“Change Control Despite our attempts to have a managed change control process, BDP continue to make design changes with significant cost impact with little or no regard to their cost and minimal back checking to the cost plan allowances. The drafting of CAI’S has and continues to be a significant concern. Instructions issued are inadequately detailed, vague and leave SLI exposed to risk. Other members of the team have had to continually check and in some instances draft CAI’s on behalf of BDP.”
“alleges that negligent performance of the same kind, mutatis mutandis, as that which has been identified in both Standard Life’s analysis and the analysis of Buro 4 as the cause of the substantial majority of the CAIs and CVIs analysed was also the cause of the balance of all variations on the project.”
“Standard Life’s approach has been to employ systematic sampling by cost/value within a stratified sampling frame. In other words, the population under scrutiny (i.e. all variations on the project) has been divided into sub-populations (i.e. project components such as Residential Fit-Out, Secondary Steelwork etc.). From those sub-populations, the four headline project components which form the subject of Schedules 1 to 4 POC were selected for analysis based on the total cost/value associated with each, as a proportion of Costain’s final account. 23. Owing to constraints on the availability of documentation at the start of the sampling process, Standard Life began by analysing variations which arose in connection with Residential Fit-Out, Secondary Steelwork, Roofing and Cladding. Standard Life has therefore analysed variations arising from 4 of the 6 mostly costly project components. …. 24. Within each sub-population (project component), individual variations have been selected for analysis systematically, by prioritising those of highest value, in order to cover the maximum extent of the variation account by value in the shortest possible time. This common-sense approach has necessarily been constrained by the limited information available to Standard Life in its position as Employer and in circumstances where it relied upon professional project management. It is confirmed that the total value of CAIs and CVIs analysed … represents all variations which Standard Life has analysed to date.”
“insofar as the Fourth to Sixth Defendants or any of them have observations to make about Standard Life’s approach to sampling, then Standard Life will consider other approaches or further sampling, if reasonably required, in the light of those observations and the Defences yet to be served.”
“Standard Life’s common-sense approach of prioritising the most costly project components is (i) unbiased and (ii) has the obvious practical advantage of covering the maximum extent of the variation account by value in the shortest possible time, both of which increase the representativeness of the sample. Whilst no sample can ever be totally representative, Standard Life avers that Schedules 1 to 4 constitute a sample of the performance of both the Design Team in general and SGA in particular that is sufficiently representative to prove Standard Life’s case on the balance of probabilities.”
“Standard Life makes a claim for loss of expense against Cundall based on the value of variations for which Cundall is alleged to be responsible, notwithstanding that the loss and expense is not alleged to have been caused by these variations. Accordingly, there is no pleaded link between alleged cause and effect in relation to Standard Life’s claim for loss and expense.”
“In the absence of any more granular breakdown from Gleeds or the Design Team and unless and until further information is provided, responsibility for causing additional/varied work represents the only reasonable metric by which Standard Life can apportion liability for the balance of the loss and expense amongst the Design Team. Standard Life therefore claims the value of each Costain claim in which the Design Team is implicated from each of the Fourth to Sixth Defendants in proportion to the percentage of additional/varied work for which the relevant member of the Design Team is responsible.which is broken down in the table at Tab 5 of the Part B Quantum Spreadsheet. In respect of each claim, Standard Life seeks to recover a total amount of no more than the sums assessed in Gleeds’ Final Account.”
“To the extent that any party asserts that any sum was wrongly or over-certified, then Standard Life will contend that any overpayments made to Costain were caused by a negligent failure by BDP, in its capacity as Contract Administrator, adequately to investigate and then reject Costain's entitlement (contrary to clauses 7.1 and 7.15 of Schedule 1 to BDP's Appointment).”
“Further, insofar as any member of the Design Team asserts in these proceedings that a particular CAI, CVI, DN [delay notice] or claim either (i) arose from matters other than a breach of duty by the Design Team, or (ii) would have arisen in any event, irrespective of the Design Team's performance, Standard Life reserves the right to respond in full to all facts and matters raised in relation to that CAI, CVI, DN or claim.”
“218A. BDP’s breaches of duty in relation to poor record-keeping (set out more fully [various paragraph number references] above), have hindered Standard Life’s ability to particularise its claims in the manner in which BDP, Sutton Griffin and CJP allege in their Defences and/or Requests for Further Information that Standard Life should particularise those claims: see, for example, paragraph [various references to the RFIs and Defences]. 218B. To the extent that claims made in these proceedings against each of BDP, Sutton Griffin and CJP are lost or otherwise diminished for the want of particularity alleged by each or any of the Part B Defendants in their Defences and/or Requests for Further Information, then Standard Life’s opportunity to have pursued and/or compromised those claims against each of the Part B Defendants and the Court’s opportunity to assess those claims will have been diminished or otherwise lost and/or contributed to by BDP’s breaches of duty in relation to poor record-keeping (set out more fully at paragraphs 175(5) to (8) above) and Standard Life will seek damages from BDP in respect of such lost opportunities, such damages to be assessed at trial. H7. Design Team’s failures to warn about completeness of design 218C. As a result of BDP’s, Sutton Griffin’s [SGA’s] and CJP’s [Cundall’s] breaches of duty set out at [various paragraphs] above, Standard Life was progressively misinformed and lost the opportunity to: (1) tender the said works packages competitively on the basis of complete information; (2) make informed decisions when appraising and selecting tenders, since the tenders received were based on incomplete information and therefore (a) did not accurately reflect likely outturn costs and (b) created subsequent opportunities for tendering subcontractors to increase their costs; (3) seek to reduce costs; (4) carry out value engineering; and/or (5) work with Costain to re-sequence Costain’s works in order to mitigate delay and disruption. 218D. For the avoidance of doubt, Standard Life relies upon the collective impact of each of BDP’s, Sutton Griffin’s and CJP’s individual failures to warn in the course of the project, not only in relation to [various elements of the building works] but also in relation to the project as a whole.”
“A court will not strike out a statement of case merely because that statement of case would generate some untidiness in the pleadings. A court will not strike out a statement of case merely because one will end up with a bundle of pleadings, some parts of which are redundant. A court will only strike out a statement of case pursuant to the second limb of rule 3.4 (2)(b), if the statement of case is such as to prevent the just disposal of the proceedings or, alternatively, such as to create a substantial obstruction to the just disposal of the proceedings. It seems to me that if one has a somewhat untidy bundle of pleadings or statements of case, counsel and the judge will rapidly become familiar with which parts of those pleadings are redundant and which parts are relevant.”
“In my judgment, when regard is had to these authorities the key question must always be whether or not, at the time of issuing a writ, the claimant was in a position properly to identify the essence of the tort or breach of contract complained of and if given appropriate time to marshall what it knew, to formulate particulars of claim. If the claimant was not in a position to do so, then the claimant could have no present intention of prosecuting proceedings, since it had no known basis for doing so. Whilst therefore the absence of present intention to prosecute proceedings is not enough to constitute an abuse of process, without the additional absence of known valid grounds for a claim, the latter carries with it, as a matter of necessity, the former. If a claimant cannot do that which is necessary to prosecute the claim by setting out the basis of it, even in a rudimentary way, a claimant has no business to issue a claim form at all ‘in the hope that something may turn up’. … The plaintiff/claimant thus, unilaterally, by its own action, seeks to achieve for itself an extension of the time allowed by statute for the commencement of an action, even though it is in no position properly to formulate a claim against the relevant defendant. That must, in my judgment, be an abuse of process and one for which there can be no remedy save that of striking out the proceedings so as to deprive the claimant of its putative advantage. The illegitimate benefit hopefully achieved can only be nullified by this means. Whatever powers may be available to the court for other abuses, if this is an abuse, there is only one suitable sanction.”
“… such defects as were present in the welding, when considered against those that could be identified by the testing regime agreed, on the balance of probabilities does not exceed the percentage of welds that are to be expected agreed by the experts of 5%. The sampling/extrapolation exercise performed by ICI’s experts is in my judgment wholly invalid. It requires an assumption to be made that the 412 weld reports considered by Mr Millwood was a randomly chosen sample, which it plainly was not.”
“I accept that it is open to Cumbria as a matter of law to seek to persuade me to accept its extrapolation case on the basis that its sample is sufficiently representative to be relied upon. I accept that there is no principle of law nor of statistical theory that a claim or a proposition can only be established by statistically random sampling. I accept that it is perfectly open to a claimant to seek to establish a claim by reference to representative sampling, although further and different considerations will apply to such a claim, with which I shall have to engage in due course.”
“Cumbria’s pleaded case is that Amey was guilty of a series of systemic breaches in relation to its patching works, extending to a significant proportion of the total number of patches laid over the duration of the contract, and in respect of which Cumbria is claiming damages. As I have already said, there is a difference between such a claim and a claim where there are a number of individual claims being made in relation to a number of individual identified patches. Although it may be said that the dividing line between the two classes of claim may be difficult to draw in some cases, it is clear in my judgment that this claim falls squarely within the former category.”
“I accept that in those circumstances it is not unreasonable in principle for Cumbria to seek to rely upon representative sampling in this case. The key issue, however, is whether or not Cumbria can demonstrate that it is sufficiently representative to enable the court to place reliance upon it, in circumstances where on any view it converts a small number of individual complaints, modest in value both individually and collectively, into a very substantial claim.”
“Power of court to control evidence 32.1—(1) The court may control the evidence by giving directions as to— (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is to be placed before the court. (2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.”
“‘evidence of systemic failure of various types of incompetence is admissible in professional negligence cases as enabling a judge to make inferences of negligence in a particular case.’ … In my judgment evidence of extraneous matters should be confined to cases of similar fact for the traditional reason that, unless the evidence is similar fact evidence, it is not probative of the issue to be determined. The question whether extraneous evidence is truly similar fact evidence is, no doubt, one of some difficulty and it may be that courts are now readier to admit evidence as being similar fact evidence than they were in the past. But that should still be the test.”
“The judge's decision reaffirms the essential principle that it is for the judge, once liability has been established, to assess recoverable damages on the available information. Strict attribution of individual items of loss and expense to specific causes gives rise to significant difficulty in many cases and may be indeed be literally impossible in some cases unless detailed records kept. Whilst the absence of detailed evidence of quantum is a reason for the tribunal to be cautious in its assessment of loss it does not preclude it altogether. The employer argued that the contractor's claim should not be allowed because firstly, it was a global claim and secondly, the impossibility of disentanglement had been caused by the contractor. Akenhead J concluded that the claim was not a global claim, but went on, in obiter comments, to reject the submission that the claim should be rejected in those circumstances. Absent any express provisions in the contract excluding such claims, Akenhead J commented that a global or total costs claim may be permissible on the facts and subject to proof, recognising that there are generally added evidential difficulties which a claimant contractor in such a case will need to overcome.”