“2.0 GENERAL 2.1 The works described listed in Section 3.0 and shown on the drawings contained in Appendix A of this Developer’s Specification are to be carried out by the Developer, Liberty Property Limited Partnership, on behalf of and to the existing Bombay Palace Restaurant defined as the Bombay Palace Works. 2.2 The works will be carried out as part of the overall redevelopment works for the site known as 2 Hyde Park Square, London 2.3 Whilst the Bombay Palace Restaurant will continue to trade during the currency of the construction works, the Developer’s Works will be carried out during the period illustrated on the overall programme included in section 5.0 [That programme showed a “closure period” of 4 weeks.] 2.4 The Bombay Palace will close for an agreed period during the period referred to in 2.3 above. 2.6 It is also noted that the Bombay Palace intend to carry out their own refurbishment works to the restaurant facility – the programme for these works is to be determined. 2.9 The drawings listed in Appendix A at “A3” are to be read in conjunction with Section 3.0 of the document 2.11 Notwithstanding the scope of Bombay Palace works as detailed in Section 3.0 the Developer confirms that all works will be carried out in accordance with the approved planning consent, current building regulation and relevant construction standards and codes of practice. 3.0 SCOPE OF BOMBAY PALACE WORKS The works listed below are to be carried out by the developer at the developer’s cost. To be read in conjunction with the drawings included in A3 format in Appendix A. MECHANICAL & ELECTRICAL WORKS To enable the proposed alterations to the main building it will be necessary to relocate plants and divert services associated with the Bombay Palace as follows: – Refer to HPF drawing 6458 – 4101 1. Kitchen Extract System (technical information to be provided to Bombay Palace) The existing kitchen extract plant is to be relocated to a plant room positioned on the first floor of 2 Hyde Park Square. The ductwork from the kitchen is to be replaced from the point of roof penetration and up to the connection to the new extract plant and is run beneath the green roof. The exhaust duct from the AHU is to discharge through a louvered facade via an attenuator at first-floor level over the proposed green roof… Restaurant Extract System The restaurant extract is to be adapted to allow relocation of the point of discharge. Relocation is required to avoid short circuiting of restaurant supply and extract air as the introduction of a green roof will enclose both points of inlet/outlet in the same “room”
“… it does seem to me that, standing back from this case, a perfectly plausible outcome would be that these works were variations to the contract. I understand that the claimants are concerned that if these works were treated as part of the contract works, albeit as variations, there would be a concern that that would then mean that the restaurant closed for more than four weeks because of the works that Bombay Palace had requested, and that because they were variations to the contract, the contract provisions would kick in and that the claimants would then be obliged to pay Bombay Palace£40,000 a week. But that simply cannot be right as a matter of basic contract law. If a defendant orders works which delays a contract, then unless there is an extension of time provision which covers it – and here there is not – time is rendered at large and the sort of payment of a sum due as a delay, such as the£40,000 would not be due. So the claimants concern is completely ill founded.”
“In order to assess the value, if any, of a change it is necessary to understand (a) what it is the contractor was originally obliged to carry out under the agreement; (b) the work in fact carried out; (c) how or why the change arose and (d) any matters agreed between the parties as to the basis upon which the original work or changes were to be carried out. Hence, ordinarily it would not be sufficient to identify an additional amount incurred. …..”
“Q: I suggest to you that at the time that you prepared your original report, let us put it this way, the report was far from ideal in terms of its content: would that be fair? A: At the time I prepared this report, I was asked on the Tuesday night to prepare it and I finished it on the Friday. So, in the two or three days I had, I did not have time to add the cross-references that I would ordinarily like to make to witness statements and documents and to look closely at whether there were points on liability that I needed to make ….”
“1.4.2.1 FA Comment: the Joint Statement is intended to be read alongside the respective individual reports of the Quantum Experts 1.4.2.2 RC comment: matters agreed replace those in my report unless otherwise stated.”
“(i) Is the work actually carried out within the scope of the Agreement, read in the light of the admissible background material? If so, the item fails. If not, go to question (ii). (ii) Is the work actually carried out within the scope of the Agreement as developed by design development or as varied in accordance with clause 5? If so, the item fails. If not go to question (iii) (iii) Have Liberty identified in evidence a request from BP for additional work? If not, the item fails. If so, go to question (iv). (iv) What elements of the work actually carried out were required as a result of this request? (v) What is the value of the work identified in answer to question (iv)? (vi) What credit, if any, is required against such value to reflect what Liberty were obliged to do under the Agreement in any event?”
“BP’s case is that, as part of the design development process that was expressly anticipated by the Agreement, it presented a design proposal for the new restaurant ceilings Liberty had agreed to provide at its cost. Without any suggestion that there would be an additional cost to pay (either for the ceiling itself or for the mechanical and electrical works that are the subject of this item) HPF produced a revised design for the air conditioning and ventilation works to the front of house areas that was different to the scheme envisaged by the Specification … BP’s case is that this was a variation to the scope of work that had already been allowed for under the Agreement specification. ….. The work was therefore a clause 5 variation and, absent any agreement to pay for this variation as there was for Item 1, this was a cost that Liberty is liable for under the Agreement.”
“21. The proposed changes to the kitchen redesign will necessitate an increase to the hot water storage. It is proposed that this will be served by 3 cylinders providing 750 litres storage capacity. 22. There will be a corresponding need to upgrade the existing boiler to satisfy this increased demand.”
“I presume that, but there was never an alternative provided by HPF to show how the designs would work. So, the answer is, yes, it was a desire of Bombay Palace to have the coffer on the feature lighting and as much higher ceilings as they required. Yes, that would have an effect on the mechanical and electrical, but no one ever came back and said HPF has said, “Actually you have to work around these parameters”.”
“You will contact Trevor Denby of Capital security and e-mail him the fire and burglar alarm system that we discussed for his comments on the same.”
“Liberty requested early access to the restaurant kitchen area to install grease traps ….”
“Removal of existing public toilet accommodation (WCs, wash basins, vanity units, etc.) and refit in accordance with the agreement between Liberty and the Bombay Palace Restaurant.”
“Further to our recent meeting we confirm the issues discussed … 8 The terrace floor is stone not resin bonded aggregate …”
“No. The writing on the inner face of the lobby had a black – not that it was granite, but it had a black stone panel on it. We are talking about the original …..”
“To re-cap in general terms, we would, inter alia, propose to undertake at our expense the following works to your property. ….. 8) Provide a new electronically retractable canopy to the entire external elevation of the restaurant ….” restaurant ….”
“…. my understanding at the meeting was that we would be provided a design for the restaurant awning as understood by Liberty, with retractable facility in the patio. Liberty to instruct accordingly and the variances to be left to QS.”
“In the meeting Tony Guest had indicated that the cast iron pipes will be removed and the fore (sic) the bulkhead can be higher, giving us the advantage of the higher ceiling. Therefore we would be going for new partitions as the existing ones will be shorter than the required height.”
“Liberty was required to provide water, lighting and small power to the bar terrace area… As shown on DSD away 15 E, issued on 28.11.11, and HPF drawings 6458/1102 Rev C, PUR 3402/5010 rev C3 at 5020 Rev C3”
“changes to the supply duct sizes required due to the increased airflow through these ductsfollowing confirmation of the Lockhart design.”
“Much of the issues relating to the condition of the walls was due to alterations and filling undertaken by Pochin in carrying out libertine works and the general condition was more than what one would have expected following works that had been undertaken and was a risk that was the liability of Liberty.”
“We’ve discussed in the past the disparity in floor levels across the restaurant area, and identified that the bar area is generally overall 30/40mm lower than the rest of the ground floor space. It simply isn’t a matter of a gradual fall across this area, but an almost pronounced step down from around the reception area. [Pochin and Hawkins Brown] are so conscious of the sensitivity and importance being played to floor to ceiling heights, that they are looking for guidance and instruction on how we should deal with this abnormality. To do the “proper job” we really should level the floor over the whole bar area, but this would impact upon the ceiling heights. Alternatively, we could “feather out” in the preparation for the floor tiling to make the situation less pronounced. The last alternative would be to simply relay the tiles as before, but this is not doing the job justice. Any guidance on how we should proceed would be greatly appreciated.” (ii) Mr Brown responded on28 February 2012 as follows: “We have spoken to the Bombay Palace and are of the opinion reducing the floor to ceiling heights would be detrimental and would suggest feathering the floor to take out the step would be the most appropriate…”
“I spoke to the guy installing the electricals to the (I assume boilers) and asked why such large “boxes” were required and placed in the middle of the bottle store. Even he could not understand the reasoning behind the specification. The bottle store is now virtually unusable. Any suggestions as to how and where we can install the deliveries and existing supplies?”
“I understand the point you make in the email entirely. We are however all faced with having to put the controls etc. for plant and machinery somewhere. The volume of this equipment is a function of the totally comprehensive refit restaurant has had. This is a fact that we must not overlook. That being said however, David is on site on Wednesday and with the help of this team will look to see where we can possibly help gain further storage for you, as we, as ever, want to try and help if we possibly can.”