Williams Tarr Construction Ltd v Anthony Roylance Ltd & Anor [2018] EWHC 2339 (TCC)

[2018] EWHC 2339 (TCC)

Case No C50MA040

IN THE HIGH COURT OF JUSTICE

Venue QUEEN'S BENCH DIVISION BUSINESS AND PROPERTY COURTS IN MANCHESTER

TECHNOLOGY AND CONSTRUCTION COURT

Venue Manchester Civil Justice Centre

1 Bridge Street West

Venue Manchester M60 9DJ

Date 14 th September 2018

Before

HIS HONOUR JUDGE EYRE QC

Between

WILLIAMS TARR CONSTRUCTION LIMITEDClaimant

Mr. David Fearon (instructed by Brabners LLP) for Claimant

Mr. Crispin Winser (instructed by Watson Burton LLP) for Defendants

Hearing Hearing dates: 25 th, 26 th, 27 th, 28 th 29 th June 2018

JUDGMENT

HH Judge Eyre QC:

Introduction.

[1]The Second Defendant is a chartered civil engineer and the First Defendant is a company formed by and controlled by him. The Claimant is a construction company and in 2010 it was engaged in construction works arising out of the development of the site of the former Albany Mill in Canal Street at Congleton in Cheshire (“the Site”). The works on the Site included the construction of a retaining wall (“the Retaining Wall”) at the southern end of the Site running roughly parallel to the southern boundary. There is no dispute that in November 2010 there was an engagement whereby the First or Second Defendant was to provide civil engineering services to the Claimant. However, there is dispute as to whether the engagement was of the First Defendant or of the Second Defendant and as to the nature of the engagement. The Claimant says that the Second Defendant was engaged in his personal capacity; that the engagement related to the Retaining Wall itself; that the Second Defendant undertook an obligation to ensure that the Retaining Wall was fit for purpose; and that the Second Defendant breached that obligation causing loss to the Claimant. The Defendants dispute each of those propositions. The Factual Background.

[2]The Site was being developed for housing. However, that development was not a straightforward exercise. The Site was lower than the adjoining land (which was occupied by housing) and itself sloped markedly from South to North (the Canal Street side of the Site). Consequently there was a need for a number of retaining walls and in particular for the Retaining Wall.

[3]The Claimant was engaged as main contractor in March 2010. Initially there were two employers, Terra Nova Developments Ltd and Renew Land (Albany Mill) Limited (“Renew”). The latter was a company which had been formed for the purpose of promoting and packaging the development of the Site but which has now been dissolved. The former ultimately became the sole employer but Renew retained an interest in the Site and continued to be involved on the ground through its director, Lee Dawkin. The Claimant engaged Construction Site Services (UK) Ltd (“CSS”) as its sub-contractor. The Second Defendant provided civil engineering services in respect of the Site (doing this either in his personal capacity or through the First Defendant). The parties were not agreed as to whether the Second Defendant was acting pursuant to an engagement with Renew or as a sub-contractor of CSS. That matters not for the purposes of the present case. It is common ground that the Second Defendant worked closely with CSS and that there was at this stage no direct engagement of either defendant by the Claimant.

[4]The original intention had been that the Retaining Wall should be a blockwork wallbut it was subsequently decided that it would be made of stone-filled gabion baskets. The Defendants say that this was because the Second Defendant had explained to CSS that a blockwork wall solution would not work because of the height of blockwork wall which would have been needed. They say that the proposal that there should be a gabion wall came from CSS. An initial approach to Macaferri Ltd for the provision of gabions had not been productive. An approach was then made to Hy-Ten Limited trading as Hy-Ten Gabion Solutions (“Hy-Ten”) and the gabions were provided by that company. There was considerable dispute before me as to the nature and extent of the Second Defendant’s involvement in the design of the Retaining Wall and as to the respective responsibilities in relation to it as between him and Hy-Ten and those are matters I will consider further below.

[5]The installation of the Retaining Wall was undertaken by CSS and began in late August or early September 2010. In the course of those works a band of running sand was encountered. This meant that the water flows behind the Retaining Wall were greater than had been anticipated. By the middle of October 2010 it was apparent that problems were being encountered in the installation of the Retaining Wall and the response to these included the Claimant’s engagement of the First Defendant or the Second Defendant in November 2010.

[6]The key dispute between the parties is as to the scope of that engagement. The Claimant says that the First Defendant or the Second Defendant was engaged to provide a solution to the problems with the Retaining Wall so as to provide a design ensuring that the wall would be fit for purpose. It says that the Second Defendant proposed a further drain to the south of the Retaining Wall as being all that was needed to enable the Retaining Wall to be fit for purpose. It says that the exchanges constituting the engagement referred to that drain because that was the solution which the Second Defendant had put forward. The Defendants say that the engagement did not require either of them to bring forward a solution to the problems with the Retaining Wall let alone to warrant that the wall would be fit for purpose. Rather the engagement was to design a drain which would address the problems with water inflow so as to enable access to be effected to the rear of the Retaining Wall.

[7]The Second Defendant (whether acting in his personal capacity or through the First Defendant) then provided a design for a drain to the south of the Retaining Wall. There is no suggestion that this design was defective or deficient as a drain.

[8]The work of installing the Retaining Wall continued and it was completed in March 2011.

[9]It is common ground that the Retaining Wall as constructed was defective and that further works were needed. It is also common ground that the Claimant engaged in substantial works, the main feature of which was extensive piling, to address the problems flowing from the defective state of the Retaining Wall although there was dispute as to the precise extent of the works properly attributable to this and as to the precise financial effect upon the Claimant.

[10]The Claimant engaged in an adjudication against CSS contending that the deficiencies in the Retaining Wall were the results of failures on the part of CSS in the course of the construction and installation of the Retaining Wall. The Defendants say that this contention was correct and that the problems were, indeed, the result of failings on the part of CSS. In July 2011 the adjudicator accepted the Claimant’s submissions and declared that the Claimant had been entitled to determine CSS’s sub-contract.

[11]However, the Claimant derived no benefit from its victory in the adjudication. This is because it is common ground that CSS is insolvent. The Defendants say that this is the true reason why the Claimant has now brought this claim against them with the Claim Form not having been issued until 9th August 2016 and pre-action protocol correspondence only having been sent on 22nd August 2016. The Defendants say that proceedings have been brought towards the end of the limitation period in an attempt to find a solvent party from whom to seek compensation. They say that the allegations made against them are inconsistent with the case which the Claimant asserted against CSS in the adjudication. The Claimant says that the claim is properly brought against the Defendants and that it had brought the adjudication against CSS because the Second Defendant had led it to believe that the deficiencies in the Retaining Wall had been caused by that company’s failings in the construction works. The Competing Contentions in Outline.

[12]The Claimant says that the Second Defendant acted in his personal capacity in the dealings with the Claimant. It says that although Hy-Ten provided and designed the gabions used in the Retaining Wall it was the Second Defendant who designed that wall or at least had overall responsibility for its design. The Claimant says that the effect of the dealings in October and November 2010 was that the Second Defendant was engaged to review and redesign the Retaining Wall on terms that he was warranting that in its final state it would be fit for purpose as a retaining wall at the location in question. The Second Defendant is said to have breached his obligations in that the Retaining Wall was not fit for purpose. Further works were needed to provide for retention of the land. These works would not have been necessary if the Second Defendant had performed his obligations properly and the Claimant seeks to recover the cost of the further works together with consequential losses from the Second Defendant. In the Particulars of Claim the recoverable sums were said to total £320,549 but by the end of the trial the Claimant’s position had modified to seek sums of between approximately £235,000 and £300,000 (depending on which of two alternative options was adopted in respect of the extent of the piling works attributable to the alleged breach).

[13]The Defendants accept that there was an engagement in November 2010 but they portray it in rather different terms than the Claimant. They say that it was an engagement of the First Defendant and not of the Second Defendant. They deny that the Second Defendant (whether acting in his personal capacity or on behalf of the First Defendant) had either designed the Retaining Wall or had taken responsibility for its design. The Second Defendant accepts that he produced a number of drawings in relation to the Retaining Wall but says these reflected the design provided by Hy-Ten. He accepts that there was information on the drawings in addition to that from Hy-Ten but says that he had gathered this information from a number of sources and had added it to Hy-Ten’s drawing at the request of the Claimant for the purpose of accurate record-keeping. The Second Defendant’s later drawings were not, it is said, for construction purposes but were records of the Retaining Wall in its “as built” state. The Defendants say that the First Defendant was engaged by the Claimant in November 2010 but contend that the engagement was markedly more limited than that alleged by the Claimant. The Defendants say that the engagement was limited to the design of a drain behind the Retaining Wall. That drain was to address the problem of water inflow to the Site with a view to enabling access to the rear of the Retaining Wall. The First Defendant’s obligation was to exercise reasonable care and skill in the performance of that task and this was done with the consequence that there was no breach of contract on the part of either defendant.

[14]The Claimant does not allege any deficiency in the design of the drain behind the Retaining Wall. It follows that the crucial issue is that of the scope of the November 2010 engagement. If that was limited to the design of the further drain then the questions of breach; of the effects of any breach; and of the recoverable losses fall away. The Approach to be taken in assessing the Evidence.

[15]As I have just said the crucial issue is the scope of the November 2010 engagement. The Second Defendant and Mr. Les Parker of the Claimant gave evidence of particular relevance to that issue. Mr. Parker is currently the Claimant’s commercial manager but in 2010 he was the contracts manager running the Claimant’s involvement in the works on the Site. The Second Defendant and Mr. Parker were involved in the conversations and written exchanges culminating in the November 2010 engagement.

[16]Mr. Fearon for the Claimant criticised the Second Defendant’s oral evidence saying that he was guarded when answering questions in cross-examination and that he was not prepared to move from his asserted position even when contemporaneous documents showed that such position might be incorrect. For his part Mr. Winser on behalf of the Defendant criticised Mr. Parker’s evidence saying that he also was not prepared to move from a pre-existing party line.

[17]I am entirely satisfied that neither the Second Defendant nor Mr. Parker was deliberately seeking to mislead me. However, there is a degree of force in the criticisms made of the evidence of each man. Each appeared to have reached a fixed view about matters and to be unable or unwilling to countenance any suggestion that matters might have in fact been more nuanced than he had said. Mr. Parker was concerned to place emphasis on what he believed to be normal practice and on the rôle he felt a civil engineer should take rather than on the details of the Second Defendant’s actual involvement and, as I will explain below, would not move from an assertion as to the extent of Hy-Ten’s involvement which I have found to be unrealistic. For his part the Second Defendant was at great pains to minimise his involvement in the designing of the Retaining Wall: an approach which at times prevented him from addressing the questions he was being asked and which caused him to place on various of the contemporaneous documents interpretations which were at best strained and at times simply unrealistic. None of that is particularly surprising in that both men were giving evidence in June 2018 about dealings which had begun in early 2010 and where the construction works had concluded in May 2011 with the crucial exchanges occurring in October and November 2010. I repeat that I am satisfied that each man believed that what he was saying in his evidence was correct. However, in assessing their evidence and their presentation in the witness box I have to be very conscious of the fact that both men were inevitably recollecting matters from a particular viewpoint and also to be conscious of the common human inclination to recollect past events as having actually happened in the way in which the person recalling them believes they would, or indeed should, have happened.

[18]In this case there is a further aspect which compounds the effects of the passage of time and of the viewpoint from which these witnesses were recalling matters. This is that the Claimant initially sought redress from CSS contending that the design of the Retaining Wall was sound and that the problems in respect of the wall flowed from failings in the manner of construction. At the very lowest this meant that neither side was initially concerned to consider the nature of the Second Defendant’s involvement let alone the extent to which either defendant was responsible for the problems which had occurred. It is of note that a pre-action protocol letter was not sent until 22nd August 2016. Accordingly, when giving evidence about the involvement of the Second Defendant and about the dealings in the Autumn of 2010 both Mr. Parker and the Second Defendant were giving evidence not about matters which they had kept constantly in mind since then but about matters which they had put on one side for a significant period and which they had then later turned to recall.

[19]In those circumstances I have concluded that I must exercise considerable caution when considering the evidence of both Mr. Parker and of the Second Defendant in relation to the dealings in October and November 2010. I must look at that evidence through the prism of the contemporaneous documents; of those actions which are accepted or clearly demonstrated to have happened; and of inherent likelihood. To the extent that the contemporaneous documents show a picture different from that depicted by either witness it is the former and not the latter which I should regard as more likely to be an accurate account of what happened.

[20]In the Autumn of 2010 Anthony Pilkington was a director of the Claimant. He was not involved on the Site on a day to day basis but had a more general involvement giving assistance to the team led by Mr. Parker. Mr. Pilkington’s involvement was further limited by the fact that he was away from work for a period until September 2010. Mr. Pilkington’s witness statement was dated 21st February 2018. Mr. Pilkington frankly explained that he had by then been retired from the Claimant’s employment for five years and that he was giving evidence about matters which had happened more than seven years before. Mr. Pilkington had sought to refresh his memory by re-reading some of the Claimant’s documentation. I am satisfied that Mr. Pilkington was seeking to give honest evidence based on his recollection but in those circumstances it is not surprising that he did not have a firm recollection of the details and so his evidence must also be assessed carefully against the contemporaneous documents.

[21]The involvement of the Claimant’s other witnesses in the events of October and November 2010 was peripheral at best and I derived little assistance from their evidence in determining the key question which was the scope of the engagement made at that time.

[22]Mr. Lee Dawkin gave evidence for the Defendants. His involvement in the development had been through Renew. In large part Mr. Dawkin’s evidence set out his understanding of the arrangements in general terms. I am entirely satisfied that Mr. Dawkin was giving an honest account and was striving to recollect what had happened. Indeed Mr. Fearon described him as being an impressive witness. I agree with that assessment but care must nonetheless be taken in deciding how much weight I can place on Mr. Dawkin’s evidence. That is because not only was Mr. Dawkin giving evidence about events happening some years ago and which he would not have had cause to recall for some time but he was also in large part setting out the understanding which he had derived from observing, hearing, and talking to others. I have to keep in mind the possibility that such understanding was mistaken or that it has been coloured by the passage of time. Accordingly, I have exercised caution in respect of Mr. Dawkin’s evidence and again considered it in the light of the contemporaneous documents. However, as will be seen, I did find Mr. Dawkins’s evidence to be helpful and significant evidence in determining the context of the exchanges which effected the November 2010 engagement. The Extent and Nature of the Defendants’ Involvement in the Design of the Retaining Wall.

[23]The parties attached considerable weight to the questions of the extent of the Second Defendant’s involvement in and responsibility for the design of the Retaining Wall in the period before the November 2010 engagement and of the work done in that respect after the engagement. These matters were addressed in detail in evidence and in counsels’ submissions.

[24]The Claimant’s position was that Hy-Ten’s involvement was limited to the design of the gabions themselves and that the Second Defendant was the designer of the Retaining Wall and/or was responsible for the design in the period before November 2010. It says that the Second Defendant’s production of drawings entitled “Construction” in July and August 2010 show his involvement in the designing of the Retaining Wall before his engagement by the Claimant. It also says that the production of more such drawings in December 2010 show this involvement in design continuing after the engagement.

[25]The Claimant says that the Second Defendant was the designer of the Retaining Wall. It goes on to contend that this should be regarded as making it more likely that he would in November 2010 have agreed to provide a solution to the problems with the Retaining Wall and to warrant that it would be fit for purpose. It also says that the work done after November 2010 demonstrates the Second Defendant’s understanding of his rôle and is to be taken into account in the interpretation of the exchanges which constituted the engagement.

[26]The Defendants say that the Second Defendant (they say acting through the First Defendant) had originally agreed with CSS to provide a design for a retaining wall but that this was in the context of the original intention that there be a blockwork or masonry retaining wall. The Second Defendant was not the originator of the proposal to construct the Retaining Wall of gabions and was not the designer of that wall. They say that Hy-Ten was the designer of the Retaining Wall and not just of the gabions. After the decision was made to use gabions the Second Defendant’s rôle was not that of designer. The drawings which were provided were to incorporate in one document information from Hy-Ten and from other sources and the later drawings although entitled “Construction” were a record of the wall as built. In that regard I note that it was accepted by the Claimant’s structural engineering expert that the drawing produced by Hy-Ten contained insufficient information to enable that drawing to be used for construction purposes.

[27]The Defendants contend that the limited nature of the Second Defendant’s involvement in the Retaining Wall and the fact that he was not the designer of it are factors making it less likely that, when engaged by the Claimant, he would have accepted responsibility for providing an overall solution to the problems with the Retaining Wall let alone would have warranted that it would be fit for purpose.

[28]The nature and extent of the Second Defendant’s involvement in the design of the Retaining Wall before the engagement by the Claimant are relevant as part of the context of that engagement. However, in my judgement their relevance and importance are markedly less than either side asserts. The November 2010 engagement was effected by an exchange of e-mails albeit in the context of oral conversations in the same period. Account has to be taken of the context of the exchanges as I will explain below but the Second Defendant’s earlier involvement is only part of that context and in my assessment an aspect of that context which provides only limited assistance in assessing the effect of the parties’ dealings in November 2010. The previous involvement of the Second Defendant was not pursuant to any agreement (whether on his part or on the part of the First Defendant) with the Claimant. The Second Defendant was acting at that time pursuant to an agreement with CSS and/or Renew. So even if, as between the Defendants and CSS and/or Renew, the Second Defendant was the designer of the Retaining Wall with obligations in that regard to those parties careful consideration would still be needed of the language used as between the Claimant and the Defendants to determine whether their exchanges gave rise to obligations to the Claimant in relation to the design of the Retaining Wall. The fact that one or other of the Defendants had such obligations to CSS (if that was the case) would not of itself and without more mean that such obligations were being taken on with regard to the Claimant if the exchanges constituting the November 2010 engagement did not create such obligations. Conversely the absence of an obligation to CSS in respect of the design of the Retaining Wall would not prevent such an obligation arising in relation to the Claimant if the exchanges properly considered had that effect.

[29]I will address below the question of the potential relevance of the post November 2010 dealings between the Defendants and the Claimant to the interpretation of their exchanges in November 2010. It suffices at this point to deal briefly with Mr. Fearon’s contention in respect of the drawings dated December 2010. Those drawings are of potential relevance in considering the Defendants’ obligations to CSS in relation to the design of the Retaining Wall but in my judgement they are, save to that extent, of no assistance in assessing the terms of the November 2010 engagement. Not only do they post-date the engagement but the “client” is stated on the drawings to have been CSS. So in producing them the Second Defendant was not purporting to be acting pursuant to an engagement with the Claimant.

[30]What are the matters which the Claimant said showed that the Second Defendant was the designer of the Retaining Wall or had taken responsibility for the design?

[31]In his oral evidence Mr. Parker stuck resolutely to the position that Hy-Ten’s involvement was limited to the design of the gabions themselves. He did not accept that Hy-Ten had any further involvement in design of the Retaining Wall as a whole. I find that was an unrealistically narrow assessment of the nature of Hy-Ten’s rôle and input. Mr. Parker accepted that the Retaining Wall operated as a system consisting of the gabion baskets and the backfill behind them. The gabions and the backfill behind them were both important parts of that system. For the system to work as a retaining wall it was necessary not only for there to be properly constructed and designed gabions but also appropriate backfill was needed and the wall composed of the gabions had to be built at the correct angle. Thus Hy-Ten produced drawing N1803 dated 29th July 2010 which had the title “details of gabion retaining wall” and which not only specified the number and type of gabion to be used but laid down requirements in respect of the backfill and provided that the wall was to be at angle of 10⁰ from the vertical. In July 2010 the Claimant sought a collateral warranty from Hy-Ten. It is of note that although Hy-Ten declined to provide such a warranty saying that it was “a materials supplier” it did offer to arrange for “our design” to be covered by professional indemnity insurance for a fee. Hy-Ten subsequently withdrew that offer saying “the wall has not been built in accordance with our design”. On 20th April 2011, in a conversation with the Claimant’s Peter Warburton, Stephen Lisle of Hy-Ten said that Hy-Ten would not accept responsibility for the Retaining Wall because it took the view that the Second Defendant had amended its design. It is of note that Hy-Ten appears to have accepted that it provided a design for the Retaining Wall as a whole and that it was only the perceived alteration of that design which caused Hy-Ten to decline to accept responsibility for it and to regard the Second Defendant as being responsible. Arshad Chandul was Hy-Ten’s project engineer with involvement in this matter. Mr. Chandul’s evidence was admitted under the Civil Evidence Act 1995 and did not impact greatly on the core issues in the case. However, it did throw some light on the nature of the work done by Hy-Ten with Mr. Chandul explaining that information provided by a customer would be used by “the design team” at Hy-Ten to “produce a design, CAD layout and calculations for the gabion wall.” This shows that at the very least Hy-Ten’s rôle extended considerably beyond the design of the gabion baskets. Mr. Parker’s insistence that Hy-Ten’s involvement was limited in this way, unrealistic as I found it to be, indicated in my judgement either the limitations of Mr. Parker’s understanding of what was involved in the design of the Retaining Wall or the extent to which his evidence, honestly given as it was, had been coloured by the views he had formed with hindsight.

[32]The main thrust of Mr. Parker’s contention that the Second Defendant was responsible for the design of the Retaining Wall was that the Second Defendant had been the only civil engineer involved in the project. Mr. Parker said that in those circumstances he would have expected the civil engineer to be responsible for the design of a structure such as the Retaining Wall. In his witness statement Mr. Parker said that in those circumstances “it was naturally the case (and I understood) that everything in terms of design went through [the Second Defendant]”. In this regard Mr. Parker was not suggesting that he had direct or personal knowledge of the Second Defendant’s actual involvement nor of the arrangements between the Defendants and CSS. Rather he was setting out his understanding of what he would have expected the arrangements to have been. Mr. Parker was not a party to the arrangements between the Defendants and CSS and so cannot say whether what he regarded as having been the normal approach had been adopted as between them. I have already said that I found Mr. Parker’s contention that Hy-Ten’s involvement was limited to the design of the gabions themselves unrealistic. In those circumstances his evidence does not advance matters on this issue.

[33]Mr. Fearon for the Claimant placed considerable emphasis on the drawings produced by the Second Defendant. He said that these showed the Second Defendant producing drawings to be used in the course of construction of the Retaining Wall and so demonstrated that the Second Defendant was the designer of the wall. The Second Defendant said that the drawings were for the purposes of record keeping being variously the result of the addition to Hy-Ten’s drawing of information obtained from other sources (to ensure all the relevant information was on one drawing) or of a recording of the wall as built. I found this explanation unpersuasive. It is of note that the drawings were entitled “Construction” and that the angle of the wall as shown on them appears to correspond with the intended angle of 10⁰ from vertical rather than with the as built situation in which the wall was much closer to the vertical. I find that the drawings were intended for use in the construction of the Retaining Wall. However, that does not necessarily mean that the Second Defendant is to be regarded as having been the designer of the Retaining Wall in circumstances where the drawings were based on those provided by Hy-Ten and were modifications of that company’s design.

[34]Mr. Fearon pointed to the minutes of a design meeting held on 8th April 2010 and to the fee proposal which the Second Defendant sent following the meeting in which he quoted for work including the design of “retaining walls and bases”. That material did not assist on the matters in issue. The Defendants accepted that the original intention had been for the Second Defendant to produce designs for the various walls but at that stage it had been thought that the Retaining Wall would be a blockwork wall. The dispute between the parties in this regard is whether the Defendants or either of them remained responsible for design once the decision had been taken to use a gabion basket system.

[35]On 5th November 2010 there was a meeting at the Claimant’s head office attended by the Second Defendant, Mr. Dawkin, Mr. Parker, Mr. Pilkington and others. The minutes are in somewhat opaque terms. They record that the Claimant had tendered on the basis of particular ground conditions set out in a report obtained at the outset and that it was necessary for the design team to show why the conditions encountered differed from those in that report. In that meeting the Second Defendant “outlined his brief for the initial project with regard to the retaining wall and foundations.” He went on to explain that a band of clay had been encountered and that he had recommended the removal of this band so that the wall could rest on “good ground bearing sand strata”. The clay band was removed and the Retaining Wall as built rested on the sand strata. This does show that the position and foundation of the Retaining Wall were in part the result of actions taken in response to advice from the Second Defendant. As with the preceding point it does not assist greatly in deciding whether the Second Defendant had responsibility for the design of the Retaining Wall in its final form involving gabions. The Second Defendant’s e-mail of 8th October 2010 has to be read in the context of the e-mail from Mr. Dawkin to which it was a reply and of the exercise being undertaken at that time. The Second Defendant was providing an explanation of what it was about the ground conditions which had meant that the works being performed were different from those which had been envisaged originally. The Second Defendant was there explaining why there had been a change from the plan to build a blockwork retaining wall to one involving the use of gabions. He was not indicating that he was responsible for the design using gabions once the decision had been taken to adopt such a design.

[36]Sean Keyes gave expert structural engineering evidence for the Claimant. In his report Mr. Keyes addressed the question of whether the Second Defendant had “design responsibility” for the Retaining Wall before the November 2010 engagement. Mr. Keyes set out his opinion as to whether the Second Defendant’s position as a civil engineer and the nature of the dealings meant that he owed a duty of care and had responsibility in respect of the design. Mr. Winser criticised Mr. Keyes for engaging in this exercise saying that it went beyond the proper scope of his rôle as an expert giving opinion evidence. I do not accept that Mr. Keyes falls to be criticised in that regard. He was instructed to give an opinion on those matters and he gave an opinion in performance of his instructions. Even though Mr. Keyes is not to be criticised in that regard his evidence does not assist on this issue. The issue of the extent of the Defendants’ responsibility for the design of the Retaining Wall is a matter for me to determine in the light of the factual evidence and the legal conclusions flowing from my findings of fact. Mr. Keyes’s opinion as to the responsibility and duty which fell on the Defendants and in particular on the Second Defendant does not advance matters at all.

[37]The Defendants’ position was that the design of the Retaining Wall had been taken out of their hands when the decision had been made for that wall to be made of gabions. I have already explained that I do not accept the Second Defendant’s evidence that the drawings of the Retaining Wall which he produced were just for the purposes of record keeping and I find that they were intended to be used in the construction of the Retaining Wall. However, it remains necessary to determine whether considering the evidence as a whole the Second Defendant is to be seen as having been the designer of or as having design responsibility for that wall.

[38]Mr. Winser for the Defendants laid particular emphasis on three aspects of the evidence as demonstrating that Hy-Ten was to be seen as the designer of the Retaining Wall (or at least that the Second Defendant was not its designer). In my judgement each of these matters has considerable weight and provides strong support for Mr. Winser’s contentions.

[39]The first was the nature of the wall as a system the various elements of which had to work together as I have explained at [31].

[40]Next Mr. Winser referred to sundry exchanges of correspondence which he contended showed those involved regarded Hy-Ten as the designer. Of particular note for present purposes are those sent before November 2010 by persons other than the Second Defendant. Thus: i) On 27th July 2010 Mr. Palgrave of Peak Associates (environmental consultants who had carried out ground investigations at the Site) said “I was also under the impression that Hy-Ten are the designers of the wall and are putting their PI against the design”. ii) In August 2010 Mr. Dawkin was in correspondence with Peter Warburton about professional indemnity insurance and said almost as an aside “but Hy-Ten have their PI cover in regards to the wall if this helps”. On 16th July 2010 Mr. Dawkin had e-mailed the Claimant’s Peter Aldred to say that he was going with Bill Quinn of CSS to meet with Hy-Ten. This was after the approach to Macaferri Ltd had been unsuccessful. Mr. Dawkin said “they [Hy-Ten] have a better product, they are designing the wall now”.

[41]Finally, Mr. Winser relied on the actions of Hy-Ten. In my judgement there are two respects in which those actions are of particular relevance. i) First, Hy-Ten produced calculations and an initial drawing with the latter coming on 21st July 2010. The Second Defendant referred these to Mr. Palgrave for comment and forwarded those comments to Hy-Ten. Mr. Lisle confirmed that those comments had been forwarded to Hy-Ten’s engineer. On 27th July 2010 Mr. Chandul sent revised calculations to Mr. Palgrave and to the Second Defendant saying that the revisions had taken account of discussions with Mr. Palgrave and of comments made in e-mails from the Second Defendant. There was then a similar exercise with the Second Defendant raising further queries with Hy-Ten in relation to the revised calculations. This elicited a response on 29th July 2010 in which Hy-Ten said that the revised calculations had been “generated by a dedicated software used for designing retaining wall (sic)” and that account had been taken of the points raised by the Second Defendant and by Mr. Palgrave. In my judgement these exchanges show Hy-Ten producing a design and then revising that design in response to comments. They also show Hy-Ten explaining that they were using software expressly created to design retaining walls. ii) Next, Hy-Ten made a site visit on 15th September 2010. The next day Mr. Lisle sent an e-mail to Mr. Hazeleden of the Claimant and to Mr. Dawkin but not to the Second Defendant. The e-mail is headed “Gabion installation at Albany Mill Congleton”. It refers to the site visit and Hy-Ten’s “inspection of the gabion installation”. It proceeds to say:

“we can confirm that installation thus far was to a good standard and was in accordance with our assembly guidance. It is important that as the build continues that the batter on the face is maintained as per our design and that the horizontal joints are laced with continuous lacing also any temporary ties should be removed.”

In my judgement this e-mail is significant. That fact that it was sent to the Claimant and to Mr. Dawkin but not to the Second Defendant is noteworthy as an indication of the persons to whom Hy-Ten regarded itself as being responsible. Moreover, it demonstrates that Hy-Ten was addressing the system as a whole and not confining its concerns to the contents or design of the gabions albeit the main focus of its attention was on the gabions.

[42]I remind myself that the Second Defendant and Mr. Parker were both giving evidence about events in 2010 and in circumstances where the question of responsibility for the design of the Retaining Wall has become of significance in a way which was not previously the position. I also remind myself of the importance to be attached to the picture which emerges from the nature of the Retaining Wall as a system combining various elements which had to operate together; from the contemporaneous documents; and from the actions on the part of Hy-Ten. In the light of that material I find that although the Second Defendant was more closely involved in decisions about the design of the Retaining Wall than he now accepts or recollects he was not the designer of that wall. I find that the Second Defendant’s involvement in that regard was very much more limited than the Claimant now alleges. I find that the most likely analysis of the arrangements as between CSS and its contractors was that there was no one person with overall responsibility for the design and that to the extent that there could be said to have been a principal designer that would appear to have been Hy-Ten. Although others may also have contributed to the final design of the Retaining Wall Hy-Ten was the originator of the design and in substance the design was Hy-Ten’s. The Second Defendant produced drawings which were used and intended to be used for construction purposes but that was in a context where he was developing the drawing produced by Hy-Ten and adding material to it so that it could be used for construction. It suffices for present purposes for me to conclude that as between the Defendants and CSS the Second Defendant was not the designer of the Retaining Wall and that neither Defendant had accepted overall responsibility for the wall’s design.

[43]It follows that I reject the Claimant’s contention that the exchanges constituting the engagement in November 2010 are to be interpreted in a context where one or other Defendant was the designer of the Retaining Wall. It is possible that the Claimant believed that the Defendants’ involvement in or responsibility for the design was greater than was in fact the case. However, on the balance of probabilities I find that there was no such belief. I make this finding in the light of the contemporaneous exchanges set out above indicating Hy-Ten’s rôle and of the fact that the Claimant was party to a number of those exchanges. Moreover, I have regard to the extent to which I have concluded that Mr. Parker’s evidence is likely to have been coloured by the effects of the passage of time and the viewpoint from which he is now considering matters. Even if the Claimant had held such a belief at the time there is no basis for a conclusion that either defendant was aware of it let alone that the Defendants or either of them entered the engagement with the Claimant on that footing. The Party engaged by the Claimant.

[44]It is common ground that in November 2010 the Claimant engaged either the First Defendant or the Second Defendant to undertake civil engineering design works. The Claimant’s stance as set out in the Particulars of Claim could be described as having been neutral as to whether the party being engaged was the First Defendant or the Second Defendant in his personal capacity. Indeed, at that stage the claim was asserted primarily against the First Defendant with the Claimant pleading that “if and to the extent that the Second Defendant is held to have contracted with or carried out any work for the Claimant as an individual rather than through the First Defendant then the Claimant repeats all relevant claims and allegations made below against the First Defendant as though they had been made against the Second Defendant”. However, by the time of the Reply and still more by the time of trial the Claimant’s stance had developed and its primary case then was that the Second Defendant had contracted with it in his personal capacity. The Defendants asserted that all dealings had been through the First Defendant and that the Second Defendant had not acted at any point in his personal capacity.

[45]There was no dispute that this question was to be determined by an objective analysis of the written exchanges and of the external actions of the persons concerned.

[46]The First Defendant was incorporated in 2005 and in his witness statement the Second Defendant said that “since then I have always contracted through my company”. However, in his oral evidence the Second Defendant frankly accepted that he made no reference to the company on his letterheads or in other correspondence. He explained that formerly civil engineers had not been allowed to operate through limited liability companies. He said that even when this became permissible he believed it was “frowned upon” by the Institute of Civil Engineers and that he believed civil engineers tended not to put “limited” on their letterheads. Answering questions from me the Second Defendant explained that he had thought it looked more professional for his letterheads to make no reference to a limited company. All the fees received were processed through the account of the First Defendant but the Second Defendant accepted that looking at his letterhead there was nothing to indicate to anyone who was dealing with him that they were dealing with a company.

[47]The only reference in the evidence of the Claimant’s witnesses to the question of whether the First Defendant or the Second Defendant was being engaged appears in the statement of Mr. Pilkington. He said that he was not aware that the Second Defendant had a limited company and that his correspondence with the Second Defendant was addressed “to the same details as set out in his letter-headed paper which made no reference to a limited company.”

[48]The documents strongly support the position that the external appearance was that of the Second Defendant undertaking work in his private capacity. Thus the Second Defendant sent e-mails from the address:

“Anthonyroylance@yahoo.co.uk”

. Hard copy correspondence was sent on a letterhead bearing the heading “Anthony Roylance, Chartered Civil Engineers & Construction Consultants” and giving as a correspondence address the office from which the Second Defendant undertook the work. That office was not the registered office of the First Defendant. Moreover, the Second Defendant signed correspondence with his name in typescript above the following legend:

“Anthony Roylance Eur.Ing, A.Roylance, C Eng MICE Chartered Civil Engineer”

Eur.Ing, A.Roylance, C Eng MICE Chartered Civil Engineer”

Eur.Ing, A.Roylance, C Eng MICE

[49]In August 2010 the Second Defendant provided to the Claimant a copy of his Certificate of Professional Indemnity Insurance which stated that the insured was “Anthony Roylance” and that the business was that of “Chartered Civil Engineers & Construction Consultants”.

[50]The fee proposal of 18th November 2010 was sent from the Anthonyroylance@yahoo.co.uk address and was signed “Tony”. The invoices rendered by the Second Defendant, including those rendered to the Claimant on 17th December 2010 in respect of the November 2010 engagement and a subsequent invoice of 28th March 2011, bore the same heading as the other paperwork. They also stated “payment should be made by cheque to Anthony Roylance.”

[51]The documents already mentioned emanated from the Second Defendant. It is also of note that the Subcontractors Payment Certificates issued by the Claimant were addressed to “Anthony Roylance”.

[52]Mr. Winser argued that the documents did not all point one way and that there was material which supported the contention that the Second Defendant was acting through the First Defendant and that this was apparent to others. In that regard he referred to: i) The repeated use of the plural in the documents coming from the Second Defendant. Thus the letterhead referred to “Chartered Civil Engineers & Construction Consultants”. The report of 9th November 2010 begins “we were appointed as civil engineering consultants for the above project …” and the report repeatedly uses “we” to refer to the work done by the Second Defendant. Similarly, the e-mail of 19th October 2010 from the Second Defendant to Mr. Parker sets out “our findings” and recites the opinion “we” have and the recommendation “we” make. However, this usage is not consistent throughout the correspondence and it is of note that the fee proposal of 18th November 2010 is said to contain “my breakdown of additional costs”. ii) The descriptions of attendees given in the minutes of the Progress Meetings repeatedly (although not invariably) describe the Second Defendant as “Anthony Roylance (AR) – Anthony Roylance Structural (ARS)”. iii) Mr. Winser placed considerable emphasis on the fact that on 14th March 2011 Peter Warburton of the Claimant sent the Second Defendant and other contractors a collateral warranty for completion. The warranty in respect of the civil engineering work described the covenantor as “Anthony Roylance company number 05477424 [the First Defendant’s correct registration number] whose registered office is at 5 Old Street, Ashton under Lyne … [being the correct address of the registered office]”. Mr. Winser said that this was a powerful indication that the Claimant knew it was dealing with a limited company. The point has some force although the document goes on to say “The covenantor carries on business as a firm of Chartered Civil Engineers and Construction Consultants” so there is a degree of ambiguity as to the corporate status of the covenantor. The document does demonstrate that at March 2011 the Claimant was aware of the First Defendant. There is no evidence of when the Claimant first acquired that knowledge and in particular no indication that it knew of the First Defendant’s existence at the time of the engagement in November 2010. On 16th February 2011 the Claimant wrote to “Anthony Roylance” but the letter was addressed to the First Defendant’s registered office and began “Dear Sirs”. However, the Collateral Warranties Execution Progress Schedule attached to Mr. Warburton’s e-mail of 25th January 2011 had referred simply to “Anthony Roylance” and had given the business address rather than the registered office of the First Defendant. iv) Mr. Winser also made reference to the Drawing Issue and Register disclosed by the Defendants. This bore the heading “Anthony Roylance Chartered Civil Engineers” but at the foot of the page there appear the following words “File: Anthony Roylane (sic) Ltd”. In my judgement this internal document does not advance matters materially and it has to be seen in the light of the drawings issued by the Second Defendant which bore the legend “Anthony Roylance Chartered Civil Engineer”.

[53]I accept the Second Defendant’s evidence that the sums received for his civil engineering work were paid into the bank account of the First Defendant and processed through that company. Indeed I accept that the Second Defendant personally regarded himself as operating through the First Defendant. However, that was not explained to the Claimant or to the other persons with whom the Second Defendant dealt. The company was not referred to on the letterheads which were used nor was it otherwise mentioned in correspondence. It is significant that this flowed from a deliberate decision on the part of the Second Defendant who believed that his paperwork looked more professional if it made no reference to the company. At no time before the engagement was there any express indication to the Claimant that the Second Defendant operated his professional activities through the First Defendant. The exchange of e-mails which constituted the engagement not only made no reference to the First Defendant but rather appeared to be from the Second Defendant in his personal capacity. In those circumstances the engagement was a personal one of the Second Defendant and he and not the First Defendant was the party to the agreement with the Claimant. The Scope of the November 2010 Engagement and the Obligations arising from it.

[54]The Claimant set out its case as to the engagement of the Defendants in these terms at paragraph 14 of the Particulars of Claim:

“By a contract made partly orally and partly in writing, and to the extent in writing contained in email messages passing between the Claimant and First Defendant commencing in November 2010, the First Defendant in the course of its business agreed to carry out some of the structural engineering design works directly for the Claimant (“Contract”). As part of those works it carried out a redesign of the Gabion Retaining Wall it had previously commenced designing for Renew. It did so because the original design it had produced was not suitable for the actual site conditions. Its contract with the Claimant was to amend the design of the wall and associated features including drainage to produce a functioning retaining wall that was fit for purpose for the site.”

[55]The Claimant identified the exchange of e-mails which it said constituted the written part of the contract but did not particularise the alleged oral elements of the contract. As I will explain below I have concluded that the engagement was effected by written exchanges in which the Second Defendant’s e-mail sent at 12.09 on 18th November 2010 was an offer which was accepted by the Claimant’s e-mail sent at 15.02 on 25th November 2010. The oral dealings leading up to those exchanges provided the context for them but were not themselves operative contractually.

[56]In the Particulars of Claim the Claimant proceeded to allege as implied terms that the Defendants would exercise reasonable care and skill and a term that the design would be fit for purpose together with a term that such parts of the initial design of the Retaining Wall as were retained would be fit for purpose.

[57]The Defendants set out their position on the engagement in some detail in the Defence. It suffices to say that they contend that the contract was formed in writing by an exchange of e-mails; that the engagement was one “to design a high level land drain to go behind [the Retaining Wall]”; and that it did not extend to design or re-design work in relation to the Retaining Wall. They accept that there was an obligation to exercise reasonable care and skill in the design of the drain but deny that there was any implied term that the Retaining Wall would be fit for purpose at the end of the exercise.

[58]The parties are agreed that the approach which I am to take to the implication of terms was set out in Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd & another

[2015] UKSC 742

[2016] AC 742

. I have to begin by construing the express terms of the agreement in question. It is only after that exercise has been concluded that the question of the potential implication of terms arises. A term is only to be implied if the implication is necessary to give business efficacy to the agreement or if it is so obvious as to go without saying. In the circumstances of this case the key dispute is that about the scope of the engagement. If the engagement was limited to the design of the further drain then there is no scope for implying a term whereby the Second Defendant warranted that the Retaining Wall would be fit for purpose. If the engagement extended to the design or re-design of the Retaining Wall then (although the point is by no means conceded by the Second Defendant) there would be considerably more scope for a finding either that the engagement was to produce a wall which was fit for purpose or for the implication of a term to that effect.

[59]Mr. Fearon referred me to the decision of the Court of Appeal inMaggs t/a BM Builders v Marsh & another

[2006] EWCA Civ 1058

[2006] BLR 595

. Mr. Fearon contended that in reliance on that decision I should take account of the parties’ actions after the engagement in order to determine what was agreed and in particular the scope of the engagement. I reject that submission. In Maggs v Marsh the Court of Appeal drew a distinction between written and oral contracts. As Smith LJ explained at [24] – [26] in the case of written contracts the rule set out in Whitworth Street Estates Ltd v Miller

[1970] AC 583

applies. When interpreting such contracts the court is to consider the wording of the relevant documents together with their context which can include the parties’ earlier dealings but is not to have regard to their subsequent actions. The task is different when a contract was made orally. In such a case as Smith LJ said, at [26], “determining the terms of an oral contract is a question of fact” and establishing the facts will require an assessment of the evidence which can include evidence of things said and done after the agreement was made.

[60]In the present case the engagement of the Second Defendant was made in writing. Accordingly, I must seek to ascertain the meaning of the terms agreed and must do so by considering the natural meaning of the words used together with their context which will include the dealings leading up to and at the time of the agreement: see per Lord Hodge in Wood v Capita

[2017] UKSC 24

[2017] AC 1173

at [10] et seq.

[61]The Claimant identified three e-mails which it said constituted the written part of the engagement. I must consider a number of further documents in order to determine how the engagement was effected and also to set the contractually operative exchanges in their context.

[62]On 19th October 2010 the Second Defendant e-mailed Mr. Parker. The Second Defendant said that he was writing to confirm “our findings” following a site visit of that day in respect of the Retaining Wall. He said that he had concluded that the problem “lay with the ingress of water” from the band of running sand. He explained his view that the existing low level drain had become blocked and that there had been a build-up of water pressure in the backfill of the wall. The Second Defendant proceeded to “recommend” the excavation of a new drain.

[63]The Claimant’s “Contractor’s Report” dated 28th October 2010 identified “unexpected ground conditions” as a factor causing delay because of the problems of dealing with ground water. It went on to refer to a scheme for the “permanent land drainage to the rear of the retaining wall to deal with additional groundwater flows” as a design matter which was being developed.

[64]That report had been prepared for a Site Progress Meeting held on 28th October 2010. The minutes of that meeting record a pre-meeting at which the Second Defendant referred to the band of running sand and said that this caused concerns about the stability of the Retaining Wall because of the pressures which the ground water from that band would cause to the rear of the wall. The Second Defendant is recorded as having said that there was a need to “channel water away and consider the long-term performance and maintenance issues”.

[65]I have already referred to the meeting held on 5th November 2010. The purpose of that meeting was to find a way of demonstrating why the Claimant was having to deal with different ground conditions from those which had been anticipated. The conclusion of the meeting was that the Second Defendant was to provide a report dealing with a number of matters including ground water and to provide a report identifying the “engineered solutions” to “overcome the retaining wall …foundation designs/formation levels”.

[66]On 10th November 2010 the Second Defendant provided a report. This was supplied to the Claimant and was forwarded by the Claimant to its client although in an e-mail of 17th November 2010 Mr. Parker told the Second Defendant that he had taken the liberty of “slightly tweaking” the report. The report set out the history of the change of plan from a retaining wall made of reinforced blockwork to one of gabions. The report says that the Second Defendant had been requested by the Claimant to visit the Site because the Claimant was concerned about lateral displacement of the Retaining Wall. The Second Defendant says that on inspecting the Site he concluded that the existing drain was not taking the ground water away and so was “allowing a hydro static pressure to build up and displace the wall...”. The report went on to say that the Second Defendant had “been requested to develop a surface water drainage scheme suitable for the conditions encountered.” Both sides rely on this report. The Claimant says that it shows the Second Defendant being asked to address the problem of displacement of the Retaining Wall and shows that he was putting forward the proposed drain as the solution to that problem. The Second Defendant says that it shows that there was an immediate problem of excessive ground water combined with the failure of the existing drain and that the task for the Second Defendant was the narrow one of developing a drainage system. In assessing those points I note that the Claimant does not suggest that either Defendant had been engaged by it at the time of the visit to consider the Retaining Wall. The engagement came in the following exchanges.

[67]On 16th November 2010 Peter Warburton of the Claimant e-mailed the Second Defendant (copying in Mr. Parker) asking him to forward his “fee proposal”.

[68]There was a meeting on Site on 17th November 2010 attended by Messrs Parker and Pilkington for the Claimant and by the Second Defendant. Mr. Quinn was also present on Site at this time but was not party to the conversation between Mr. Parker and the Second Defendant in this regard. I will set out below the evidence of what happened at that meeting.

[69]On 18th November 2010 at 12.09 the Second Defendant e-mailed Mr. Warburton (the Claimant identifies this as the first of the three written elements of the engagement). The text of the e-mail was headed “Retaining Wall” and then stated “as requested please find my breakdown of additional costs at Congleton”. The e-mail quoted amounts for a number of items of work all but one of which are agreed to have nothing to do with the Retaining Wall (including a reference to a re-design of a different retaining wall elsewhere on the Site). The only element which relates to either the Retaining Wall or the new drain is the expression “Re-design of S W drain £500”.

[70]At 12.24 on 18th November 2010 the Second Defendant e-mailed Mr. Parker saying that he was recapping the preceding day’s discussions on site. He said “I was requested to undertake the design and production of working drawings for the surface water drainage system at the rear of the gabion wall. I am to bring the drainage from the rear of the wall for it to be incorporated into the design to be carried out by Peak Associates to the new & existing culverts”. The e-mail then proceeds to refer to works on other parts of the Site. This e-mail is not identified by the Claimant as one of the three documents forming part of the contract between it and the Second Defendant but in my judgement it is both relevant and highly significant. First, it is a contemporaneous record of the Second Defendant’s recollection and understanding of the discussions which had taken place the preceding day on site and as such it is powerful evidence of what was in fact said then. Second, it was informing the Claimant of the Second Defendant’s understanding of the works he was being requested to undertake and so putting the Claimant on notice of the basis on which the Second Defendant was putting forward his “breakdown of additional costs” in the “fee proposal” which had been requested by the Claimant.

[71]At 13.01 on 18th November 2010 Mr. Warburton forwarded the Second Defendant’s 12.09 e-mail to Mr. Parker and to Mr. Pilkington for information.

[72]At 15.02 on 25th November 2010 Mr. Warburton e-mailed the Second Defendant (copying in Mr. Parker and Mr. Pilkington) saying “please proceed with the necessary design works in accordance with your fee proposal.” This is the second of the e-mails said by the Claimant to have constituted the engagement. I agree with this analysis and find that the engagement was effected by the exchange of that e-mail with the Second Defendant’s e-mail of 12.09 on 18th November 2010 such that the Claimant’s 25th November 2010 e-mail operated as an acceptance of an offer made in the 18th November 2010 e-mail.

[73]On 30th November 2010 at 14.25 Mr. Parker e-mailed the Second Defendant at the head of an e-mail chain of the exchanges between the Second Defendant and Mr. Warburton and said “now that Peter has given you the instruction to proceed below [a reference to the e-mail of 25th November 2010] what do you think your timescales will be for completing the outstanding structural design works?” Mr. Parker continued:

“As I see it the following need to be completed: 1. Design and drawings of the “cut-off” drain being constructed behind the gabion wall – I assume you will need Peak’s input to prove that the drain as installed can cope with the groundwater flows.”

The Claimant has identified this as one of the e-mails constituting the engagement. However, that cannot be the position. As the e-mail itself says that the Claimant’s instruction to the Second Defendant to proceed had been given by the 25th November 2010 e-mail which had operated as an acceptance of the Second Defendant’s offer. The 30th November 2010 e-mail is nonetheless an indication of the work which Mr. Parker writing very shortly after the engagement believed the Second Defendant to have been engaged to undertake. Though in that regard I have already explained that the parties’ post-agreement dealings cannot assist in interpreting the terms and scope of a written engagement.

[74]The Second Defendant replied to Mr. Parker’s e-mail at 15.59 the same day saying that he needed flow rates to complete the design of the drain.

[75]On 4th January 2011 there was a further design meeting attended by the Second Defendant, Messrs Warburton, Parker, and Dawkin and others. The minutes recorded that “the upper land drain ie the ‘Dam’ that had been designed by [the Second Defendant] and installed on site was (sic) proved to be more than sufficient to cope with the calculated groundwater flows”.

[76]On 19th April 2011 the Second Defendant e-mailed Christine Taylor of the Claimant saying that the Retaining Wall “proves to be stable when backfilled as confirmed by Coffeys”. Mr. Fearon placed considerable emphasis on this saying that it showed the Second Defendant accepting that he had responsibility for confirming the stability of the Retaining Wall. Mr. Fearon went on to argue that this was indicative of what had been agreed in November 2010. I do not find that the actions in April 2011 assist me in assessing what had been agreed in November 2010. As I have already explained the post-agreement actions of the parties to an agreement are only of assistance in interpreting the agreement or in deciding what had been agreed in cases where there was an oral agreement. Here the engagement of the Second Defendant was effected in an exchange of e-mails and questions about the scope of that engagement are to be determined by reference to the wording of the e-mails seen in the context existing at the time of the exchange. The actions of the Second Defendant five months later do not assist me. This is particularly so as by that time the Claimant was in dispute with CSS and from February 2011 the Second Defendant had been providing the Claimant with material in support of its response to the contentions from CSS.

[77]It is against that background that I am to consider the evidence in which those involved set out their recollection and understanding of the engagement and of the events leading up to it.

[78]In his witness statement Mr. Parker gave evidence of an occasion on 19th October 2010 when he had met the Second Defendant and Mr Quinn of CSS on the Site. He said that he could see that water was running in from behind the Retaining Wall. Mr. Parker said “Clearly there was a significant amount of water and I was told it had to be dealt with quickly (that was obvious to all) and the Retaining Wall could not be progressed until a permanent solution for the Retaining Wall was found”.

[79]In his statement Mr. Parker recounted his recollection of that meeting and of a further meeting on 17th November 2010. He said that on both occasions the Second Defendant was proposing the installation of a second drain at a higher level which would intercept the flow of water.

[80]Mr. Parker’s position was that he understood the Second Defendant to be proposing the second drain as a solution which would resolve any difficulties with the integrity of the Retaining Wall and that the Second Defendant was not confining himself to an arrangement to remove the flow of water. Mr. Parker said that the discovery of a water flow at the back of the Retaining Wall “was not a temporary works/construction issue; it was a permanent design issue in respect of the Retaining Wall’s integrity”. Mr. Parker reiterated his understanding that the Second Defendant “had ownership of the original design for the Retaining Wall”. He believed that the Second Defendant “was looking at the whole Retaining Wall as a design solution for the problems for the Retaining Wall and not just focussing on designing a drain and ‘washing his hands’ of the rest of it”. He said that he was “completely clear” in his mind that the Second Defendant “was looking at the whole of Retaining Wall design and coming up with a solution that worked to resolve the issues that had been encountered and that once the issue had been resolved the wall would work.”

[81]It became apparent when Mr. Parker was cross-examined that this understanding was based on his beliefs that Hy-Ten’s involvement had been limited to the design of the gabion baskets themselves and that the Second Defendant already had responsibility for the design of the Retaining Wall. Indeed, Mr. Parker went further in his oral evidence. He accepted that the Second Defendant’s e-mail of 18th November 2010 was confirming back to him an instruction which Mr. Parker had given the preceding day. Mr. Parker accepted that this instruction referred solely to the provision of a design and drawings for the new high level drain and that there was no specific instruction whether written or oral for the re-design of the Retaining Wall. Mr. Parker explained at that time he “was concerned totally with the drainage”. Mr. Parker said that the requirement for the Second Defendant to address the design of the Retaining Wall was left “unsaid”. Mr. Parker’s belief and understanding that the Second Defendant was to address the design of the Retaining Wall came from his belief as to the Second Defendant’s existing responsibilities and rôle in that regard. Thus he said “you would have expected an engineer to consider other aspects of the whole system and not just look at drainage in isolation”.

[82]In considering the exchanges between the Claimant and the Second Defendant it is of note that Mr. Parker accepted that the engagement of the Second Defendant was “a bit of a rushed job”. This was because the problems with the Retaining Wall were holding up work on the Site generally and so the Claimant was “desperate” for a solution to those problems.

[83]Mr. Pilkington was present at the meeting on 17th November 2010 but he accepted that he could not recall precisely what was said. This is not surprising given the passage of time. It is apparent that the main conversation was between Mr. Parker and the Second Defendant. Indeed, Mr. Pilkington spent a substantial part of his time on the Site that day talking to Mr. Quinn separately. This was deliberate because there had been a problem of some kind between Mr. Parker and Mr. Quinn and Mr. Pilkington was keeping the latter out of the former’s way. Mr. Pilkington confirmed that the problem which had arisen was to do with the flow of water and that the Second Defendant was being engaged to provide a solution to this. Mr. Pilkington said that his understanding was the Second Defendant was being asked to “take his initial design for the Retaining Wall and to re-work it so that it got around the problems encountered with the flow of water…It was to be an adaptation of his original design to accommodate the flow of ground water behind the Retaining Wall”. The effect of Mr. Pilkington’s evidence is that he accepts that the trigger for the engagement of the Second Defendant was the flow of water; that his recollection of the actual discussions is limited; that in any event he was not present for all those discussions; and that his understanding of what the Second Defendant was being engaged to do is based on his belief that the Second Defendant had been the designer of the Retaining Wall.

[84]The Second Defendant set out his position in this regard in short terms. He said that there was a problem of increased groundwater flows from a previously undetected water course. This had caused the build-up of water behind the Retaining Wall. He said that he was asked to “design a solution that would enable CSS to gain access to the rear of [the Retaining Wall] so that the problem could be rectified.” The Second Defendant said that he recommended the installation of the high level drain and which would enable the water to be removed. The Second Defendant said that it was the new drain and that alone which he was engaged to design and which he did design.

[85]Mr. Dawkin gave evidence of being present at a meeting on Site at which the Claimant gave the Second Defendant an instruction to design the high level drain. Mr. Dawkin initially said that the meeting took place in November 2010 but then modified that to say it was “around that time”. I find that in that respect Mr. Dawkin was mistaken and that the recollection he was setting out was of the Site Progress Meeting held on 28th October 2010 or potentially an earlier meeting in October 2010. Thus Mr. Dawkin was not present at the meeting on 17th November 2010. However, I find that Mr. Dawkin’s evidence is nonetheless significant because it confirms that attention was focussed on dealing with the flow of water. Mr. Dawkin said that there was “a lot of water”: a description which echoes the Second Defendant’s evidence that the amount of water was such that there was a “quagmire” with the efect that machinery could not approach the Retaining Wall. Mr. Dawkin recalled standing with representatives of the Claimant and others at the top of the Retaining Wall looking down on the water. He said that agreement was reached that a “high level cut off drain was required to take the water away from the site which would then allow the team to come up with a solution of how to carry on the build of the wall”. This is powerful support for the submission from Mr. Winser that the position was that the backfill need to be taken out and replaced; that in order to enable that to happen the surplus water needed to be drained off; and that this was the issue which the Second Defendant was engaged to address.

[86]I have concluded that the November 2010 engagement was one whereby the Claimant engaged the Second Defendant to design a new high level drain which was to be installed behind the Retaining Wall. The Second Defendant was obliged to exercise reasonable care and skill in that design. He was not, however, engaged either expressly or impliedly to design or to re-design the Retaining Wall nor did he warrant that after his works that wall would be fit for its purpose.

[87]I reach that conclusion primarily because it is the most natural interpretation of the wording of the e-mail exchanges which constituted the engagement. This is particularly so when those exchanges are seen in the context of the e-mails which had preceded them including the e-mail sent by the Second Defendant at 12.24 on 18th November 2010. That e-mail was sent after the Second Defendant’s offer but before the Claimant’s acceptance. It was setting out the Second Defendant’s understanding of the basis on which he had made his fee proposal. Moreover, Mr. Parker accepted that the e-mail was a confirmation of the instructions which he had given to the Second Defendant the day before. The Claimant’s acceptance of that proposal a week later is to be regarded as having been made in the light of and on the basis of that explanation from the Second Defendant.

[88]In my judgement the context of the dealings leading up to the exchange of e-mails is also significant. The documents indicate that the immediate problem which was to be addressed was that of the water build-up behind the Retaining Wall. This is consistent with Mr. Dawkin’s evidence summarised above. I find that evidence of particular assistance in determining the situation as the parties saw it at the time of the e-mail exchanges and as indicating the problem which the Second Defendant was being engaged to address.

[89]Finally in this respect the evidence of Mr. Parker is highly significant. He accepted that the Second Defendant’s e-mail of 18th November 2010 confirmed the instructions which had been given orally the day before. Mr. Parker accepted that that the only express instructions had related to the design of and the drawings for the new high level drain and that there had been no express reference to the Second Defendant undertaking work for the Claimant in relation to the design or re-design of the Retaining Wall.

[90]The Claimant’s case depended on the contention that the Second Defendant was the designer of the Retaining Wall and that in those circumstances notwithstanding the language used and the absence of any express reference to the design of the Retaining Wall the engagement was to be seen as one to amend or review the design of that wall. I have found that the Second Defendant was not the designer of the Retaining Wall. However, even if I had found that the Second Defendant had been the designer that would not have led to the conclusion sought by the Claimant. The issue in the case is a matter or construction or interpretation rather than implication. I have explained why I have concluded that seen in context the language used is to be interpreted as giving rise only to an obligation in respect of the new drain. Even if that context were to be modified by the addition of a finding that the Second Defendant had been the designer of the Retaining Wall the language used could not, in my judgement, properly be interpreted so as to amount to an express engagement whereby the Second Defendant was to amend the design or to warrant the Retaining Wall’s fitness for purpose. That would go beyond the range of legitimate interpretation of the words used. Similarly such an obligation would not arise by implication. It would have been a transformation of the language used and would be neither necessary for the business efficacy of the engagement nor such as to be implied on the grounds of obviousness.

[91]If I had found that the Second Defendant had been engaged to amend the design of the Retaining Wall I would then have accepted the Claimant’s argument that the Second Defendant was warranting that the wall would be fit for purpose. This is because if there had been such an engagement it would in context have been one to remedy the problems with the Retaining Wall and not just to exercise care and skill in the further design work.

Was there a Breach of the Second Defendant’s Obligations?

[92]My conclusion as to whether there was a breach on the part of the Second Defendant follows from my conclusion as to the scope of the engagement. I have found that the Second Defendant was engaged by the Claimant in November 2010. However, he was not engaged to undertake a re-design of the Retaining Wall nor did he warrant that after he had performed his engagement that wall would be fit for purpose. Instead the Second Defendant was engaged to provide a design for a drain which was to be installed behind the Retaining Wall. I have concluded that the Second Defendant’s obligation was to exercise the level of reasonable care and skill to be expected of a competent civil engineer in performing that work. The Claimant does not allege that there was any breach of that duty. The breaches set out at paragraph 28 of the Particulars of Claim and the particulars at paragraph 29 thereof all relate to the Claimant’s case that the Second Defendant was engaged to provide a Retaining Wall which was fit for purpose and that he failed to do so. The Claimant accepts that if the Second Defendant’s engagement was limited to the design of the further drain then its claim falls away.

[93]In those circumstances the claim is dismissed. Quantum.

[94]The conclusions which I have reached in respect of the scope of the November 2010 engagement and of whether there was a breach by the Second Defendant mean that it is not necessary for me to make findings in relation to the loss suffered. However, I heard detailed evidence and argument in that respect and so will set out very briefly the conclusions on quantum to which I would have come if I had found that the Second Defendant had been in breach of a warranty that the Retaining Wall would be fit for purpose.

[95]There were four areas of dispute in relation to quantum. The first related to the extent of the piling works which were properly to be regarded as remedial works caused by a breach by the Defendants. The Defendants said that piling works would have been needed even if the Second Defendant had exercised reasonable care and skill. However, Mr. Winser accepted that if the obligation had been one of warranting that the Retaining Wall was fit for purpose then some piling works were to be regarded as having been caused by the breach. As I have already explained if I had found for the Claimant it would have been on the footing of a warranty as to fitness for purpose. Accordingly, if the Second Defendant had been in breach there would have been some recovery in this regard. There is a further aspect to this area of dispute. The Defendants say that even if the cost of some piling were to be recoverable that would be limited to the piling on the southern side of the Site (in effect parallel to the Retaining Wall) and that the piling on the western and eastern sides of the Site could not be attributed to any deficiency in the Retaining Wall. I reject that submission. The piling on the western and eastern sides of the Site was installed as part of the remedial works recommended by White Young Green who were engaged by the Claimant to investigate and to propose a solution to the problems flowing from the inadequacy of the Retaining Wall. It is not suggested that those works were inappropriate but rather that they are not attributable to the deficiency of the Retaining Wall. I find that those works were reasonably and properly undertaken as a response to the problems with the Retaining Wall and so the cost of the full extent of the piling would have been recoverable.

[96]The Defendants took issue with the recoverability of sums paid by the Claimant for groundworks in respect of the piling works and the burning of holes in the piling. These items totalled £5,058.27. It was accepted by the Defendants that the works had been performed (though the extent of the work done was not accepted) and that the Claimant had paid these sums. It was accepted by the Claimant that the payments had been made for dayworks and that the daywork sheets in respect of which payment was made had not been signed. The Defendants said that in those circumstances these amounts were to be regarded as not having been proved to have been caused by the alleged breach because the expenditure was not shown to have been necessary. The Defendants said that in the absence of signature it could not be accepted that the works had been done and that in the absence of signature the Claimant had not been obliged to make payment with the consequence that the payments were not a necessary result of the breach. The question I have to address is whether on the balance of probabilities the Claimant has shown loss caused by the alleged breach in circumstances where the Claimant has to have acted reasonably in mitigation of its loss and where the Claimant cannot recover more than the reasonable cost of the necessary remedial works. The issue came down to the question of whether it was reasonable for the Claimant to have made payment in the absence of signed daywork sheets. The effect of the expert evidence was that this was not an ideal practice and was not the normal approach but that it was an approach which was adopted from time to time by those acting perfectly reasonably and properly. Thus the Defendant’s quantity surveyor expert, John Johnson, accepted that he had on occasion authorised payment in respect of unsigned daywork sheets. In those circumstances I am satisfied that this expenditure was reasonably incurred by the Claimant and would have been recoverable if the Claimant had succeeded in respect of liability.

[97]The Claimant sought the sum of £14,894.33 in relation to works on concrete reinforcement and stone filling. This item had not been pleaded by the Claimant. The Claimant contended that it was nonetheless recoverable because the need for this work was inherent in the items which had been pleaded and particularised. The Defendants said that it was not recoverable because it had not been pleaded. They said that it was separate from and not inherent in the other works and said that the fact that it had been itemised and addressed by the experts separately from the other elements showed that it was a distinct item. I agree with the Defendants’ contention. This was a distinct item of loss and to be recoverable it should have been pleaded rather than appearing for the first time in the schedules put forward in the expert reports. Accordingly, it would not have been recoverable.

[98]The Claimant sought £108,752.76 in respect of preliminaries on the footing of the delay which the remedial works in relation to the Retaining Wall allegedly caused in completion of the works on the Site. The Defendants said that the Claimant had failed properly to demonstrate the delays which had been caused. Moreover, it transpired that the Claimant had received loss and expense payments from the employer but the amounts of these were not in evidence and they had not been set against the preliminaries claim. In those circumstances the Defendants said that the preliminaries claim had not been established. I find that the Defendants’ submission was correct. The need to undertake remedial works in relation to the Retaining Wall is likely to have caused some delay to the completion of the project but the state of the evidence put forward by the Claimant was such that I was not able even on the balance of probabilities to identify with confidence a particular period or duration of delay caused by this. Moreover, the loss and expense payments were clearly of potential relevance and in the absence of evidence as to their amount and as to the basis on which they were paid I could not conclude that the Claimant had shown a loss in respect of preliminaries let alone the amount of any such loss. It follows that this element would not have been recoverable as damages.

[99]Accordingly, if the Claimant had succeeded the damages awarded would have been calculated by reference to what has been described as “alternative 2” namely including the cost of the greater length of piling but excluding item 7 of the experts’ Scott Schedule and also excluding any sum in respect of preliminaries.