Contract Works and use for a consideration of£500,000 all temporary buildings, plant, tools, equipment and temporary works necessary for the carrying out and completion of the unperformed reimbursable cost items provided that where the aforesaid temporary buildings, plant, tools, equipment and temporary works are not owned by the Sub-Contractor, the Sub-Contractor shall use all reasonable endeavours to ensure that the benefits of all hire agreements and the like in respect of such temporary buildings, plant, tools, equipment and temporary works are fully assigned to the Contractor for the completion of the unperformed reimbursable cost items. The aforesaid consideration will be paid within 14 days of the Sub-Contractor complying with the Clause 9 and leaving the Site.”
“The fabricator is not responsible for the application of intumescent painting.”
“both parties, Multiplex and Hollandia, were well aware that by bringing such an enormous amount of fabricated steel to East Lane and all steel that was in fabrication to ZNS in Holland, that at the end of the project there would be quite some steel left over.”
“56. At a fundamental level, Mott MacDonald’s design of the steelwork for the Wembley Stadium Project was: (i) not constructible; (ii) not correct; (iii) not complete; and/or (iv) not co-ordinated.” “391. Further changes to the T7 truss were made after Revision H. Changes to the T7 end reactions occurred on10 February 2004 and21 September 2004 (Revision J of the FC drawings).” “392. Mott MacDonald made a further and highly significant change to the design of the T7 truss during December 2004 and January 2005. Mott MacDonald changed all of the connection forces in the T7 truss and also made significant revisions to the member sizes of the principle members in the truss. This design change was particularly disruptive as, at the time the change was introduced, Hollandia had just completed the drafting work on the T7 truss and had commenced fabricating the T7 truss sections.” “393. Mott Macdonald has previously attempted to attribute this revision to changes of the weight of the Moving Roof advised by Hollandia, however, as set out in Section F4 of this letter, Mott MacDonalds estimate of the Moving Roof dead load was incorrect and appropriate load contingencies were not used in Mott MacDonald’s design. Further, Mott MacDonald failed to notify Multiplex that it was undertaking a re-design of the T7 truss in December 2004 and January 2005 despite the fact that an engineer from Mott MacDonald was resident in Hollandia’s office and would have been aware that fabrication of the T7 truss had already commenced. Mott MacDonald’s failure to notify Multiplex of these very late changes to the design of the T7 truss falls well below the standard of reasonable skill, care and diligence as may be expected of a qualified, experienced and competent structural design engineer on a project of this nature.” “492. Mott MacDonald’s estimated Moving Roof dead load was incorrect and appropriate load contingencies were not used in Mott MacDonald’s design. The final weight of the Moving Roof was approximately 200 tonnes heavier than the selfweight calculated by Mott MacDonald, representing approximately a 25% increase in its self weight.” “642. From the period on or around8 November 2004 onwards, Hollandia completed the remaining design, fabrication and erection of the steelwork. They continued to be beset by changes and deficiencies in the design of the steelwork and in particular, design deficiencies in connection with the PPT and the moving and fixed roofs (as is discussed in more detail in section E and F of this Letter of Claim).” “643. Throughout this period, Multiplex reprogrammed its work on several occasions to overcome the impact of Mott MacDonald’s design breaches.” “977. Multiplex has ultimately settled claims made by Hollandia for amounts payable in relation to the design and drafting of the steelwork (under Order 9050) and the onsite erection of the steelwork (under Order 2760). Multiplex and Hollandia have settled Hollandia’s claim for design and drafting of the steelwork for a total of£10,000,000 . However£5,709,106.01 is currently being sought from CBUK in relation to the design and drafting of the steelwork associated to the Bowl performed by Hollandia. The balance of those costs are, in part, costs incurred by Hollandia in the period surrounding CBUK’s repudiation on2 August 2004 and the resulting ‘learning curve’ from Hollandia BV and this portion of the costs amounts to£1,625,520.63 .” “978. Notwithstanding that cost, Multiplex asserts that an additional£2,665,373.36 of design and drafting work was caused by variations to the design of the steelwork which were introduced by Mott MacDonald and Multiplex seeks the sum of£2,665,373 from Mott MacDonald as a result of those variations (and those variations are discussed, in part, in Sections E and F of this letter and Multiplex will provide further particularisation in due course).”
“We are currently reviewing and returning roof fabrication drawings. Following our meeting with MPX and Hollandia on29 July 2004 , it is apparent that Hollandia have differing views to CBUK with respect to the provision of length adjustment and tolerance during construction of the roof. Particular elements include CTs, bracing, purlins and the underslung rafters. Our review of the roof fabrication drawings is for general compliance with our contract documents (which describe the structure in its permanent condition). Our review does not encompass provisions that the contractor may feel are necessary for their erection requirements. On the recently returned Phase 66 drawings, we have highlighted this point with respect to the bracing and CT elements by annotating the appropriate drawings. However, this is relevant to all roof fabrication drawings. Before Hollandia commence fabrication, they should review the drawings and confirm or otherwise that the drawings provide the necessary provisions they require for their erection methods and sequence.”
“Q. would it be fair to say that by 6th July you were quite well advanced in relation to planning for erection engineering? A. Yes, I was very busy setting up the team and the organisation for that”
“MPX confirmed Hollandia will be responsible for erection engineering”
“Seeing that the renunciation itself is the breach, the damages must be measured by compensating the injured party for the loss he has suffered by reason of renunciation. You must take into account all contingencies which might have reduced or extinguished the loss. That is made clear by the very first case in which that doctrine of anticipatory breach was established, in Hochester v. De la Tour itself (1853) 2 E. & B. 678, 686687. It follows that if the defendant has under the contract an option which would reduce or extinguish the loss, it will be assumed that he would exercise it. Again, if it is reasonable for him to take steps to mitigate his loss, he must do it. And so forth. In short, the plaintiff must be compensated for such loss as he would have suffered if there had been no renunciation: but not if he would have lost nothing.”
“But the true test in a case of anticipatory breach is: ‘What would the position of the parties have been if the defendant had not wrongly announced his refusal to fulfil his part of the contract when the time for performance arrived?’ One must look at the contract as a whole, and if it is clear that the innocent party has lost nothing, he should recover no more than nominal damages for the loss of his right to have the whole contract completed. The assumption has to be made that, had there been no anticipatory breach, the defendant would have performed his legal obligation and no more. ‘A defendant is not liable in damages for not doing that which he is not bound to do’: Scrutton L.J in Abrahams v. Herbert Reiach Ltd. [1922] 1 K.B. 477, 482, cited with approval by Diplock L.J. in Lavarack v. Woods of Colchester Ltd. [1967] 1 Q.B. 278, 293.” 1528. At pages 209H to 210B Megaw LJ said: “In my view, where there is an anticipatory breach of contract, the breach is the repudiation once it has been accepted, and the other party is entitled to recover by way of damages the true value of the contractual rights which he has thereby lost; subject to his duty to mitigate. If the contractual rights which he has lost were capable by the terms of the contract of being rendered either less valuable or valueless in certain events, and if it can be shown that those events were, at the date of acceptance of the repudiation, predestined to happen, then in my view the damages which he can recover are not more than the true value, if any, of the rights which he has lost, not having regard to those predestined events.”
“The true question here is whether the appellant’s failure to respond to the letter of21 January 1997 ought to absolve the respondents of what would plainly otherwise be their responsibility for the fire. For my part, I think it plain that the risk of a fire of this kind was, on the face, well within the scope of outcomes which the respondent’s contractual duties were intended to avoid. So much appears, I think, from the catalogue of obligations cited by the judge at paragraph 38 which I have set out. Accordingly, even if the letter of21 January 1997 and the enclosed fax did not constitute a warning of a risk of fire of the kind which occurred on9 March 1997 , a question to which I will come in a moment, it was a warning of an outcome which the respondents themselves should have prevented from happening . I find it very difficult to see how the giving of such a warning ought to transpose the burden of avoiding that very outcome, from the respondents, who owed a duty in effect to prevent it, to the appellants who were the beneficiaries of that duty.”
“If a contract for performance over a period has come to an end by reason of a repudiatory breach but might, if it had remained on foot, have terminated early on the occurrence of a particular event, the chance of that event happening must, it is agreed, be taken into account in an assessment of the damages payable for the breach. And if it is certain that the event will happen, the damages must be assessed on that footing.”
“Another way of putting the point being made by Megaw LJ is that the claimant is entitled to the benefit, expressed in money, of the contractual rights he has lost, but not to the benefit of more valuable contractual rights than those he has lost.”
“The same would, in my opinion, be true of any anticipatory breach the acceptance of which had terminated an executory contract. The contractual benefit for the loss of which the victim of the breach can seek compensation cannot escape the uncertainties of the future. If, at the time the assessment of damages takes place, there were nothing to suggest that the expected benefit of the executory contract would not, if the contract had remained on foot, have duly accrued, then the quantum of damages would be unaffected by uncertainties that would be no more than conceptual. If there were a real possibility that an event would happen terminating the contract, or in some way reducing the contractual benefit to which the damages claimant would, if the contract had remained on foot, have become entitled, then the quantum of damages might need, in order to reflect the extent of the chance that that possibility might materialise, to be reduced proportionately. The lodestar is that the damages should represent the value of the contractual benefits of which the claimant had been deprived by the breach of contract, no less but also no more. But if terminating event had happened, speculation would not be needed, an estimate of the extent of the chance of such a happening would no longer be necessary and, in relation to the period during which the contract would have remained executory had it not been for the terminating event, it would be apparent that the earlier anticipatory breach of contract had deprived the victim of the breach of nothing.”
“It is in my opinion important to read this statement in the context of the case which the Court of Appeal was deciding. It was completely certain, or predestined, that the contingency on which the charterers were entitled to cancel the contract would occur, since it was physically impossible for the ship to reach Haiphong by 20 July, the date on which she was to be ready to load at that port and the date on which the charterers could cancel if she was not so ready. Megaw LJ’s statement was entirely correct, for the event was predestined to happen and the consequence which he set out in the passage which I have quoted had to be regarded as following. It might be doubted whether Megaw LJ intended to enunciate a general rule limiting consideration of subsequent events to those predestined to happen, seen from the date of acceptance of repudiation, and it may be observed that neither Lord Denning MR nor Edmund Davies LJ went so far as to tie the consideration of subsequent events to those which could be seen at the date of repudiation as certain to happen. If, however, the meaning to be taken from Megaw LJ’s statement is that only events predestined to happen will qualify to bring the exception into operation, then I must decline to accept that as correct, for the reasons which I shall set out.”
“It was an all or nothing case. The voyage either would or would not have taken place. Not so here: the question rather was whether and if so when the charterparty would have been ended under clause 33 before the completion of its nominal term. Even had war not broken out by the time damages came to be assessed I can see no reason why that question should not have been addressed in the conventional way, i.e by making the best possible assessment of the likely course of future events as at the date of assessment. As Lord Denning MR said in The Mihalis Angelos[1971] 1 QB 164 , 169: ‘You must take into account all contingencies which might have reduced or extinguished the loss.’ It was hardly a novel proposition.”
“So Fairchild is an exceptional case in which the House of Lords, in particular circumstances, enabled a claimant to finesse what would otherwise have been an insuperable evidential problem and Gregg v Scott exemplifies the general rule that insuperable evidential problems are the claimant’s hard luck.”
“It is work that happens – it is preparation of work that happens on site”
“Hollandia must bring in replacement labour in sufficient numbers to ensure erection of steel and precast are brought back to maximum production asap”
“I am saying that there is a lot of talk of missing steel. There is very little in the way of specifics as to what actually was missing. As far as I am aware there are not any detailed programmes at that time which would show the erection sequence and identify which pieces they needed to draw off and at what point. So I can well imagine that in those circumstances, if they suddenly find that there is a piece missing, it may well cause problems. What does surprise me is that, with a lot of steel like this, there isn't a detailed call-off schedule saying which pieces are needed and when, and from that schedule you could identify then are there any particular critical pieces that we need to get fabricated straightaway. I have not seen any of that information. All I see is a general statement saying there were missing pieces of steel.”
“the parties will liaise during the 28 day notice period with a view to securing alternative employment for as many of the Sub-Contractor’s site employees as possible and ensuring an orderly handover of the works with due respect for consultation and notice requirements.”
“As I said yesterday, steel that was erected on the job, you could see there was no problem with that, it was easy for somebody to go out and check it was there. Similarly, steel at East Lane, I acknowledge we have got delivery schedule here. Again, that wasn't a problem, you could go down to East Lane and you could identify the steel. The problem was with all of the information relating to the offsite steel. We were provided information by Cleveland Bridge, but in the coming weeks and months, it became very clear that that information was incorrect and inaccurate.”
“As soon as CBUK left the project at the end of July 2004 there was a large commotion on site with a lot of steel being moved by Fastrack, the labour supplier employed by Hollandia for erection works. Steel seemed to be being moved in all directions between the pitch, the outer perimeter and East Lane. This lasted for several months.”
“656. However, as the preceding sections demonstrate, the many thousands of breaches by Mott MacDonald of its obligations in the provision of civil and structural engineering services, and the wholly deficient nature of the design of the steelwork, meant that Multiplex’s contingency was eroded due to the general delays and disruption experienced as a result and, ultimately, the Project was critically delayed. “657. As is set out in the preceding chronology Multiplex made numerous attempts to re-programme the works, change the construction logic and thereby ameliorate the affect of any ongoing delay. In particular, Multiplex had devised a 32 month programme in or around late 2003 to complete the works and made several material changes to the construction methodology, including the change to the method of erection of the roof, in an attempt to mitigate the effect of the delay and accelerate the works. “658. Ultimately, these attempts failed in or around mid to late 2005 when it became impossible for Multiplex to complete the works by January 2006. “659. In fact, as has been well documented, the stadium did not achieve practical completion until March 2007 and therefore the project was thus critically delayed by approximately 1 year and 2 months, when measured against the client programme of completion by30 January 2006 . “660. Multiplex acknowledges that critical delay such as that which occurred at Wembley is invariably caused by a range of factors. At Wembley, critical delays to the project was partly caused by, inter alia, the repudiation of CBUK of their contractual obligations and leaving site on2 August 2004 for a period of approximately 2 months (during which very little steel erection activity occurred) and CBUK’s poor performance generally. “661. However, having acknowledged the role of some other factors in the critical delay to the Wembley stadium project, Multiplex is firmly of a view that by far the largest cause of ultimate critical delay to the project was the defective design of the steelwork and/or the defective performance by Mott MacDonald of its obligations to provide civil and structural engineering services.”
“666. Finally I wish to say something directly to the parties. It has been obvious to me that no settlement could be achieved whilst certain fundamental issues were unresolved. The present set of preliminary issues was drafted by counsel precisely in order to break that deadlock. Both parties have had a measure of success on the preliminary issues. Neither party has won an outright victory. With the assistance of this court's decision on the ten preliminary issues, it may now be possible for both parties to arrive at an overall settlement of their disputes, either through negotiation or else with the help of a mediator, who is unconnected with this court.” “667. I commend this course to the parties, if only as a means of saving costs and management time. If, however, the parties would prefer the court to resolve all remaining issues, then so be it. This court encourages sensible commercial settlements, but nevertheless stands ready to determine every issue which the parties wish to litigate”
“In the event that the Subcontractor elects the option to provide to the Contractor a Retention Bond in lieu of the Retention, the Sub-Contractor shall procure and deliver to the contractor a Retention Bond for an amount equivalent to 5% of the SubContract Sum, reducing to 2.5% of the Sub-Contract Sum at Practical Completion … and following receipt of the Retention Bond …the Retention deducted by the Contractor from payments shall be paid to the Sub-Contractor.”
“Now that the Project is complete, CB accepts that CBUK are entitled to the release of the retention levied against the valuations under Schedule 2. However, it is Multiplex’s case that the retention monies withheld can be applied to reduce the sums due to Multiplex by way of damages under Scott Schedule 4.”
“The Sub-contract Documents provide for retention at 5%. In fact, the parties agreed that CBUK would provide a retention Bond in the amount of£1.515 million and no retention would be deducted from CBUK’s interim valuations up to the amount of the Bond, then 5% retention thereafter. … In fact retention is a complete irrelevance to the valuation exercise which the court had to undertake. Retention is obviously applicable in relation to interim valuations as work progresses. Since, however, this is effectively a Final Account calculation, retention is irrelevant.”