Hunts Contractors Limited v Melton Town Football Club Limited [2025] EWHC 2967 (TCC)

[2025] EWHC 2967 (TCC)Case No HT-2023-BHM-000020IN THE HIGH COURT OF JUSTICEVenue BUSINESS AND PROPERTY COURTS IN BIRMINGHAMTECHNOLOGY AND CONSTRUCTION COURT (KBD)Venue Birmingham Civil and Family Justice CentrePriory Courts33 Bull StreetVenue BirminghamB4 6DSDate 13 November 2025
Before
HHJ SARAH WATSON
Between
Hunts Contractors LimitedClaimantMelton Town Football Club LimitedDefendant
Mr George Woods (instructed by Berwick Law) for ClaimantMs Katie Powell and Mr Caspar Ramsay (instructed by Brabners LLP) for DefendantHearing Hearing dates: 23 June to 26 June and 30 June to 1 July 2025
JUDGMENTHHJ SARAH WATSON:

INTRODUCTION

[1]Hunts Contractors Limited (“Hunts”) is a contractor specialising in the construction of sports pitches. Melton Town Football Club Limited (“Melton”) is a football club that is structured as a company limited by shares. In 2021, Hunts installed a new 3G artificial football pitch at Melton’s ground at Sign Right Park, Melton Sports Village, Burton Road, Melton Mowbray. Melton claims that there were defects with the pitch. In March 2023, Melton referred its claims to adjudication. The adjudicator, Ms Grace Cheng, issued her decision in May 2023. She decided that Hunts were in breach of contract and awarded Melton the costs of replacing the pitch and damages for consequential financial losses. Following the issue of enforcement proceedings, which were settled between the parties, Hunts paid Melton £961,306.99, which included VAT on some elements of the claim. Following receipt of the payment, Melton replaced the pitch.[2]Hunts brings this claim to recover part of the award it has paid to Melton. It accepts that there were issues with the pitch and that some remedial work was required but considers that it is entitled to a substantial repayment. In particular, it claims that it was not reasonable for Melton to replace the pitch rather than carry out more limited remedial work to it.[3]Melton counterclaims for its losses, which it claims exceed the award it has already received.

PEOPLE AND ENTITIES INVOLVED

[4]I set out below the companies and individuals involved. 4.1. Hunts Contractors Limited, a company engaged in building artificial football pitches and the Claimant (“Hunts”); 4.2. Melton Town Football Club Limited, a company incorporated on 1 April 2020, owned by Mr Jonathan Manship and Mr Thomas Manship, which provides community football facilities in the area of Melton Mowbray (“Melton”); 4.3. The Sports and Play Construction Association, a trade association for those involved in the construction of sports surfaces (“SAPCA”); 4.4. TigerTurf (UK) Limited, a supplier of artificial turf for football pitch (“TigerTurf”); 4.5. Greenfields BV, a manufacturer of artificial turf for football pitches (“Greenfields”); 4.6. Surfacing Standards Limited, a company which produced a topographical survey, planning drawings and a drainage plan for Melton’s application for planning permission for the new pitch (“SSL”); 4.7. Playdeck UK Ltd, sub-contractors to Hunts who laid the artificial turf at Melton’s ground (“Playdeck”); 4.8. Sports Group International, a provider of education services including via sporting academies (“SGI”); 4.9. Labosport Ltd, consulting experts in sports surfaces, and the firm for which Mr Keeley works (“Labosport”); 4.10. PST Sport UK Limited, contractors who replaced the pitch (“PST”); 4.11. Mr Shaun Drury, Managing Director and owner of Hunts and witness of fact for Hunts (“Mr Drury”); 4.12. Mr Matthew Pickersgill, Contracts Director of Hunts who had day to day conduct of the work of constructing the pitch and witness of fact for Hunts (“Mr Pickersgill”); 4.13. Mr Paul Hopkinson, Project Manager for Hunts, who was largely office-based, and a witness of fact for Hunts (“Mr Hopkinson”); 4.14. Mr Thomas Manship, former professional footballer, Manager of Melton, director and 50% shareholder in Melton and witness of fact for Melton (“Mr Manship”); 4.15. Mr Jonathan Manship, is also known as John Manship or Jon Manship, Mr Manship’s father, a successful businessman who owns John Manship Records, a director of and 50% shareholder in Melton and a former player and former manager of Melton Town Football Club (“Mr Jonathan Manship”); 4.16. Mr Mathew Roberton, Melton’s volunteer groundsman and a witness of fact for Melton (“Mr Roberton”); 4.17. Mr Adam Etheridge, former administrative officer for Melton and witness of fact for Melton (“Mr Etheridge”); 4.18. Mr Sam Ellis, who is described in Melton’s written submissions as the Chairman of Melton, who I understand to be a volunteer and not an employee or officer of Melton, but who has written letters on which Melton relies in evidence to support its claims for financial loss, (“Mr Ellis”); 4.19. Mr Mark Waite, an employee of TigerTurf (“Mr Waite”); 4.20. Mr Paul Cox, formerly an agent or broker for SGI and a witness of fact for Melton, (“Mr Cox”); 4.21. Dr Paul Hawkins, expert witness for Hunts on football pitches (“Dr Hawkins”); 4.22. Professor Eric Harrison BSc PhD, a sports surfaces consultant and former head of British and European standards committees on sports surfaces, draftsman of FIFA’s Quality Concept standards for artificial football pitches, who provided expert evidence for Melton in the adjudication and factual evidence for Melton in these proceedings (“Prof Harrison”); 4.23. Mr Philip Keeley, expert witness for Melton on football pitches “Mr Keeley”); 4.24. Mr John Jones, quantity surveying expert for Hunts (“Mr Jones”); 4.25. Mr Kevin Daunt, quantity surveying expert for Melton (“Mr Daunt”); 4.26. Mr Stephen Lewis, forensic accounting expert for Hunts (“Mr Lewis”); 4.27. Ms Sally Longworth, forensic accounting expert for Melton (“Ms Longworth”); 4.28. Happy Drains, drain surveyors who carried out a CCTV survey for Melton (Happy Drains); 4.29. Berwick Law, Hunts’ solicitors; 4.30. Harrison Drury, Melton’s former solicitors; 4.31. Brabners LLP, Melton’s solicitors.[5]A football club known as Melton Town Football Club existed in some form for many years before Melton was incorporated in 2021. I do not know in what legal form the Club existed before 2021. In its evidence, Melton has not drawn any distinction between itself (a company) and the club. I do not understand the club to continue to exist as an entity separately from the company, Melton. I mention this because it appears that there is a club committee with a Chairman and Treasurer (Mr Ellis) and a Secretary, who are not statutory officers of Melton and whose precise role in Melton is unclear to me from the evidence.

ISSUES

[6]In summary, the issue are as follows: 6.1. Whether Hunts was responsible for designing the pitch or whether it was responsible only for constructing it in accordance with the quotation that it provided and was not responsible for its design. 6.2. Whether the pitch was defective either as to design or construction as alleged by Melton. Hunts accepts there were some defects with the pitch but does not accept all of Melton’s allegations as to defects. 6.3. Whether it was reasonable for Melton to have replaced the pitch in its entirety or whether it failed to mitigate its loss by failing to adopt a more limited remedial strategy. 6.4. What, if any, damages is Melton entitled to for remedial works. 6.5. What, if any, other losses is Melton entitled to recover. 6.6. Whether Hunts is entitled to the repayment of any part of the adjudication award that it paid to Melton and whether Melton is entitled to any further payment from Hunts.

CONSTRUCTION OF ARTIFICIAL FOOTBALL PITCHES

[7]The pitch that Hunts agreed to provide was a pitch with a 3G synthetic surface above an unbound base. It is not in dispute that Melton wanted a FIFA Quality Pro artificial 3G pitch, not only to enable the pitch to be used in circumstances where Melton’s existing natural pitch would become waterlogged, but also in readiness for the possible promotion of Melton’s first team, for which a FIFA Quality Pro Pitch is a requirement.[8]Artificial football pitches can be constructed in several different ways. A typical construction involves: 8.1. levelling the ground and ensuring it is suitable as a formation on which to build the pitch; 8.2. laying drains within the formation under the pitch to conduct water reaching the formation layer into drains to take it away from the pitch; 8.3. laying a geotextile membrane over the formation to avoid the earth mixing with the foundation stone; 8.4. laying, compacting and levelling a crushed stone foundation over the geotextile layer; 8.5. laying above the stone foundation a further layer, which could be a “bound” layer such as macadam or a loose or “unbound” layer, also referred to as a “blinding” or “dynamic” layer; 8.6. laying an elastic layer or “e-layer” or “shockpad” above the dynamic layer, which could be pre-formed and rolled onto the pitch, or could be formed and laid in-situ; 8.7. laying the artificial turf or “carpet” onto the e-layer; 8.8. laying infill material, such as sand and small pieces of rubber, onto the carpet.[9]There are variations to this general design. For example, some are drained by lateral drainage across the pitch beneath the synthetic layer rather than draining vertically through the foundation layer to drains in the ground below the foundation.[10]Generally, the blinding or dynamic layer is free draining so surface water on the pitch can drain down through it to the foundation layer below it. If macadam is used, so the upper layer of the base is a bound layer rather than a dynamic layer, it is generally porous macadam for the same reason.[11]The stone foundation layer is generally constructed of a free-draining material such as MOT grade 3 stone, which permits drainage, as it has a low level of fine materials, or “fines”, within it, so the voids in foundation layer do not fill with fines. This means that surface water can drain vertically through it to reach the drains in the ground below it. It also means that, at times of heavy rainfall, the foundation layer itself can attenuate water until it can drain away through the drains as the water can remain in the voids in the foundation layer until it can drain away.[12]Maintenance of the pitch, once constructed, includes periodic brushing to re-distribute the infill which is moved during use of the pitch. The pitch therefore needs to be able to support the machinery used for maintenance without deformation of the surface.

WITNESSES

[13]I heard factual evidence for Hunts from Mr Drury, Mr Pickersgill and Mr Hopkinson, and for Melton from Mr Manship, Mr Etheridge, Mr Roberton, Mr Cox and Prof Harrison.[14]I heard expert evidence on pitch construction from Dr Hawkins for Hunts and from Mr Keeley for Melton, on quantity surveying from Mr Jones for Hunts and Mr Daunt for Melton, and on forensic accounting from Mr Lewis for Hunts and Ms Longworth for Melton. WHETHER HUNTS WAS RESPONSIBLE FOR THE PITCH DESIGN The chronology of the negotiations for the pitch

WHETHER HUNTS WAS RESPONSIBLE FOR THE PITCH DESIGN

[15]It is common ground that Melton wanted a 3G artificial pitch reasonably fit for use as a professional 3G pitch which could obtain FA accreditation and meet FIFA Quality Pro standards.[16]Hunts accepts that it describes itself as experienced in the design, construction, installation and maintenance of sports surfaces, including bespoke 3G FIFA certified football pitches. In some of the written documents produced by Hunts in the litigation, it omitted reference to its expertise in design. Mr Drury accepted in his oral evidence that he had omitted those references because he did not consider that Hunts was responsible for the design of Melton’s pitch.[17]Mr Manship was a professional footballer. He had experience of different types of pitch from his footballing experience. He had not previously specified or constructed an artificial football pitch. He did some research into artificial pitches. He entered into discussions with Mark Waite of TigerTurf, which sells 3G artificial sports surfaces. Mr Drury’s evidence, which I accept, is that, historically, TigerTurf had acted as a main contractor for the construction of pitches, using Hunts as its subcontractor, though TigerTurf had ceased acting as a contractor. Mr Manship’s evidence, which I accept, is that, as a result of his conversations with Mr Waite, he understood that an Ecocept shockpad was a revolutionary stabiliser so the pitch would not move, and that it would be “bomb-proof” and that it also offered excellent shock absorption, minimising players’ injuries.[18]On 8 March 2021, Mr Waite emailed Mr Manship in the following terms:
“I am aware that there has been some mention of Ecocept, but we would really need to instruct a topography survey on the site to establish the suitability and the stabilisation requirements of the land and also so we can understand the water outfall requirements of the site.”
[19]Melton sought planning permission for the new pitch. It engaged SSL to assist it. SSL produced a planning drawing, surveys and a drainage plan and drainage strategy to satisfy the local authority’s requirements for the grant of planning permission for the new pitch. It produced a topographical survey and a plan showing proposed cut and fill on the site, which would reduce the levels at the highest point of the pitch by about 400mm and increase them at the lowest point by about 400mm, leaving the pitch with a gentle slope so that it was about 1m higher at the Southern end than the Northern end and would also slope by about 370mm from West to East.[20]The drainage strategy produced by SSL and provided to support Melton’s planning application provided for a 250mm thick sub-base of MOT Type 3 stone to allow for water attenuation within the foundation layer and a 40mm porous macadam layer above it. From this, it appears that SSL assumed the pitch would have a bound layer rather than a loose, or dynamic, layer, above the 250mm stone foundation layer.[21]The drainage plan showed the proposed location of collector drains running laterally across the pitch under the foundation at 10m intervals, draining to perimeter drains, which in turn drain to a variable orifice device manhole at the North West corner of the pitch. That device would limit the outflow into the main surface water drains downstream to 2.57 litres per second for a 1 in 1 year storm event and to 6.2 litres per second for a 1 in 30 year storm event, before connecting to the existing drain to take the surface water away from the site.[22]The drainage plan showed the total attenuation capacity of the structure of the pitch, including the drains themselves, of 230m 3. 82m 3 of that was attributable to the capacity of the drainage pipes.[23]Melton received planning permission on 30 May 2021.[24]On 2 June 2021, following Mr Waite introducing Mr Manship to Hunts, Mr Manship met with Mr Waite and Mr Drury at Melton’s ground. The parties are not agreed as to precisely what was said at that meeting. Mr Manship’s evidence is that, at that meeting, both Mr Waite and Mr Drury advised Mr Manship of the benefits of using a Greenfields Slide Max Elite 145 carpet with an Ecocept shockpad layer. Mr Manship’s evidence was that he was told by Mr Waite and Mr Drury that Ecocept was a stabiliser when they met on site.[25]On 2 June 2021, Mr Manship sent to Mr Waite SSL’s proposed drainage strategy. Although Mr Drury had denied having received SSL’s drainage strategy before the contract was formed, he corrected his evidence at trial and conceded that he had received it. It was sent to him by Mr Waite.[26]Mr Drury sent various alternative quotations for the pitch. The first that is available was sent on 14 June 2021 and was marked “Rev#2”. It was sent to Mr Waite and forwarded by Mr Waite to Mr Manship on 14 June 2021. It provided for a foundation layer of MOT Type 1X sub-base 260mm thick, a dynamic layer 30mm thick, and a 10mm XC shockpad. The quoted price was £360,000. At the bottom of the quotation were various options, including options for different qualities of carpet, including an option of “Reduced foundation stone to 150mm, c/w 24mm Ecocept shockpad” at an additional cost of £5,000. From this, it is clear that Hunts was offering as alternatives either a 260mm foundation layer and 10mm XC shockpad or a 150mm foundation layer combined with a 24mm Ecocept shockpad, with the latter option being slightly more expensive.[27]At 14.27 on 17 June 2021, Mr Drury sent directly to Mr Manship “a revised quotation based on MF Elite 145 50mm installed on a 20mm e-layer”. The attached quotation Rev#3 included a foundation 260mm thick of MOT Type 1X and a dynamic layer 30mm thick, with Greenfields MF Elite 145 on a 20mm e-layer shockpad. The price was £390,000.[28]At 15.12 on the same day, Mr Drury sent to Mr Manship a further quotation. His covering email stated that he was sending: “revised quotation #4based on 120mm of foundation stone and 30mm of dynamic stone to give an overall 150mm of stone build up, due to the reduced build thickness I have included for stabilisation of the base prior to foundation stone followed by MX Elite v2.0 50mm installed on a 24mm Ecocept layer…… the MX Elite v2.0 is an expensive high end carpet not designed high intensity use (sic) and when coupled with a 24mm Ecocept layer is a £50K uplift from the MF Elite 144 50mm produce on a 20mm e-layer”.[29]Despite saying in the email that he had included for stabilisation of the base prior to foundation stone, the price for the earthworks did not appear to have changed from Rev#2, at £18,500 and there was no change in the description of the earthworks from the previous quotation. The quotation included “Synthetics 3G surface to pitch – Greenfields MX Elite v2.0 on 24mm Ecocept layer”. The price was £395,000.[30]At 15.28 on the same day, Mr Drury sent Mr Manship what his covering email described as:
“revised quotation #4based on 120mm of foundation stone and 30mm of dynamic stone to give an overall 150mm of stone build up, due to the reduced build thickness I have included for stabilisation of the base prior to foundation stone followed by Greenfields Slide Max Elite 145 50mm installed on a 24mm Ecocept layer.”
[31]The attachment appears to have been Rev#5. That made no change to the foundation from Rev #4. It included “3G surface to pitch – Greenfield Slide Max Elie 145 on 24mmm Ecocept layer”. The total price was £355,000.[32]At 08.39 on 21 June 2021 (showing in Mr Manship’s emails as having been received at 9.40 on 21 June 2021), Mr Drury sent to Mr Manship what he described in his covering email as follows:
“revised quotation #5 based on 120mm of foundation stone and 30mm of dynamic stone to give an overall 150mm of stone build up, due to the reduced build thickness I have included for stabilisation of the base prior to foundation stone followed Greenfields Slide Max Elite 145 50mmm installed a 24mm e layer.”
[33]Although he referred to an e-layer, and not to Ecocept, as had been mentioned in the email of 17 June 2021, I note that the thickness was 24mm, which was the same as the thickness of the Ecocept layer in Rev#3, Rev#4 and the earlier version of Rev#5, and inconsistent with the e-layer of 20mm referred to in Rev#2. He went on to say that other carpets, MF elite and MX Elite, could not be produced in time, so he had not re-quoted on those products, but Greenfields could produce the Slide Max Elite 145 as requested. He said that Hunts could start in early July if it had a firm purchase order. The version of Quotation Rev#5 attached to that email provided for a 120mm foundation and “3G surface to pitch- Greenfields Slide Max Elite 145 on 24mm ecocept layer”. The price was £355,000. From this, it appears that Mr Drury used the expression “24mm e layer” in the email to mean the same as “24mm Ecocept layer”, since the quotation itself provided for Ecocept.[34]At 9.40 on 21 June 2021, Mr Drury sent a revised quotation #5. In the covering email, Mr Drury said he had “included for stabilisation of the base prior to the foundation stone followed by Greenfields Slide Max Elite 145 500mm installed on a 24mm e layer”.[35]At 10.42 the same day, Mr Manship responded:
“The club have agreed to proceed on this quote. And are happy with everything. Just waiting on Thai holding objection. Will have news soon.”
[36]On 24 June 2021, Mr Drury corresponded with Mr Lyons of TigerTurf. It appears from that correspondence that the Slide Max Elite 145 carpet had not been tested on any shockpad other than a 10mm Trocellen, so it had not been tested on a 24mm Ecocept layer (which is an in-situ layer) or on a 20mm in-situ e-layer.[37]The Final Quotation, which formed the basis of the contract between Hunts and Melton, was dated 2 July 2021, marked “Final”. It was sent by Mr Drury to Mr Manship at 11.25 on 2 July 2021, under cover of an email which stated “Please find attached final price schedule for Greenfields Slide Max Elite 145 pitch build, provisional works programme and proposed pitch layout as requested. If you are happy to proceed please reply by return with official purchase order number and contact details for payments.”[38]The attached quotation, marked “Final” provided: “Supply, lay and consolidate MOT Type 1X sub base 120mm thick” “Dynamic layer Supply and lay dynamic stone layer laid using laser controlled paver to achieve tolerance of +/- 3mm under 3m straight edge – single course 30mm thick” and “Synthetics: 3G surface to pitch – Greenfield Slide Max Elite 145 on insitu rubber e-layer”.[39]The thickness and brand of the e-layer was therefore not expressly specified in the Final Quotation. Mr Manship’s evidence, which I accept, was that he understood that the reference to the e-layer was a reference to Ecocept.[40]It is of note that, unlike his previous emails enclosing revised quotations, Mr Drury’s email enclosing the Final Quotation did not say any element of the specification had changed since Rev#5, which Mr Manship had confirmed Melton had agreed to proceed with.[41]It is of note also that, for the first and only time in the quotations, the thickness of the e-layer was not specified. In the first quotation (which included a 260mm foundation layer) the e-layer was to be a 10mm XC shockpad. Rev#3 specified a 20mm e-layer shockpad. In Rev#4 and both version of Rev5, including the version that Mr Manship said was accepted by Melton, it was specified as a 24mm Ecocept layer.[42]The price remained unchanged between Rev#5 and the Final Quotation, at £355,000. As Mr Drury later acknowledged in correspondence with Mr Manship, an Ecocept layer would be more expensive than the e-layer Hunts actually installed.[43]By a letter emailed to Mr Drury that day, Mr Manship said he “was pleased to confirm the club would like to accept your proposal, price schedule and provisional works programme dated 2nd July and proceed with the pitch build of the Greenfields Slide Max Elite 145 at Signright Park”.[44]There is no issue between the parties that the contract was formed by exchange of email, and that the Final Quotation forms the specification for the work.[45]On 23 July 2021, Mr Drury emailed Mr Manship in the following terms:
“As discussed on site earlier and since we priced the reduced foundation stone specification as requested we are aware of planning drawings detailing the drainage attenuation calculations and restricted outfall restriction. Whilst I acknowledge your comment to build as instructed to the reduced stone thicknesses this will reduce the capacity of water attenuation possible within the pitch build up and by omitting the outfall restriction this will negate the attenuation problem but it will mean that the pitch won’t be built as per planning design. A flow restrictor device can be fitted retrospectively to the outlet but if this is done it will mean that the pitch could stand in water on the low side or require the installation of an attenuation tank to prevent this. I completely understand your comments earlier and will construct the pitch to any design you wish but I have to point out the facts at this stage before construction starts. The final surface will still meets (sic) the required tolerances and playing characteristics and once complete it would be very difficult to see the reduced construction build, but I will need confirmation by return that you are happy to proceed as the purchase order on the reduce construction build thicknesses.”
[46]Mr Manship responded on 25 July 2021 “Happy to proceed”.

Analysis of the evidence as to responsibility for pitch design

[47]Mr Drury’s evidence was that Hunts did not have design responsibility for the pitch. His evidence in his witness statement for the adjudication was that Hunts did not design the pitch. However, he did not explain who did design the pitch. The documents on which he relied in his witness statement in the adjudication in support of his position, being the emails of 23 July 2021 drawing attention to the fact that the pitch would not comply with planning permission as its attenuation capacity was inadequate and Mr Manship’s instruction to proceed, were sent after the contract had been formed and the specification for the pitch had been set. That post-contractual correspondence warned Melton that the contractual specification did not comply with the planning permission and might require a flow restrictor to be fitted later and, if so, an attenuation tank might be required to avoid the lower levels of the pitch standing in water.[48]Mr Drury has suggested that Mr Manship had requested a thinner base. However, the evidence supports that Mr Manship selected one of the options presented to him by Hunts.[49]Mr Drury accepted in his oral evidence that Hunts has expertise in the design of pitches as well as their construction. It is clear to me from the evidence that Hunts held itself out as having the expertise to make recommendations and to design the pitch. The correspondence on which Hunts relies, when it warned Melton of the breach of planning permission if the pitch was constructed as they had agreed, illustrates that it continued to hold itself out as having that expertise. It stated that the pitch would still meet the required playing characteristics. That is not consistent with Hunts’ position that it had no design responsibility. It was clearly seeking to reassure Melton that, even though the works would not comply with the planning consent, they would otherwise comply with Melton’s requirements.[50]Further, Hunts produced the Final Quotation after Melton had accepted Quotation Rev#5, which altered the description of the shockpad from 24mm Ecocept in Rev#5 to “insitu rubber e-layer”. There is no evidence that any change from Ecocept to another type of e-layer was requested by Mr Manship. Hunts clearly felt it was open to it to change the type of shockpad, as it did. That is inconsistent with its case that they were simply building a pitch designed by someone other than itself.[51]I find that Hunts provided to Melton various options for the design of the pitch, with different configurations of thicknesses of the foundation layer and the e-layers and carpets. Melton selected one of those designs - the option of a thinner sub-base combined with a 24mm Ecocept e-layer.[52]I find that Hunts took responsibility for designing and did design the pitch.

WHETHER HUNTS WAS UNDER A DUTY TO WARN

[53]It is not in issue that Hunts had a duty to warn Melton of any errors or deficiencies in the design or specification of the pitch would or could have an adverse effect on the safety and quality of the completed works.[54]Hunts accepts that it had a duty to warn Melton if the design of the pitch would mean that the pitch would not pass FIFA tests or other performance requirements. THE TERMS OF THE CONTRACT Accreditation and certification

THE TERMS OF THE CONTRACT

[55]It is not in issue that the contract required Hunts to deliver a pitch that would be fit for use as a professional 3G football pitch capable of obtaining FA accreditation and which met FIFA Quality Pro standards under the published parameters at the time the contract was formed.[56]It is not in issue that the published parameters included the following, to which I shall refer as the “Published Parameters”: 56.1. the SAPCA Code of Practice for the Design, Specification and Testing of Bases for Outdoor Synthetic Sport Areas, 2nd Edition August 2020 (“the SAPCA Code”), 56.2. the FIFA Quality Programme for Football Turf Handbook v 3.0 October 2015 (“the FIFA Handbook”), and 56.3. the FIFA Preparation of a Sub-base for a Football Turf System documents v 1, October 2016 (“the FIFA Preparation Document”).

Did the Contract require an Ecocept e-layer?

[57]In my judgment, the proper construction of the contract is that it included an Ecocept e-layer. I consider that an objective observer who was aware of the factual background would interpret the Final Quotation so that the reference to “insitu rubber e-layer” was a reference to the 24mm Ecocept layer that had been specified in the previous three quotations, including the second Rev#5, which Melton had accepted. My reasons include the following: 57.1. The covering email attaching the Final Quotation did not indicate any change from the Rev5 Quotation that Melton had accepted, whereas all previous emails attaching revisions highlighted any important changes from the previous revisions. 57.2. In the email of 08.39 on 21 June 2021 enclosing the first version of Rev#5, Mr Drury referred to the e-layer without reference to the brand Ecocept, but the attached quotation made clear that the specified e-layer was a 24mm Ecocept layer, so it would be reasonable to understand that Mr Drury used the expression “e-layer” to refer to the Ecocept product in his communications relating to this project. 57.3. There was no price adjustment for any change to the specification from Ecocept to another e-layer, despite all parties agreeing that Ecocept would be more expensive than the in situ e-layer that was actually provided. 57.4. There was no other specification offered. The Final Quotation simply referred to an “insitu rubber e-layer”. If that was not intended to be a reference to the Ecocept layer referred to in both versions of Rev#5 and Rev#4, there would be no specification at all for the in-situ rubber e-layer, not even as to its thickness. The other non-Ecocept e-layers for which Hunts had quoted were specified as to thickness. Rev#2 specified a “10mm XC shockpad”; Rev#3 specified a “20mm e-layer shockpad” and Rev#4 and both versions of Rev#5 specified a “24mm Ecocept layer”. Given the detailed discussions and different versions of the quotation that had been provided, it is improbable that that the intention was to leave Hunts free to provide any e-layer of any thickness that they chose. 57.5. I accept Mr Manship’s evidence that he understood from his discussions with Mr Waite and Mr Drury that Ecocept acted as a stabilising layer and that he understood from the fact that Quotation Rev#2 made clear that the reduced thickness of stone foundation was to be combined with a 24mm Ecocept shockpad that the use of Ecocept permitted a thinner foundation layer. Rev#3, which allowed for a 20mm shockpad of unspecified brand, included 260mm foundations. All the revisions other than the Final Quotation which included the reduced thickness of the foundation specified an Ecocept shockpad. It would be reasonable to understand that the shockpad to be provided would be Ecocept, in those circumstances.

Depth of the foundation stone layer

[58]The Final Quotation provided:
“Sub Bases: ..Supply, lay and consolation MOT Type 1X sub base 120mm thick”
. It is common ground that MOT Type 1X stone is equivalent to MOT Grade 3 stone as referred to in some of the technical guides. Melton’s case is that the contractual specification therefore requires the finished foundation layer to be 120mm thick.[59]Hunts’ pleaded case is that its obligation was only to “supply a sufficient volume of stone for a 120mm thick accumulation over the pitch area and then to lay that stone and consolidate it”. I disagree with that interpretation. I consider the ordinary and natural meaning of “supply, lay and consolation MOT Type 1X sub base 120mm thick” is that the finished sub-base was to be 120mm thick. The depth “120mm” describes the sub-base, not a quantity of imported stone or the depth of the material at a particular point during construction. I am supported in my conclusion by the following: 59.1. It is common sense that the parties would specify finished depths. It would otherwise not be possible to determine whether the contract was complied with. Once the stone was compacted, there would be no evidence of the depth of the stone prior to compaction. 59.2. Mr Keeley’s evidence, which I accept, is that, in many years’ experience in the industry, specifications of foundation thickness are to finished, compacted levels. 59.3. The other measurements in the Final Quotation are for finished depths, such as the dynamic layer, which is described as “single course 30mm thick”. 59.4. The SAPCA Code, which both parties accept was applicable to the contract, provides that “in accordance with common practice within the construction industry, the depth of any individual construction layer specified within this Code of Practice is defined as the nominal compacted depth which can be regarded as the design depth of the construction layer”.[60]I find that the Contract required the foundation layer to be at least 120mm after compaction.

Flatness of the dynamic layer

[61]The parties are agreed that the contract required Hunts to construct the pitch so that the dynamic layer was flat to within a 3mm tolerance along a 3m straight edge.

Stabilisation

[62]The parties are agreed that the contract required Hunts to provide stabilisation of the base before laying the foundation stone. This was referred to in the covering emails accompanying the later revisions of the quotation, which stated:
“due to the reduced build thickness I have included for stabilisation of the base prior to foundation stone...”
However, in his oral evidence, Mr Drury suggested that stabilisation could mean simply rolling the formation before laying the stone and need not refer to a chemical process or the inclusion of a mechanical stabilisation method such as geogrid. He referred to the item in the written quotations “laser trim and roll formation” and suggested that that was the reference in the quotation to stabilising the ground beneath the foundation.[63]While it is true that the quotations themselves do not contain any item in the price breakdown for stabilisation other than the reference to laser trimming and rolling the formation, I do not accept Mr Drury’s position, for the following reasons: 63.1. I am satisfied from the literature included in the trial bundle and from the expert evidence that “stabilisation” of ground beneath foundations is a process to improve the stability of the ground beneath a structure, which can be done in a number of different ways, including by using geogrids or chemical methods such as using lime or cement to improve the properties of the ground. 63.2. All the quotations, including Rev#2, which was priced on the basis of a 260mm stone foundation layer, included a price for “laser trim and roll formation”. This would suggest that the stabilisation referred to in the emails covering the later revisions of the quotation as required due to the reduced build thickness was something other than what was already included in the earlier revisions. 63.3. Mr Drury accepted in his oral evidence that the formation would always be trimmed and rolled.[64]I find that the contract required Hunts to stabilise the ground to make it suitable for a reduced foundation layer of 120mm.

Implied term under Supply of Goods and Services Act 1982 (“the Act”)

[65]It is not in issue that Hunts was required: 65.1. to carry out its work with the reasonable skill and care to be expected of a suitably experienced specialist sports surfaces contractor, as required by s13 of the Act; and 65.2. to supply goods that corresponded with their description, as required by s3(2) of the Act.

THE RELEVANT CHRONOLOGY OF THE PITCH ISSUES

[66]The construction work began on 2 August 2021.[67]On 28 September 2021, by which time Hunts had laid the dynamic layer but had not yet laid the e-layer or the carpet, the pitch flooded and water flowed from the pitch into the neighbouring school.[68]Mr Pickersgill sent a WhatsApp message to Hunts’ WhatsApp group for the project in the following terms:
“School has flooded again tonight, think the dynamic is to (sic) tight so not getting into the drains quick enough, going to get Wilkes to take the top off the drains runs and top up with a more open product as I’m fearful it could continue so not worth the risk.”
[69]Mr Pickersgill’s evidence was that he did not know why he said the school had flooded “again” as he did not recall another incident where it had flooded. This message clearly indicates that Mr Pickersgill’s view was that the dynamic layer was not draining as it should so the surface water was not reaching the lateral drains beneath the pitch, because the dynamic layer was too “tight”, meaning it did not contain sufficient voids to permit free drainage. His proposed solution was to put more open material above the drain runs so the water would be able to pass through it to the drains.[70]On 29 September 2021, Mr Manship took a video of his foot sinking into the dynamic layer. The video showed a very soft material that appeared waterlogged, into which his foot easily sank with a little pressure.[71]On 30 September 2021, he sent an email to Mr Drury raising concerns that the dynamic layer was “like mush”. He also sent a video message to Mr Drury complaining that there was standing water on the pitch, including above the drainage lines.[72]On 1 October 2021, Mr Henshaw of Hunts sent to Mr Pickersgill and Mr Drury an email headed “Melton FC – Dynamic options”. He said they were limited on availability from suppliers as well as cost considerations. He identified some alternatives. Regarding GSS, which I understand to have been the supplier of the material used by Hunts in the dynamic layer, he said “Given we reported it a little dusty but then accepted further supply without issue and also requested some extra afterwards, we don’t have a case to argue with the quarry.” In his oral evidence, Mr Hopkinson accepted that by “dusty”, Mr Henshaw meant that there were too many fines in the material. The dynamic layer should have had a low level of fines in it to enable it to drain. Fines would fill any voids, rendering the material less permeable.[73]On 4 October 2021, Hunts replaced portions of the dynamic layer above the lateral drains with gravel. The collector drains or land drains were laid in the ground below the foundation at distances of 10m from each other in trenches that had been backfilled with pea gravel. Hunts removed the dynamic layer and foundation stone above those drainage trenches with an excavator using a trenching bucket about 200mm wide, creating a trench above the existing filled trenches. It filled the trench with pea gravel, with a view to creating drains consisting of more porous material above the collector drains that were already surrounded by pea gravel, to aid the ability of surface water to reach the collector drains. The parties do not agree whether Hunts extended the drains to the surface in this way over the entire pitch or only to the lower, Northern end of the pitch. Melton believes that only the Northern end was treated in this way.[74]On 20 October 2021, Ms Amanda Vickers of Playdeck emailed Mr Hopkinson, copied to Mr Pickersgill, in the following terms:
“I understand that you have instructed the team to not carry out any work today due to the soft area in the entrance,….. If the stone base and pad will not hold the weight of the avant, the spreader and infill contained within it will not be able to run over either. We cannot be held responsible for any marks or dips left in the pad after infill stage due to soft areas. Our pricing assumes mechanical assistance with the rolling out and infill of the carpets, if we have to roll out by hand the price will need to be negotiated as this will take twice as long….”
[75]From this, it appears that there was a concern that the structure, ie the stone foundation, dynamic layer and shockpad would not bear the weight of the machine to be used by Playdeck to lay the carpet without risk of leaving dips or marks in the shockpad.[76]Mr Manship’s evidence, which I accept, is that, between about 26October and 28 October 2021, he stood on the shockpad and his foot sank into the pitch construction, that he complained about that to Playdeck and was told by Playdeck’s staff that the shockpad was not Ecocept.[77]On 2 November 2021, Mr Hopkinson completed and signed various compliance forms required by Greenfields. These were required by Greenfields so the project could be registered on FIFA’s portal. The forms required Hunts to certify how the pitch had been constructed. Mr Hopkinson’s evidence, which I accept, is that he completed the forms in consultation with Mr Pickersgill and Mr Drury and he relied on their knowledge of the project in completing the forms and certifying the facts in them. The form certifies that a sieve curve of the materials provided was available. However, no such test results have been disclosed by Hunts, despite Melton’s’ solicitors having requested them. I infer from the fact they have not been disclosed despite being requested that the tests were not carried out and that the certification was provided by Hunts to Greenfields nonetheless. Similarly, Hunts certified that the infiltration of the sub-base was checked and approved. No such tests have been disclosed and I infer they do not exist.[78]On 8 November 2021, Mr Manship emailed Mr Drury to “confirm you guys laid ecocept under the synthetic carpet, as asked for by the club to provide the stability and shockpad in one, as written on the official quote”.[79]Later that day, Mr Drury responded:[80]“the technical aspects of the email…are perhaps a little difficult to understand. System being installed is as per line one of my email and exactly match the attached lab test report. Which is Greenfields Slide Max Eilte (sic) 145 50mm on a 20mm EL shockpad. We can’t alter the shockpad or infill rates from the test report otherwise the pitch can’t be certified to FIFA, it has to exactly match the lab report. …..”[81]On that same day, Ms Vickers of Playdeck emailed Mr Pickersgill as follows:
“I understand from Ed that you wish us to continue applying the infill to the pitch at Melton Mowbray FC. Can you please confirm your instruction to continue as we can not be responsible for any low areas due to the soft areas.”
[82]On 9 November she emailed again, this time to Mr Drury, with copies to Mr Pickersgill and Mr Hopkinson as follows:
“Shaun, Further to your site visit today, can you kindly confirm what action is to be taken on site for the low areas, as per my previous email we cannot be held responsible for the low areas due to the sub base. Please confirm by return.”
[83]Mr Drury responded that they intended to view any lower areas on Thursday and would instruct what if any works were required.[84]On 12 November 2021, Sportslab conducted a FIFA field test at the pitch and concluded that it failed the tests as a result of ten deviations exceeding the maximum tolerance of 10mm being found on the surface.[85]On 14 November 2021, Mr Manship emailed Mr Drury, asking when the pitch would be finished, saying that deadlines had been missed numerous times, and “the dips In (sic) the pitch from the faulty base are still there. We need to be on it Tuesday at latest”[86]On 15 November 2021, Mr Drury responded that the synthetic elements of the works were weather dependent. He also said as follows: “the undulations in the base you mention are a direct result of your request reduced build specification to fit within your budget, it goes without saying reducing the foundation stone build up by nearly half what was originally suggested has consequences when either the weather and ground conditions aren’t exactly perfect. I believe that the pitch infill is now finished as planned, surface tolerances are being checked today and anything outside the required tolerances will be attended to today before pitch testing tomorrow."[87]From this, it appears that, as the pitch was being constructed, the depth of the foundations was causing a problem, leading to low areas on the pitch, albeit that Mr Drury said he believed the pitch had been finished as planned.[88]On 17 November 2021, Mr Drury emailed Mr Manship attaching quotation Rev#3 and an application for payment and said that pricing option 3 originally sent on 17 June was based on a standard construction of 260mm stone, 30mm dynamic and 20mm layer. He stated:
“As I’m sure you are aware this this (sic) is £10K cheaper than the synthetic element of the current build, however, when you take into account the reduction in stone from 260mm to 120mm you introduce high risk to the build which can and has resulted in shockpad repairs due the reduced build specification. With this in mind I do understand your comments regarding the annotation of the current build has been misleading due to the typo error between version #4 and #5 and to this effect we are willing to absorb the predicted shockpad base repairs to the equivalent value of £10K and therefore as a gesture of goodwill we will reduce the final account figure by the same £10K as per the attached valuation number 13. As per my emails last week I can only apologises (sic) for the confusion caused but reiterate that the synthetic installed system has the (sic) perfectly match the lab tested system…”
[89]Although that correspondence may give the impression that the shockpad was chosen because it had been tested with the carpet for FIFA approval purposes, in fact, the testing took place after contract was formed and it appears that Hunts chose to use the non-Ecocept product and get that tested with the carpet rather than seek to seek approval of Ecocept with the chosen carpet. In his witness statement for the adjudication, Mr Drury suggested that it would be easier to get approval for the product eventually used than for Ecocept, though it is not clear why he believed that to be the case since neither product had been tested with the relevant carpet.[90]I remain unclear as to Mr Drury’s meaning in this email – whether Mr Drury was suggesting that the reference to Ecocept in some of the quotations was an error or whether he was suggesting that the reference to an in-situ e-layer in the later documentation was an error so the wrong product had been supplied, or whether he was suggesting that Hunts’ payment requests were incorrect in referring to Ecocept. Rev#3 did include a 20mm in-situ e-layer that was not stated to be Ecocept, but it also included 260mm of stone foundation. In any event, this email makes clear that Mr Drury was then saying that thinner foundation base had led to the need to carry out shockpad repairs.[91]On 19 November 2021, Playdeck attended site. My understanding is that they made cuts in the carpet to access and level underlying layers in an attempt to achieve a surface within tolerance.[92]On 22 November 2021, Mr Pickersgill met Mr Manship on site regarding visible surface ripples in the carpet. Mr Drury emailed Mr Manship after that meeting stating that Greenfields had suggested that the ripples would settle out with play but that Hunts would monitor them to ensure no lasting problems become apparent. He asked for payment.[93]Mr Manship responded in strong terms, accusing Hunts of mis-selling over the fact the shockpad was not Ecocept, that the offer of £10,000 to compensate for that was an insult, that there were 27 cuts in the carpet, which was rippled, and that he had put the matter in the hands of lawyers and SAPCA.[94]Mr Drury responded that the carpet chosen by Melton “isn’t tested to FIFA standards on an Ecocept shockpad, the only insitu shockpad that can be install (sic) to achieve FIFA certification is the 20mm E layer had has been installed.”[95]On 25 November 2021, Labosport reported that the pitch did not satisfy FIFA requirements. It identified what it referred to as “waves” in the carpets which did not show up as undulations exceeding the +/- 10mm tolerance for the surface, but that they said should be monitored and advice sought from the manufacturer. They stated that the rippling was substantial enough to influence the dynamics of the ball’s interaction with the surface, causing an irregular ball roll. They also stated that three undulations and a wide joint found on the initial inspection had been rectified. They identified six undulations out of tolerance on the playing surface and two in the pitch run off. The undulations were measured between 11mm and 14mm. They noted that these undulations had not been observed on the previous inspection by Labosport and stated “given that these undulations appear to be new, a possibility is that movement in the foundation or formation layers beneath the shockpad has occurred creating these undulations that are measurable and also visible on the top surface layer.”[96]From this, it appears that Labosport believed that the underlying layers below the carpet may have moved since the earlier inspection. They stated the reasons were unknown without intrusive testing and inspection but recommended that the client ask the contractor whether the design took account of the ground conditions on site.[97]Hunts and Playdeck did some further remedial work to the pitch.[98]On 7 January 2022, SportsLab reported that the pitch had passed a FIFA inspection and certified it complied with the requirements of a FIFA Quality Pro pitch.[99]On 25 January 2022, on Melton’s instructions, Labosport reported on the condition of the pitch. They reported that eight new undulations were evident on the surface that had arisen since their last inspection, and that there was rippling across the pitch and loss of pile.[100]On 16 August 2023, Brabners sent to Hunts a pre-action protocol letter, together with a report from Mr Keeley dated 4 August 2022 which identified defects in the pitch.[101]On 22 August 2022, Berwick Law stated that their client would require 56 days to respond and asked for confirmation that Hunts and any expert would be permitted to visit the pitch for the purposes of inspection and an expert report.[102]On 26 August 2022, Brabners agreed to the extension of time and the request to inspect, provided investigations were non-intrusive and Hunts were not in attendance.[103]On 14 October 2022, Berwick Law sent their client’s substantive response to the claim, stating that Hunts had decided not to instruct its own expert, because it considered Mr Keeley’s evidence to be fundamentally flawed and because the complaints were about the substrate and any tests carried out by an expert would need to be intrusive.[104]On 23 October 2022, the pitch flooded, leading to cancellation of a youth game on that date, though it was possible to play on it later that day.[105]On 9 December 2022, Brabners, wrote to Berwick Law, stating that the permeability of the pitch had “regressed at an alarming rate since Mr Keeley’s site inspections” and enclosing photographs showing standing water on the surface of the pitch and other photographs.[106]On 9 January 2023, the pitch failed a FIFA test conducted by Labosport.[107]As the pitch had failed the test, it could not be used for games in Melton’s league. As a result, Melton’s game on 28 January 2023 with Boston Town was postponed.[108]On 20 February 2023, the FA granted Melton a temporary dispensation for the pitch to be used for the remainder of the 2022/23 season, on the basis that it would be remediated and certificated by FIFA before the next season.[109]On 22 June 2023, Ms Katherine Sibley of Harrison Drury produced a witness statement in which she reported further undulations and flooding. She stated that standing water was visible on all areas of the pitch.[110]On 29 June 2023, Labosport identified seven undulations on the pitch greater than the maximum allowed tolerance of 10mm.[111]On 2 July 2023, Labosport reported that the pitch was further deteriorating in its quality as there were both deviations exceeding 10mm and also rippling of the surface, so that, if tested, the pitch would not pass FIFA tests for certification. Labosport concluded that there were on-going issues with the construction methods below the surface and that rolling the pitch would not resolve these issues and would damage the carpet and reduce its lifespan.[112]In early November 2023, both Mr Keeley and Professor Harrison wrote letters in strikingly similar terms recommending the pitch be entirely replaced. Shortly after receipt of those letters, Melton formally engaged PST, with whom they had previously been negotiating for a replacement of the pitch.[113]PST replaced the pitch in its entirety. It appears that the work was originally scheduled to be completed at the end of February 2024 but was in fact completed in May 2024.

THE ALLEGED BREACHES OF CONTRACT - DESIGN, MATERIALS AND WORKMANSHIP

[114]Melton complains that Hunts breached the contract by building a pitch that was defective, both in design and execution. It has identified the respects in which it says the pitch was constructed that breached the contractual requirements, and the effects of those alleged breaches on the pitch. Some of the alleged defects overlap, and some (for example, propensity to flood) are alleged to be the effect of others (for example, impermeability of the dynamic layer and/or lack of attenuation capacity in the foundation layer). To avoid repetition, I shall not follow rigidly Melton’s itemised list of defects but shall consider them together where convenient. The thickness of the foundation stone layer and the formation 115. Was the formation stabilised?

The thickness of the foundation stone layer and the formation

[115]It was put to Mr Drury that, despite that statement in the emails accompanying the quotations that the base would be stabilised below the stone foundation layer to take account of the reduced thickness of the stone foundation of 120mm, Hunts had not stabilised it. His evidence was that rolling the formation and the reference in the quotations to “laser trim and roll formation” was the method of stabilisation referred to the emails. I have found that the contract required the formation to be stabilised so it was suitable for a 120mm foundation, and that trimming and rolling alone is not stablisation. The parties are agreed that this did not happen. The formation was rolled after it had been cut and filled to achieve the required levels, but no other stabilisation took place.[116]Hunts’ own certification to Greenfields as to the method by which the pitch had been built stated that the sub-grade had not been stabilised.[117]The pitch experts agree that the ground was not stabilised.[118]I find that the formation was not stabilised as required by the Contract. The actual depth of the foundation layer[119]The Final Quotation, which formed the specification for the work under the contract, stated that the foundation stone layer would be 120mm thick. I have found that that means that the finished, compacted layer of the foundation stone was to be 120mm thick. The parties are agreed that the foundation stone layer was not uniform. Its thickness ranged between 100mm and 120mm thick. Insofar as it was below 120mm, it was built in breach of the express requirements of the contract. The appropriateness of the designed depth of the foundation layer[120]Melton’s case is that Hunts’ design was also defective because 120mm was too thin a foundation layer for the ground conditions without stabilising the ground, either mechanically by using a geogrid or chemically by using lime or cement. I have found there was a contractual obligation to stabilise the ground to make it suitable to support a pitch on a 120mm foundation.[121]Section 1.5 of the SAPCA Code (which both parties agree was part of the Published Parameters) recommends sub-bases (which I understand would include the foundation layer and any dynamic or bound layer above it) should be at least 300mm thick:
“The minimum compacted thickness of sub-base stone should be 300mm, unless formation conditions dictate otherwise, situations were an extremely good formation is found may allow the sub-base to be decreased, conversely poor formation conditions may require an increase in sub-base depth.”
[122]The SAPCA Code does not define “extremely good”. It also provides “For guidance only and based on reported industry practice, constructed depths of permeable granular sub-base has commonly been installed at 250-300mm total thickness on stable formations for full-sized pitches... A stable formation is expected to achieve a (inferred) CBR of 5% or more at the time of construction, as set out in section 4.2.1”[123]Section 4.2.1 of the SAPCA Code provides that that a California Bearing Ratio (“CBR”) of ≥ 5% is recommended for a stable formation in outdoor synthetic sports surfaces. Therefore, “extremely good” must mean a CBR significantly in excess of 5%.[124]The FIFA Preparation Document provides that a CBR of ≥ 5% is recommended for a stable formation at the time of construction.[125]Paragraph 5 of the FIFA Handbook provides that the formation and sub-soil should have sufficient bearing capacity to support the playing surface and any machinery used to maintain the surface.[126]It is clear that the SAPCA Code and the FIFA Preparation document both indicate a minimum CBR of at least 5% for a stable formation. The SAPCA Code indicates a minimum depth of 250mm for the foundation layer on formations with a CBR of at least 5%. In my judgment, it is clear that, for a sub-base of less than 250mm-300mm, a minimum CBR of more than 5% across the site would be required. Only if the CBR exceeded that rating sufficiently so that the formation could be described as “extremely good” would it be appropriate to consider a thinner sub-base. I consider “extremely good” indicates a CBR significantly in excess of 5%. Whether the formation was sufficiently stable without stabilisation to allow for a foundation layer of less than 250mm[127]Hunts accepts that it did no CBR testing of the ground. Its position is that it did not need to do so, because it made an assessment of the ground when it began the work. Mr Pickersgill’s evidence was that he had the necessary experience to assess the stability of the ground without formal testing, and that testing would have been carried out had he any concerns that the ground may be insufficiently stable.[128]Hunts’ position at trial was that, if the formation is sufficiently strong to bear the weight of the machines used to construct the pitch, it has a sufficiently high CBR for all purposes. However, Hunts does not specifically address in its evidence the relationship between the CBR, whether assessed by testing or by its method of assessing the ground conditions by eye, and the effect of reducing the foundation layer from the recommended minimum of 250mm-300mm. Its witnesses did not explain how it was able to assess the appropriate depth of the foundation layer from an inspection of the ground during the work. The pitch was designed with a 120mm foundation layer and a 30mm dynamic layer (total sub-base of 150mm) before the work began, and before the ground could be assessed by Hunts’ method of visual inspection.[129]Mr Drury conceded that, if the capacity of the ground was insufficient, it would have been Hunts’ problem, because the quotation did not reserve Hunts’ right to charge more in the event that the ground capacity was insufficient for the reduced foundation layer, though he also suggested that normally that would lead to a conversation with the client.[130]The method statement that Hunts completed after the pitch had been built and provided to Greenfields stated that the soil was clay, and that the sub-grade was stable.[131]Between April 2022 and November 2023, CBR testing was carried out by Dynamic Cone Penetrometer (“DCP”) testing on four occasions. The inferred CBR at different locations of the pitch taken on those occasions was variable. The lowest result (from one of three test sites tested on 27 April 2022) was 0.5%. The highest result (achieved at one location on 12 May 2021) was 13.3%. Eighteen locations were tested on 29 November 2023, with an average inferred CBR from those tests of 3.5%. The lowest CBR on that occasion was 2.6%.[132]Mr Keeley, in the joint report with Dr Hawkins, agreed that the “construction supported construction loads as the pitch was built”. However, he did not agree with Dr Hawkins that that indicates that the formation was stable enough for the sub-base thickness supplied.[133]Mr Keeley opined that “the average CBR values should not be used alone, as they do not prove that the formation is consistent” and that even using the average CBR value of 3.5% revealed in the tests, there would be no reason to deviate from the SAPCA requirements. The SAPCA Code suggests a minimum of 250mm for ground with a minimum CBR of 5%.[134]Mr Keeley also explained that he had sought to derive an equilibrium CBR from the classification of the soils and the plasticity index from the report on ground conditions obtained from Erda by SSL, of 25-26%, and that he would derive a CBR in the range of 3-4% and would have anticipated a design CBR not exceeding 4%.[135]Dr Hawkins’ evidence was that the formation was sufficiently strong because it could withstand the weight of the machines during construction. In his report, he said “the actual CBR of the formation at the time of construction (and therefore the required depth of Type 3 stone) is unknown, but the formation at that time was capable of withstanding the loading of construction machinery, as was the depth of stone installed.” He relied on photographs of the formation during construction in support of that statement. In his report, he stated that he has previously seen depressions “usually in the order of 50mm or more in depth” on “pitches having a weak formation”. He stated “No such areas have been seen on the MTFC pitch. All of the above suggest that the CBR was might higher than 5% at the time of construction and was capable of supporting construction loads and that the sub-base was adequate structurally”.[136]However, Dr Hawkins did not explain how he was able to conclude from the photographs the CBR was above 5%. His report contains no data as to how the levels of depression in the ground caused by particular loads correlate with likely CBR figures. He did not quantify the strength of the formations of the pitches which he had seen that had weak formations, the loading on the ground required to produce depressions of 50mm, or how that loading compares with the loading imposed by the vehicles in the photographs.[137]Further, the photographs he relied on include a photograph a dumper truck on the formation. It is not possible to tell whether it is loaded, but there is no load visible above the side of the skip. There are what appear to be visible tracks on the surface of the formation where it has driven, which appear to be shallow. Other photographs on which he relied show in the distance a van, a medium sized pick-up truck which does not appear to be loaded, a fairly small tractor and a larger tracked vehicle in the middle distance. It is not possible to discern the effect of those vehicles on the ground from the photograph. There are some tracks in the ground in the foreground of the photograph, some of which appear to be from a tracked vehicle and some from wheeled vehicles. The tracks appear to be fairly shallow. Another photograph shows an empty flatbed trailer towed by what appears to be an SUV.[138]In his oral evidence, Dr Hawkins accepted that a tracked vehicle spreads the load over a wide surface area and the loads imposed on the ground can be less than somebody walking across the ground. It is not surprising therefore that the heaviest item of plant shown in the photographs, a tracked excavator with a blade on the arm used for levelling, would not deform the dry ground significantly, because it is on tracks designed to spread the load over a wide area, to avoid the machine sinking into the ground.[139]The photographs suggest the ground was dry at the time. There are visible cracks in the surface of the ground, typical of clay soils that have dried out. The parties are agreed that clay soil is much more stable when dry than when wet. Whilst the photographs demonstrate that none of those vehicles appeared to be sinking into the dry ground, they do not show the effect of the vehicles in the distance and do not show the effect of the greater loads that would be imposed by the large tipping stone lorries on wheels or the concrete trucks used to deliver concrete to form paths around the track which were driven across the pitch during construction. Dr Hawkins conceded in his oral evidence that such vehicles would impose greater loads on the formation than those which he saw photographed, and that he did not recall having seen photographs of the pitch when such vehicles had been driven over it. He did not provide any analysis of the likely loads imposed by the vehicles photographed. It is not clear to me how, in the absence of any such analysis, he was able to give the opinion he expressed.[140]Dr Hawkins dismissed the results from the Labosport CBR tests from October 2023 and suggested that the average CBR result of 3.9% “cannot be correlated to the CBR at the time of construction”. He argued that the sub-soil would be wetter after the artificial pitch was built than when it was a natural turf pitch, because the topsoil in which the grass was growing before the artificial pitch was built was of lower permeability, protecting the sub-soil from moisture. However, he did not provide any data to support this assertion or to quantify the likely changes. Nor did he address the effect of the actual permeability of the dynamic layer as built, compared with its designed permeability (as to which see below). Nor did he explain the effect of the change to the drainage under the pitch. It is my understanding that, beforethe new pitch was built, there was no drainage under the pitch, whereas the new pitch included lateral drains running at 10m intervals across the pitch to conduct water away from the pitch.[141]There is no evidence before me to give me any guidance as to what conclusion should be drawn as to the CBR of the formation based on the photographic evidence.[142]Although he stated that the CBR was “much higher than 5%” in his report, Dr Hawkins stopped short of stating the ground was “extremely good” so as to meet the criterion at which the guidance indicates a reduced foundation layer may be possible. I am not satisfied by Dr Hawkins’ bald assertion that the photographs indicate a CBR “much higher than 5%” or that it might indicate a CBR of 5%, based on his own impressions. I found his evidence on this issue unsatisfactory.[143]Dr Hawkins did not provide any explanation as to the cause of undulations in the pitch, if the formation was sufficiently stable to permit the reduced thickness of foundation. Although he suggested that the condition of the pitch had not worsened over time, he did not inspect the pitch on the occasions when Mr Keeley inspected it, and Mr Keeley’s reports indicate that the undulations increased over time.[144]I have no confidence in Dr Hawkins’ opinion that the CBR was sufficiently strong to dispense with the usual requirement of a sub-base of 250mm to 300mm for a pitch with a CBR of 5%.[145]Mr Keeley’s evidence is based on test results. His report sets out the CBR test results from tests between 2022 and 2023. Those show that the CBR was irregular, that the average was well under 5%, and some results very much lower than that.[146]He also relies on a report provided by Erda to SSL when they produced the planning drawings of the proposed drainage scheme for planning permission, which stated that the formation was “stiff clay” with a plasticity index of 25% to 26% from which Mr Keeley derived a CBR of 3-4%[147]I prefer the evidence of Mr Keeley on this issue to that of Dr Hawkins. Mr Keeley’s evidence, which I accept, is that there is no evidence that the formation was “extremely good” so as to justify departure from the guidance of 250-300mm and that it is likely that the formation had a CBR of around 3%-4%.[148]It is also of note that, when Melton complained of undulations, Mr Drury’s response, in his email of 15 November 2021, was as follows:
“the undulations in the base you mentioned are a direct result of your requested reduced build specification to fit within your budget. It goes without saying reducing the foundation stone build up by nearly half of what was originally suggested has consequences when either the weather and ground conditions aren't exactly perfect.”
[149]Mr Drury acknowledged in this email that the reduced foundations led to movement in the base. It appears from this that his initial reaction was consistent with Mr Keeley’s view.[150]Mr Drury accepted in cross examination that Hunts had not warned Melton that the reduced foundation might have the result of undulations in the base.[151]Mr Keeley’s conclusion, which I accept, is that the formation was probably weak and Hunts should have stabilised it by mixing lime and/or cement into the formation material or adding a geogrid plastic mesh to the stone layer above it, even for a sub-base thickness of 250mm-300mm.[152]I find that the CBR of the ground was below 5%. The stability of the ground was not “extremely good” so as to justify departure from the SAPCA Code. Thickness of stone and attenuation capacity[153]It is not in issue that the reduced thickness of the stone foundation reduced the attenuation capacity of the pitch. Mr Keeley calculated it would have a capacity of 103.4m 3 Dr Hawkins’ report did not comment on its capacity, but his oral evidence was that he had calculated it to, as afar as he could recall, about 90m 3.[154]In the absence of any evidence from a drainage expert as to the combined effect of the omission of the flow restriction on the outfall and the reduced attenuation capacity, it is not possible to know the precise effect of the reduced attenuation capacity on the flood risk to the pitch. However, the capacity was clearly significantly below the capacity indicated in the drainage strategy provided by SSL which formed the plans for which planning permission was granted.

Permeability of the dynamic layer

[155]Melton’s case is that the dynamic layer contained too high a proportion of fines, rendering it impermeable. Hunts does not dispute that the dynamic layer was not sufficiently permeable, so that it did not drain to the foundation stone layer below it as it should have done, but contends that Hunts’ inclusion of free draining material in trenches running above the drains in the ground mitigated the issue.[156]The SAPCA Code contains detailed requirements for the grading of the material forming a dynamic layer, and the percentage of its content that should pass through sieves of various sizes.[157]Mr Keeley reported on test results of the dynamic layer carried out in October 2023. The results of nine tests showed between 7.3% and 27% of the material consisted of fine particles, compared with the limit of between 0% and 5% required by the SAPCA Code. Mr Keeley concluded that the level of fines was too high and that the dynamic layer had self-binding qualities causing the dynamic layer to harden when compacted.[158]The SAPCA Code explains why this is important:
“the choice of the grade of stone, the thickness it is laid and its degree of compaction will have a profound effect on the ultimate playing characteristics of the pitch. The fines content of the upper layer of stone must be constantly checked to ensure that the required degree of porosity is maintained. If the fines content becomes too high it may be prone to movement with changes in moisture content and over time; therefore maintenance of level tolerances and drainage properties may be adversely affected.”
[159]It is clear that higher level of fines in the dynamic layer would mean that the layer was not sufficiently porous and that the changes in the moisture content in a less porous material could lead to movement of the dynamic layer and that the SAPCA Code recommended that the fines content be constantly checked. Despite having certified to Greenfields in the Greenfields Method Statement that it had done so, there is no evidence that Hunts carried out any tests of the material to check the proportion of fines in the dynamic layer before laying it.[160]It is also clear from the contemporaneous documents referred to in the chronology above that Hunts was aware that the level of fines in the material it had used in the dynamic layer was too high soon after it was laid. The correspondence acknowledges that the material was “dusty”. Further, Hunts decided to change the design during construction to put more freely draining gravel above the lateral drains running under the foundation stone. In other words, Hunts excavated 20mm trenches through the dynamic layer and foundation layer above the drainage runs and backfilled with pea gravel in an attempt to resolve the problem that the material used for the dynamic layer was not sufficiently porous.[161]Mr Keeley’s evidence, based on double-ring infiltrometer tests that he conducted on 13 October 2023, was that the dynamic layer had a permeability rate of between 2.7mm/hr and 23.1mm/hr, which is obviously a very small fraction of the 500mm/hr requirement of the SAPCA Code. Dr Hawkins accepts that the dynamic layer is likely not to have drained at the rate of 500 mm/hr but criticises the way those tests were conducted and considers the results unreliable. He was present during those tests and did not comment on their methodology at the time. In his oral evidence, he said he did not consider it appropriate to do so as an observer of the tests. Nor did he seek to carry out his own tests.[162]There is no real issue that the dynamic layer had a permeability rating that was a very small fraction of that recommended in the SAPCA Code.[163]Dr Hawkins stated that:
“This would have been mitigated by the drainage trench extensions installed by Hunts. These trenches, back filled with drainage gravel, were cut through the dynamic layer to its upper surface, directly above the existing drains, and connected with the drainage trenches beneath the type 3 sub-base. It is my opinion that the alleged defects are not the result of low drainage rate of the dynamic layer. Since water would have been moving over the dynamic base to a similar extent over the entire pitch surface, had there been any consequences from this movement, it would have been seen over the entire surface…. The installation of a dynamic layer with reduced permeability but with drainage trench extensions would result in a drainage system which combined the properties of both a vertical system and a lateral (horizontal) system as described in the FIFA [Code of Practice]. It may assist if the rate of 500 mm/hr is analysed in terms of normal rainfall for Melton Mowbray. Meteorological office records show that the average annual rainfall is approximately 1200 millimetres per year. 500 mm/hr is therefore equivalent to five months’ of normal rainfall falling in one hour. It is, therefore, entirely possible for the drainage rate to be much lower than 500 millimetres per hour without the utility of the pitch being affected in any way. In any event, any failure of the dynamic layer to drain vertically was mitigated by the additional trench extensions…..”
[164]Dr Hawkins’ assertion that the impermeability of the dynamic layer was mitigated by the extension to the lateral drains is unsupported by any quantitative data. There is no evidence as to the relative permeability of the drainage trenches compared with the 500mm/hr that was recommended for the entire pitch, or the rate at which the drainage trenches could remove water that would otherwise have permeated the dynamic layer where it fell onto it.[165]Nor is there any evidence that the recommendations for the permeability of 500mm/hr for the dynamic layer across the whole pitch are excessively cautious. I am aware that high permeability rates are often specified for surfaces to avoid surface flooding, which can occur within minutes of heavy rain in certain conditions. As Dr Hawkins acknowledges in his report, he is not a drainage expert and I do not accept his evidence, unsupported by any literature or data, that it is possible for drainage rates to be lower than 500mm/hr without affecting the utility of the pitch, based on the annual rainfall of Melton Mowbray. His statement does not enable me to conclude that the guidance in the SAPCA Code is unnecessarily cautious so that a lower rate is appropriate, let alone a rate as low as less than 5% of the permeability recommended.[166]Further, his report does not address the issue identified by SAPCA of the possible results from insufficiently permeable dynamic layers, which is that the variation in moisture levels in the dynamic layer can cause it to move. This is exactly what Melton and Mr Keeley says has happened to the pitch.[167]Further, in answer to one of my questions, Dr Hawkins conceded that the extension of the lateral drains to which he refers is not equivalent to the lateral drainage system described in the FIFA Code which he replicated in his report. The lateral drainage system illustrated is a drainage cell which covers the entire pitch, draining to drains at the perimeter of the pitch. It is not a system where water sits in the shockpad or the carpet and flows across the top of the dynamic layer it until it reaches lateral drains laid every 10 meters, where it would have the opportunity to drain into the drainage trench. It is a system that, according to the FIFA Code, “allow[s] the water to flow down through the football turf into some form of drainage cell that allows then allows (sic) the water to flow horizontally to permitter collector drains.” The pitch as built did not have such a drainage cell. The only way the water could drain would be across the surface of the dynamic layer and through the synthetic layers towards the drains running every 10m across the pitch. I therefore find it hard to understand Dr Hawkins’ statement that the extension of the lateral drains by Hunts “combined the properties of both a vertical system and a lateral (horizontal) system as described in the FIFA CoP”. It does not appear that it did, since it did not include a drainage cell covering the pitch beneath the synthetic layers to convey the water a drain. In effect, the carpet and the shockpad would become that “drainage cell”. There is no evidence before me that either material is designed for, or capable of, acting as a drainage cell of the sort illustrated in the diagram included in his report.[168]Further, Dr Hawkins’ stated opinion is that the low drainage of the pitch would have been mitigated by the vertical extensions to the drainage trenches to which I have referred (ie replacing the dynamic layer and foundation layer in strips above the drainage runs running laterally across the pitch). However, he does not go so far as to say that it was completely mitigated, or to what extent it was mitigated.[169]The SAPCA Code required the entire pitch to have a permeability of 500 mm/hr. Hunts’ case is that the pea gravel drainage runs above the collector drains mitigated that defect. I calculate that the drainage runs, which were 200mm wide and were laid every 10m, would cover about 2% of the pitch surface if they had been laid (as Hunts contends) the entire length of the pitch, or about 1% of the pitch if they were laid on only the Northen end of the pitch (as Melton contends). There is no evidence before me from which I would be able to conclude that those drains, covering, at best, 2% of the pitch and of unspecified permeability rates, would be sufficient mitigation to compensate for the entire pitch having a permeability rate that was less than 5% of that recommended, so as to prevent the risk of water accumulating on the pitch at times of very heavy rain.

The permeability of the foundation stone layer

[170]Mr Keeley’s evidence is that the foundation stone layer did not comply with MOT Type 1X that was specified in the contract. Mr Keeley’s report commented on tests on the stone. Five of the nine samples failed the requirements, because they contained too high a percentage of smaller particles. The results of the tests are set out in Mr Keeley’s report. By way of example, whereas only 0-5% of material should pass through a 0.063mm sieve, five of the samples contained between 10% and 23% of material that passed through such a sieve. Whereas only 0-20% of material should pass a 0.5 mm sieve, five of the samples contained between 21% and 40% of material passing through a sieve of that size. The effect of a higher proportion of finer particles would be to render the foundation layer less free-draining and would reduce its attenuation capacity, as smaller particles fill the voids that would otherwise exist in it.[171]Dr Hawkins questions these results. He suggests that the level of smaller particles found in these test results is likely to be the result of contamination from the dynamic layer. He notes that all four samples tested by another testing house were of the correct grading and suggests that the similarity between the description of the material tested in the failed test results was similar to the description of the dynamic layer. However, there is no evidence other than Dr Hawkins’ speculation that the results are due to incorrect testing procedures.[172]I find that the results are likely to be accurate and accept Mr Keeley’s conclusion that the foundation layer contained too great a proportion of fine particles so that it would not drain as efficiently as it would have done had the specification been met.[173]I am supported in that by the evidence that trial pits dug under Mr Keeley’s direction into the foundation layer filled with water and did not drain.[174]I find that the foundation stone layer was not sufficiently permeable and did not meet the required profile of MOT Type 1X stone.

SUMMARY OF BREACHES OF CONTRACT

[175]In summary, I find that Hunts was in breach of contract by: 175.1. designing a pitch with a 120mm foundation layer without stabilising the formation so that it was “extremely good”, or had a CBR of significantly over 5%; 175.2. constructing a pitch with an uneven foundation layer, some of which was below the 120mm specified in the quotation that formed part of the contract; 175.3. laying a dynamic layer that contained too high a proportion of fines, so that it was impermeable, with the permeability rate a small fraction (less than 5%) of the recommended rate; 175.4. implementing a remedial solution to the impermeability of the dynamic layer that did not resolve the problem of the impermeability of the dynamic layer; 175.5. laying a foundation layer of material that contained higher percentages of smaller particles that met the specification for Type 1X stone; and 175.6. laying a shockpad that was not an Ecocept shockpad. DID THE ALLEGED DESIGN, MATERIALS OR WORKMANSHIP DEFECTS CAUSE THE PITCH TO BE DEFECTIVE SO THAT REMEDIAL WORK WAS REQUIRED?[176]Melton alleges that the breaches of contract caused the surface of the pitch to be liable to holding surface water or flooding, caused the surface to be rippled, and led to undulations in the pitch in excess of the specified maximum of 10mm measured with a 3m straight edge.

Ripples

[177]Melton’s’ case is that the impermeability of the dynamic layer led to ripples on its surface, which could be seen through the carpet. They are generally more or less parallel but slightly curved ridges running across the pitch. The ripples were under the 10mm tolerance for deviations in the finished surface of the pitch, but were clearly visible, particularly when the sun was low in the sky, and caused the ball to “bobble” as it ran over them. They caused the pitch to fail FIFA tests on visual inspections.[178]Dr Hawkins considers the ripples were not caused by the impermeability of the dynamic layer, but existed before the shockpad was laid. He argues this for two reasons: the location of the ripples and the depressions in the bottom surface of the shockpad when it was lifted.[179]His opinion is that, if the ripples were caused by water flowing over the surface of the dynamic layer, they would be parallel with the direction of flow of the water (ie running from South to North) rather than being broadly lateral across the pitch. He does not explain why he is of that view. My impression was that he considered it to be obvious. However, it far from obvious to me. It seems to me more likely that water flowing across an even surface with a very gentle fall would cause material to be washed to the point where the water ceases to flow (possibly because it is eventually absorbed into the dynamic layer or because the rain had stopped), depositing the material on the surface more or less perpendicularly to the direction of the flow of the water. Such is the action of waves on a beach, or a gradually retreating body of water, leaving the sediment deposited at in lines along the retreating edge of the flow of water. The photographs of the surface of the dynamic layer after the shockpad had been removed resemble the pattern that can be seen in wet sand on a beach and are highly suggestive of water flowing across the surface having caused them. The fact that the ridges are gently curved also indicates they are deposits caused by water flowing over the surface of the dynamic layer.[180]Further, the pitch did in fact fall slightly from East to West, not only from South to North.[181]Dr Hawkins’ opinion was that the ripples in the surface were formed when it was laid. He based that on the fact that the shockpad, when removed, bore the impression of the ripples in its bottom surface. However, he was unable to offer any explanation of the mechanism by which the ripples could have occurred during construction. The dynamic layer was laid with a paviour and Mr Pickersgill’s evidence, which I accept, was that it was flat when it was laid to within the tolerance to which he was working (5mm, though the contract specified a 3mm tolerance for the dynamic layer). I am unable to imagine how a dynamic layer laid with a paviour could result in the natural looking, slightly curved, ripples across the pitch. Nor did Dr Hawkins explain why it was not possible for the underside of the shockpad, if it had lain for some time over a rippled surface under a heavy carpet and had been subjected to pressure from use and maintenance of the pitch, to have become deformed over time by the surface on which it lay. The fact that an elastic surface would not be equally deformed on its top surface as it was on its bottom surface if it sat on a rippled base does not appear to me to be proof that the surface must have been rippled before it was laid.[182]There is also the rather obvious point that, if the ripples had been caused during construction, Mr Pickersgill would presumably have corrected them before the shockpad was laid. It is highly improbable that he would have allowed the shockpad to be laid on a rippled dynamic layer, rather than levelling it before doing so.[183]I prefer the evidence of Mr Keeley, whose opinion is that the ripples were formed by water flowing across the dynamic layer because it was insufficiently permeable. Indeed, given the extremely low permeability of the dynamic layer, it seems obvious that water would have flowed across it at times.[184]I find that the ripples were caused by water flowing over the surface of the dynamic layer because the dynamic layer was impermeable.

Undulations

[185]In addition to the ripples referred to above, Melton complains that the pitch suffered from undulations. To pass FIFA tests, the pitch could not deviate by more than 10mm along a 3m straight edge. It is not in issue that the pitch had irregularities exceeding the specified tolerance. Undulations were apparent from the completion of the pitch. Melton’s evidence is that the undulations were increasing in number with time. Dr Hawkins does not accept that, but I accept Mr Keeley’s evidence on that issue. He inspected the pitch on numerous occasions. Dr Hawkins is reliant on reviewing documentation on this issue.[186]Mr Keeley’s evidence is that this was probably caused by the inadequate thickness of the foundation layer, which did not prevent swelling and shrinking of the clay formation as water levels altered, or frost heave.[187]Hunts’ case is that they were caused by poor maintenance, such as failure to redistribute the pitch infill material after use, possibly in combination with defects in the planarity of the dynamic layer. It argues that there is no evidence of movement of the foundation itself. It also argues that there is no evidence of the weather events alleged to have led to such movement.[188]I have found the formation was not sufficiently stable to justify reducing the sub-base from the recommended total of 250mm to 300mm to a total of 150mm (120mm for the foundation and 30mm for the dynamic layer).[189]The SAPCA Code explains that the depth of the foundation also affects the risk of movement caused the formation drying out in the summer or by frost heave. The deeper the foundation, the greater protection against ground movement caused by changes in the moisture content caused by changes in the weather (contraction due to drying out in the summer and expansion due to getting wet in the winter). In addition, as Dr Hawkins acknowledged, in the UK, the anticipated depth of ground likely to be affected by frost is 450mm. It is obvious therefore that the ground beneath the foundation layer is at risk of the effects of frost, whether or not frost actually caused the issues that had arisen by the time the pitch was replaced.[190]I accept Mr Keeley’s evidence that the likely cause of the undulations was the inadequate depth of the foundation layer, which did not sufficiently protect the formation from movement due to changes in moisture content and/or frost heave. The foundation layer was about half as deep as recommended. The formation was probably less stable than recommended even for a 250-300mm sub-base, let alone a sub-base of 130mm-150mm as constructed. The immediate reaction of Mr Drury when Melton first complained of the lack of planarity in the surface of the pitch was that it was caused by the reduced thickness of the base layer. He wrote: “the undulations in the base you mention are a direct result of your request reduced build specification to fit within your budget, it goes without saying reducing the foundation stone build up by nearly half what was originally suggested has consequences when either the weather and ground conditions aren’t exactly perfect.[191]I do not consider evidence of extreme weather events in the period is required in order to prove Melton’s case, as Hunts has suggested. There is no evidence that extreme conditions would have been required to cause such movement.[192]Further, Melton was entitled to a pitch that was reasonably durable. There can be no doubt that the pitch was susceptible to movement and frost heave as a result of the reduced foundation thickness on a formation that was insufficiently stable to justify the reduced foundation and was clay (which is known to be susceptible to changes in volume due to changes in moisture levels).

Water on the pitch surface

[193]The evidence shows that the pitch flooded on a number of occasions. It flooded, causing flooding to the neighbouring school, during construction. After completion, it flooded in October and December of 2022 and June and October of 2023.[194]Melton claims that the pitch was defective in two respects that are likely to have caused water to accumulate on the surface of the pitch: the impermeability of the dynamic layer and the lack of attenuation capacity in the foundation layer. Hunts’ case is that the flooding of the pitch was probably caused by or partly caused by an obstruction of the drains downstream.[195]I have found that the dynamic layer was highly impermeable and that it led to water flowing across the pitch. There is no evidence to suggest that including drain runs at 10m intervals covering 2% of the pitch would compensate for the extreme impermeability of the dynamic layer. I find that the impermeability of the dynamic layer caused or contributed to the pitch flooding.[196]I have also found that the foundation layer contained a higher level of smaller particles than specified for MOT Type 3 or Type 1X stone, which would reduce its permeability and attenuation capacity.[197]The drainage scheme produced by SSL for planning purposes included a foundation layer of 250mm and had an attenuation capacity of 230m 3, of which 82m 3 was the capacity of the drains themselves. From this, it appears that a 250mm foundation layer would have had an attenuation capacity of 168m 3 within the foundation layer itself. Mr Drury’s oral evidence was that, when Hunts quoted for a pitch with a 120mm foundation layer that he assumed that the pitch would not need any attention capacity. Although he had initially denied having received the SSL drainage plans before quoting for the work, Mr Drury corrected that evidence at the start of the trial and confirmed at trial that he had received them. He accepted that he should have considered them before quoting, but did not, probably due to pressure of work at the time.[198]The purpose of attenuation is to hold water if the drainage to take surface water away from a site cannot cope with a short-term sudden influx of water, such as following a period of heavy rainfall. The water is retained in the attenuation space until it can flow away through the drains. It is obvious that, in general terms, a lower attenuation capacity will render it more likely that the surface will fail to drain and become waterlogged.[199]Dr Hawkins’ oral evidence was that, although he had not included his calculations or the result of them in his report, he had calculated the actual attenuation capacity of the pitch as built at about 90m 3. Mr Keeley’s evidence is that the attenuation capacity of a pitch built with a foundation layer of 120mm would be about 103.4m 3. It is clear that the attenuation capacity of the pitch as built was less than half the attenuation capacity that it would have had had it been built with the deeper foundation layer assumed in the SSL drainage scheme.[200]When he considered the SSL plans, Mr Drury appreciated that the pitch design for which Hunts had quoted would not comply with the drainage plan provided to the planning authority and would not comply with the planning permission. The drainage plan included a flow restrictor on the volume of water leaving the site, and attenuation of the water under the pitch in the drains and in the foundation layer. As built, the pitch did not comply with planning permission, not only because it did not include the limiter on the outflow to reduce outflows from the site but also because the attenuation capacity was less than identified in SSL’s drainage plans.[201]When Mr Drury realised that, he made an assumption that removing the flow limiter on the outflow would compensate for the reduced attenuation capacity. He assumed that, without the limiter, there would be no need for any attenuation of water on the site. In other words, he assumed that the drains downstream would be able to cope with high levels of rainfall in a storm without any limit. However, there is no evidence that he had any knowledge of the condition of the drains downstream or the rate at which they would be able to cope with water reaching them, so that there would no need to attenuate water at all on site. Nor is there any evidence that he had the expertise to know that, without the limiter, the reduced attenuation capacity of the pitch would be sufficient. His evidence was that the restrictions downstream would not have been an issue because the pipe into which the water would flow from the pitch was larger than the one from which it flowed. He suggested this may have changed when a housing development was built in the area through which the drain passed. However, that estate was under construction in May 2021, which was before the contract was formed. In any event, the size of the pipe at the point at which the water flows into it is not necessarily indicative that there will be no downstream restriction.[202]Whilst Hunts did warn Melton that the pitch would not comply with the planning permission if the flow restrictor was omitted, it did not warn Melton that there might be a risk of flooding as a result because the attenuation capacity might be required in times of heavy rainfall if the downstream drains could not cope with the influx of water. It warned that “the reduced stone thickness. ..will reduce the capacity of water attenuation possible within the pitch build up and by omitting the outfall restriction this will negate the attenuation problem but it will mean that the pitch won’t be built as per planning design. A flow restrictor device can be fitted retrospectively to the outlet but if this is done it will mean that that pitch could stand in water on the low side or require the installation of an attenuation tank to prevent this.” The warning was that there was a risk of flooding if the restrictor was fitted, that the risk was to the low side of the pitch, and that it would be resolved by the addition of an attenuation tank in an unspecified location at an unspecified cost.[203]Hunts did not warn that there was a risk of flooding even if the flow restrictor was omitted.[204]It is likely that the reduced attenuation capacity caused by the reduced foundation layer actually contributed to the waterlogging that occurred. Even if did not, it clearly added to the risk of flooding, as less water could be held under the pitch at times when the drains might be overloaded. Hunts did not warn Melton of that risk.

Hunts’ argument that waterlogging of the pitch was caused by a defect in the drains

[205]Although not part of its pleaded case, Hunts sought to rely at trial on an argument that the cause of the pitch flooding was inadequacy of the drains downstream. In particular, it argued that a crushed plastic drain between the manhole into which the collection drains from the pitch flowed and the drain taking the water off site was or might be the cause of standing water on the pitch surface.[206]To put this unpleaded contention into context, Hunts had made an application that was heard at the pre-trial review for permission to rely on additional evidence it wished to obtain from a drainage expert to investigate this issue. It argued that it had only recently become aware of the occasions when the pitch had flooded, which was why the application was made shortly before trial. That was not factually accurate. Hunts conceded that to allow the evidence would lead to the trial being adjourned, because the proposed drainage expert would need to carry out surveys and investigations. The application was refused. The rather unsatisfactory position at trial, therefore, was that Hunts sought to argue, based on some photographic and video evidence, without having pleaded its case on drainage and without the benefit of a drainage expert, that the cause of the flooding of the pitch was, or was partly, a downstream blockage of the drains.[207]Hunts relies on a CCTV drain survey of the drains carried out by Happy Drains for Melton. My understanding of Hunts’ contention is that the drain survey showed that a carrier drain downstream of the chamber into which the collector drains under the pitch flowed, which was a perforated corrugated plastic drain rather than a solid twin wall drain of the type that would be expected in that location, was partially crushed, so that part of it was occluded. Mr Keeley’s report stated, and I understand it is not contentious, that the pipes between the pitch and the eventual outflow should have been solid twin wall pipes, not perforated collector pipes.[208]Mr Keeley accepted that the report suggested that the Happy Drains survey stated that there was a 60% reduction in the pipe where it had been crushed, though he noted that was their estimate. He also observed that the CCTV photographs from the survey showed that the level of the water in the drain immediately before the occlusion was the same as the level in the remainder of the drain, suggesting that the occlusion was not restricting the drainage of the water at that point on the date of the survey and the drain was still working. Mr Keeley’s evidence was that the capacity of the drain where occluded was likely to be sufficient to cope with the outflows, and the fact that the water was not backing up upstream of it supported his view.[209]There is no evidence as to how that drain became occluded. It is my understanding is that it was laid by Hunts. However, as I understand it, Hunts’ position at trial was not that Melton was responsible for the drain being crushed, but that Melton should have realised that a crushed drain, rather than other defects, was causing or contributing to the flooding of the pitch and that it was unnecessary to replace the pitch in its entirety to cure the flooding problem.[210]Hunts also relies on a video of someone holding a section of corrugated pipe that had clearly been crushed so it was almost flat. I place little very little weight on the video of the crushed pipe after it had been removed from the ground. There is no evidence that it is the same section of pipe as was identified in the drain survey as partially occluded, although it came from the same area. Even assuming that the pipe was the same pipe as shown in the CCTV footage, it is certainly not in the same condition as it was in the CCTV footage. In that footage, there is a kink in the side of the pipe, but it is not crushed flat. Water is still flowing beyond the kink. The pipe in the video has been crushed flat over a considerable length. There is no evidence of its state before it was removed or how it was removed. The video shows an excavator with a trenching bucket digging up the drainage pipe. The excavator driver would have no reason to take care not to crush the pipe as it was being removed. There is no witness evidence on this point at all. All that can be said is that, after it had been removed, it was in a crushed, almost flattened, state. My impression was that it appeared to have been flattened by an excavator bucket digging out the trench, or possibly that it had been driven over. Mr Keeley’s evidence in cross examination was that it did not appear to be in the same condition as the pipe in the CCTV footage. That is obviously correct.[211]It is also very clear to me that the reason it was recorded was not because it was crushed, but because whoever recorded the video wished to draw attention to the pipe being a perforated plastic corrugated pipe rather than a twin wall pipe as it should have been. The person holding the pipe is pointing at the perforations in turn, clearly to draw attention to the perforations, not to illustrate that it has been crushed.[212]In any event, there is no evidence that the requirements of maintaining the pitch would extend to carrying out CCTV surveys of the drains. The maintenance schedule for the pitch requires drains to be checked periodically but, in the absence of any evidence that the drains themselves were not coping with the water flowing into them, I do not consider that would extend to carrying out regular CCTV surveys of the drains.[213]Hunts also relies on photographic and video evidence of the inspection chamber into which the collector drains under the pitch discharge and from which the water is removed off the site by an outflow pipe. Dr Hawkins’ report states that, on 20 October 2023, during Storm Babet, PST reported that there was water in the carpet at the lower end of the pitch and took a video of the drainage outlet chamber (ie manhole) at that time. Dr Hawkins included a still photograph taken from the video in his report. He states “it is evident that both of the collector drains from the pitch and the outfall drain are submerged. This suggests that the outfall is not allowing the removal of water from the pitch drainage system. Rainfall is therefore backing up in the pitch sub-base since it has nowhere else to go….” “The video, from which this screenshot is taken, shows water flowing out of the outfall pipe into the pitch chamber. This should never happen and it should, of course, be flowing the other way… I consider that detailed analysis of water flow would be best provided by a drainage expert, although it is my opinion from the above as a physicist with knowledge of hydrodynamics that the pitch drainage and collection system is functioning correctly, since water is draining through the pitch construction and into the drainage pipes …. But water may at times be retained within the pitch because of the incorrectly functioning outfall is preventing water from being discharged from the pitch. An external source of water overloading the outfall, either from the pond or clubhouse is a possibility…... If water could not escape from the pitch drainage system through the outfall, it would have continued to back up in the pitch construction to higher levels with additional rainfall. This was observed in November 2023 and is confirmed by Mr Manship in his witness statement... where he reported that the exposed dynamic layer was holding water “even above the drainage lines”. At the drainage lines, there was an uninterrupted depth of gravel down to the perforated drainage pipes, which connected with the outfall. If water was being held in the drainage gravel, the only plausible explanation is that the outfall was either blocked or severely restricted.”[214]The video of the water in the inspection chamber on which Dr Hawkins relies for his analysis was available in the trial bundle. I do not agree that it shows what Dr Hawkins reports. It shows two pipes entering the rectangular inspection chamber from the pitch collector drains, the ends of which are very slightly submerged under the surface of the water in it. It shows the outfall pipe, which removes water from the chamber, the top of which is at a very slightly higher level than the top of the inflow pipes. The level of the water in the chamber is at about the same level as the top of the outfall pipe. There is turbulence on the surface of the water in the manhole. I do not agree that it shows that water is flowing in from the outfall pipe. It appears to me to show water is flowing in from the submerged inflow pipes towards the walls of the manhole and being disturbed by the walls of the manhole and also the surface of the water being disturbed as it moves over the top of the outfall pipe, which is at or around the level of the surface of the water.[215]I asked Dr Hawkins whether he still believed that the photograph showed water flowing in the wrong direction, because it did not appear to me to show that. He responded that it appeared to be, and that it was “difficult to see”. He then said that he was “not necessarily” maintaining that the water was coming in from the outfall pipe.[216]The video was then played in court, with the audio. Those taking the video can be heard to say:
“That was dry when we saw it last night” and ”the drains are running.”
They were clearly of the view that the drains were running to take water away from the pitch and did not suggest that water was flowing in from the outfall pipe. I therefore find Dr Hawkins’ unqualified statement in his report that the video “shows water flowing out of the outfall pipe into the pitch chamber” surprising and incorrect. Whilst I accept that the video does suggest that the outflow pipe, during Storm Babet, was at full capacity, because the water in the chamber is at around the top of the outflow pipe, it does not show that it is not flowing out of the outflow pipe.[217]Dr Hawkins refers in his report to Mr Manship’s evidence that the dynamic layer was holding water “even above the drainage lines”. In his report, Dr Hawkins stated that, “at the drainage lines, there was an uninterrupted depth of drainage gravel down to the perforated drainage pipes which connected with the outfall. If water was being held in the drainage gravel, the only plausible explanation is that the outfall was ether blocked or severely restricted.”[218]As I understand it, the inference I am asked to draw is that, because it is suggested that surface water appears to be lying above the possible location of the drainage trenches in the pitch which lie above the lateral drains, the cause of the water on the pitch is, or may be, the constriction in the outfall pipe downstream of the inspection chamber.[219]I have a number of concerns about drawing such an inference.[220]First, the evidence of Mr Manship to which Dr Hawkins referred is that the layer was holding water “even” above the drainage lines, not only above the drainage lines.[221]There is no explanation that I can understand from Dr Hawkins as to how a restriction downstream of the manhole could cause the water to back up in the drainage system to the surface of the pitch across the entire pitch. There is no evidence from a drainage expert. I do not have the benefit of a survey showing the levels of the pitch surface, the levels of drains under the foundation layer or the levels of the pipes where they discharge into the manhole.[222]However, the level at which the inflow pipes discharge into the manhole must be significantly lower than the level of the surface of the pitch, even at the pitch’s lowest point, being the North West corner. The lateral collector drains under the pitch are laid in trenches in the ground. They lie wholly beneath the foundation layer. Above the formation, there is a 130mm to 150mm layer of sub-base (30mm dynamic layer and 100mm to 120mm foundation layer). There is a shockpad above the dynamic layer. The Final Quotation did not specify the depth of the shockpad. Previous quotations specified a 24mm Ecocept layer, or a 20mm shockpad. One quotation specified a 10mm shockpad, though that was for a pitch with a 300mm foundation layer. I consider it unlikely that the shockpad as constructed was less than 20mm. From the photographs, it appears to be about 20mm thick. There is a carpet on top of the shockpad. At its lowest point, therefore, the surface of the pitch must be at least 150mm higher than the top of the outflow pipes in the manhole, even making no allowance for any fall in the pipes between the pitch and the manhole. At its highest, at the South end of the pitch, the surface of the pitch would be at least 1.15m higher than the top of the inflow pipes in the manhole.[223]Given the fact that the pipes in the manhole must be between 1.15m and 150mm lower than the surface of the pitch, and given that the drainage system is not a closed system (the inflow pipes flowing into the inspection chamber not being connected to the outflow pipe, but all terminating in the chamber), I simply do not understand how any constriction of the drain downstream of the inspection chamber would cause water to back up to the surface of the pitch, let alone to the surface of the pitch where it is 1.15m higher than the inflow pipe into the inspection chamber. It seems to me that it would first flow into the manhole until it reached at least the level of the water on the pitch. If the problem were caused by a downstream obstruction, the water level in the chamber would reach a level considerably above than the top of the outflow pipe before it would cause flooding of the pitch at a level that would be a minimum of 150mm above the top of the inflow pipe (at the lowest point on the pitch) and about 1.15m above that level (at the highest point on the pitch).[224]The evidence in the bundle included a video of water on the pitch taken in June 2023. That video does show water lying on the pitch, with particular concentration in uneven strips running laterally across the pitch. It was put to Mr Keeley that the water appears to be accumulating on the pitch in lines around where the drainage trenches are. He accepted the areas could correlate with the drainage trenches but also noted that water was also pooling along the length of the pitch and not only across the width of it. My observation, having viewed the video, is that the pattern of water on the pitch does appear to be more concentrated in wide patches that appear to run across the width of the pitch, but the patches of the water by no means appear exactly to coincide with the likely location drainage strips, as Mr Keeley observed in his oral evidence.[225]Further, I note from the video of the pooling of water on the pitch, which Hunts suggest is evidence of the water backing up in the drainage runs, that there is more water lying on the pitch to the Southern (higher) end of the pitch than the Northern (lower) end of the pitch. That makes it even more unlikely that the cause is the mechanism proposed by Hunts and Dr Hawkins. The surface of the Southern end of the pitch must be at least 1.15m higher than the level of the top of the inflow pipe in the inspection chamber. I am unable to make logical sense of the suggestion that that flooding could be caused by the blockage identified by Hunts as a possible cause. It appears to me instead to indicate that the water is sitting on the surface and is unable to reach drains to flow into the chamber.[226]The fact that, at around the time of storm Babet, there is water in the inspection chamber that is at around the level of the top of the outflow pipe does not alter my view. There is no evidence that the water in the chamber ever rose to the level of the surface of the pitch.[227]Further, the specified permeability rate for the entire pitch area was 500mm/hr. Mr Keeley carried out double ring infiltrometer tests, which showed the dynamic layer to have a permeability rate of between 2.7mm/hr and 23.1mm/hr. Whilst Dr Hawkins does not accept Mr Keeley’s test results, he was present during the tests and declined to comment on the methodology of the tests at the time. In his oral evidence, Dr Hawkins accepted that the dynamic layer was highly impermeable.[228]There is no evidence before me from which I can conclude that the introduction of 20mm wide pea gravel drainage trenches at 10m intervals across the pitch (which I calculate covered approximately 2% of the pitch) would be sufficient to compensate for the difference in permeability across the entire pitch between the specified 500mm/hr and the actual rate of about 23.1mm per hour at its highest.[229]I am not persuaded that the location of the pooling of the water on the pitch was caused by a crushed drain constriction downstream of the manhole. Even if the outlet drain was struggling to cope with the inflows from Storm Babet, there is ample evidence that the Southern end of the pitch was waterlogged on occasion and that could not be the result of the alleged constriction downstream of the inspection chamber[230]I find that the flooding or waterlogging of the pitch was principally caused by the impermeability of the dynamic layer, and was likely to be contributed to by the reduced attenuation capacity compared with the planned capacity in SSL’s plans and the fact that some of the foundation stone was not to the specification of MOT Type 3 (also known as Type 1X) and was not caused by a crushed drain. OTHER ALLEGED BREACHES OF CONTRACT Damage to the track road

OTHER ALLEGED BREACHES OF CONTRACT

[231]Melton claims that Hunts damaged its track road and failed to repair it after the work had been done. It relies on photographs showing potholes and an uneven surface. There is no evidence as to the state of the road before the work. Further, the road is little more than a track. It is not a made-up road.[232]I consider that it would be obvious that building a football pitch, which would include driving heavy machinery and delivery vehicles such as 38 tonne stone delivery lorries and concrete lorries would lead to some deterioration in the condition of the track. In any event, there is no evidence as to who caused the “damage” or when. Melton has not proved any breach of contract on Hunts’ part in relation to the condition of the track.

DID HUNTS DISCHARGE ITS DUTY TO WARN?

[233]The only warning Hunts issued was as to the reduced attenuation capacity resulting from the reduced depth of the foundation layer and the proposed omission of the restriction on the outflow from the site would mean that the pitch as built would not comply with the planning permission. When it did so, it suggested that, if necessary, compliance could be achieved by fitting a flow restrictor and providing an attenuation tank. Whilst Hunts warned Melton after the contract was formed that constructing the pitch in accordance with the contract meant it would not meet the requirements of the planning permission, it did not issue any other warning as to the suitability of the specification for which the parties had contracted, such as any risk that a thinner foundation layer may affect the stability of the pitch or that there might be any increased risk of flooding even without the flow restrictor.[234]I have found that the design of the pitch was inadequate in that the foundation layer was too thin and have noted that Hunts’ immediate response to issues of lack of planarity was that they were caused by the decision to reduce the thickness of the foundation layer. The reduction in the attenuation capacity of the foundation layer may have led to increased risk of flooding. The decision to rely on omitting the control on the outflow was made without Hunts having any data as to the downstream capacity of the drains. I find that Hunts failed in its duty to warn Melton that adopting a design with a reduced foundation layer would result in a risk that the pitch would not be sufficiently stable to retain the required degree of planarity and that it would flood.

WHETHER THE DEFENDANT ACTED REASONABLY IN REPLACING THE PITCH IN ITS ENTIRETY

[235]I have found the dynamic layer to be highly impermeable and the drainage solution of extending the lateral drains to the surface of the dynamic layer ineffective to drain the surface of the dynamic layer to avoid water accumulating on it. It is clear that the dynamic layer needed to be replaced in its entirely with a suitably permeable material.[236]I have found that the foundation layer was too shallow for the ground conditions, as the ground was not sufficiently stable to reduce the foundation layer depth from the recommended depth.[237]I have found that the foundation layer did not permit attenuation of the volume of water indicated in the SSL drainage plans supplied to Hunts before the contract was formed, both because the foundation layer was reduced from that indicated in the SSL plans and because at least some of the foundation stone did not meet MOT Type 1X specification.[238]I have also found that the shallow depth of the foundation layer exposed the pitch to the risk of movement caused by changes in the moisture levels in the clay soil beneath it, and the risk of frost heave, because the formation was only 150mm below the top of the dynamic layer.[239]I have found that the ground had a CBR below 5%. I have accepted Mr Keeley’s evidence that it required stabilisation. It would not be possible to stabilise the formation without removing the foundation layer.[240]Hunts’ case is that a more appropriate remedial course would have been to carry out localised repairs. However, for the reasons set out above, that would not have been an appropriate course. It would not have remedied the problems with the pitch or brought it to the standard for which Melton contracted.[241]In addition, before deciding on the remedial course, Melton took advice from two highly qualified pitch experts: Mr Keeley, its expert in the proceedings, and Prof Harrison, who is clearly an eminently qualified sports surfaces consultant, former head of British and European standards committees on sports surfaces and draftsman of FIFA’s Quality Concept standards for artificial football pitches. They both advised that complete replacement was the appropriate course.[242]Hunts have called into question their advice. Shortly before Melton contracted with PST to replace the pitch, both Mr Keeley and Prof Harrison wrote letters in strikingly similar terms advising that the pitch should be replaced. It is fairly clear that these letters had input from Melton’s solicitors. That does not, however, mean that their contents are to be called into question. Both Mr Keeley and Prof Harrison struck me as independent experts who would not sign a letter the contents of which they did not agree. I am satisfied that Melton acted reasonably in seeking appropriate expert advice and following that advice. In any event, Melton does not need to rely on the fact that they obtained suitable expert advice before remedying the pitch in circumstances in which I have found that it was reasonable to do so in any event.[243]Hunts also contends that it was unreasonable of Melton to refuse to allow Hunts to carry out remedial work at no cost to Melton. It relies on a letter from Berwick Law dated 18 July 2023. In that letter, Hunts suggests that a testing house test the pitch, and then its pitch expert would investigate any failings of the pitch identified. As I understand that proposal, the further investigation would be limited by the failings identified from that single pitch test, rather than taking into account the historical issues that had occurred, save that it proposed that, regardless of the testing, its expert would investigate the rippled area. It proposed “there would be two types of investigations completed, one to be done in respect of any failings of the pitch identified when tested, and another in respect of ripples to be completed in any event.” Hunts proposed that it and its expert would prepare a proposal for any remedial works for both the ripples and any other defect identified by the testing house, and that it would do any work identified at no cost to Melton. The letter stated that Hunts considered there was every likelihood that it would be able to resolve any problems with the pitch relatively quickly, enabling Melton to obtain a FIFA certificate so that minimal disruption would be caused to the forthcoming football season.[244]Melton’s solicitors responded to say that the proposals were vague and iterative, and that there was no basis for further testing of the pitch in the light of the independent test results already obtained. By this time, the adjudicator had decided in the adjudication that Hunts should pay Melton sufficient money to replace the pitch, and Hunts had not paid the award.[245]I find it was not unreasonable to reject this proposal. It appears that the only remedial work that Hunts accepted was necessary was to identify the cause of the ripples and remove them, and to do any other work that would enable the pitch to pass a FIFA test following a one-off further test. It does not appear to acknowledge the fundamental issues with the pitch, such as its propensity to flood, or the historical issues.[246]In any event, Hunts carried out further testing in September and October and attempted remedial works, which were unsuccessful.[247]When Melton indicated that it would replace the whole pitch, on 8 August 2023, Hunts offered to carry out the works to Melton’s design and under their professional supervision at cost, without the addition of overhead and profit, to reduce the costs. It argues that Melton was unreasonable to refuse this offer. There is no evidence as to what Hunts’ costs would have been, without overhead and profit, or what saving there might have been as a result. In addition, I am mindful that Mr Manship felt very strongly that he had been wronged by Hunts, who had supplied a shockpad that was not a Ecocept. I have found that Hunts was in breach of contract as a result. It is clear from the correspondence that Mr Manship felt he had been deliberately misled and had lost trust in Hunts. In addition, Hunts’ refusal to accept that there were significant problems with the pitch that required remedy (even at the stage when it filed its Reply and Defence to Counterclaim in these proceedings) and its previous failed attempts to remedy defects, mean that it was not unreasonable to refuse to give them an opportunity to carry out the remedial works.[248]Although it was not pleaded and not set out in any of the correspondence between the parties, it was suggested at trial that a remedy for the accumulation of water on the pitch was to add an attenuation tank, as had been suggested by Mr Drury might be required if it became necessary to fit the control on the outflow required by the planning permission. However, I have found that the principal cause of the flooding was the lack of permeability of the dynamic layer. An attenuation tank would do nothing to resolve that defect. Further, there is no evidence as to the possible design, location, or cost of such a tank or its likely effect on the drainage. In any event, since the foundation layer had to be replaced and the ground stabilised, the effect of adding an attenuation tank is academic.[249]I consider that it was reasonable for Melton to replace the entire pitch.

MELTON’S ENTITLEMENT TO RECOVER THE COSTS OF REMEDIAL WORK

[250]I have the benefit of a joint report and individual reports from the parties’ respective expert Quantity Surveyors, Mr Jones for Hunts and Mr Daunt for Melton, on the issue of the remedial costs. Both experts were clearly competent Quantity Surveyors who understood their duties to the court and approached their evidence with the appropriate degree of independence.[251]Thankfully, they agreed the quantum of many of the items claimed.[252]For the sake of consistency, all figures referred to are net of VAT. Item 1: Cost of remediation of the surrounding area, facility and track road – claimed at £2,250[253]I have found there was no breach of contract on Hunts’ part relating to this element of the claim. I will therefore make no award. Item 2: Cost of interim remedial works by Playdeck - claimed at £875[254]Melton claims repayment of sums paid to Playdeck to carry out remedial work to the carpet on an ad hoc basis. It has proved that it incurred this cost and that it was reasonable to do so. The experts are agreed that the evidence supports the claim for £875 and I will allow £875. Item 2a: cost of purchasing artificial turf claimed at £90,676.28[255]Having found that the pitch needed to be entirely replaced, Melton is entitled to the costs of the artificial turf. The experts are agreed as to the quantum of this item and that it is a reasonable cost. I allow £90,676.28. Item 2b: Cost of removing the original stone - claimed at £52,500[256]Melton claims it is liable to pay Duffin Builders Limited the unpaid balance of a price of £52,500 to remove the stone from the pitch. The experts are agreed that there is evidence of payment of £4,375 plus VAT, being £5,250 in total, to Duffin Builders Limited. There is no evidence of any further payment for removing the stone.[257]PST quoted £83,797.20 for removal of 150mm of stone and disposing of it off site. I infer that that price would have included the costs of disposing of the stone to landfill. It is clear from the quotation that consideration had been given to reusing the stone for the haul road that it appears PST was to install as part of their contract for the remedial work, but the quotation provided for importing new stone for the haul road rather than reusing the stone available.[258]An email of 6 November 2023 from Mr Manship to PST states that that element of the work will be omitted from the contract with PST unless and until he notified them to carry it out.[259]Mr Manship’s oral evidence was that the stone was removed in late 2023.[260]In the bundle are two documents on Duffin Builders Ltd’s notepaper. They are both unsigned and do not bear the name of any director or individual. The letters simply bear the name Duffin Builders Ltd typed at the bottom. One is undated and is referred to by Melton’s legal team as an invoice, though it is not expressed to be an invoice on its face. It reads:
“For removing stone from Melton Town Football Club, Melton Mowbray. Including all plant and machinery £63,000 inclusive of VAT @ 20%.”
It does not appear to be an invoice because it does not state it is an invoice and does not display the VAT separately from total amount, as is required for a VAT invoice. I find that it is not an invoice.[261]A very similar document appears in the bundle. It is in in identical terms, except that it is dated 14.04.24, and has the following wording at the end of it, in identical font to the letter: “We confirm that payments of £1,750 will be made to Duffin Builders as Melton Town football club - is in a financial position to do so (sic). As a local company, Duffin Builders fully understands and sympathises with the challenges currently facing the club. And will support the club in the position it finds itself in. To date three payments of £1,750.00 have been received. Duffin Builders Limited”.[262]There is no explanation as to why the same document appears in two different forms, one dated and one undated, and one with the annotation as to payment terms and one without. It seems to me odd that there should be specified amounts for the payments (£1,750) but no specified dates or periods for the payments.[263]Melton’s bank statements show three payments of £1,750 made made on 13 May 2024, 23 December 2024 and 19 March 2025.[264]Mr Manship was asked about the letter. He said could not say who sent it to him but it “would have come from Duffin Builders”. He said they are a successful local firm who felt sympathy for Melton’s position and the agreement was “verbal”, and the costs of removal by PST would have been higher. However, there is no evidence from Mr Manship or any other witness as to what the terms of the agreement were, or to explain the documents.[265]An email of 8 May 2025 from Mr Manship to Mr Patrick Duffin thanks Duffin Builders for “understanding and helping the club in removing the stone from the defective pitch. MTFC will send funds as and when available and keep chipping away. Ref letter 16.04.25”. Mr Duffin replied “That’s OK. Thank you.”[266]I infer that these documents were exchanged the purposes of the litigation, to evidence an oral agreement made some time before. However, there is no evidence in the witness statement of Mr Manship as to what the terms of the agreement were. It appears I am expected to conclude from these documents, that appear to have been produced for the purposes of the litigation, that they represent the terms of an agreement, without any factual evidence from the witnesses as to the agreement.[267]The experts both opine that the stone would have a value. Mr Manship’s evidence in cross examination was that he had not asked about the value of the stone, because it was defective. However, the experts are agreed that the recycled stone would have had a value of about £22,500. Mr Jones valued it at about £22,500. Mr Daunt at between £22,500 and £30,000. I find that it had a value of at least £22,500 and that a successful builder such as Duffin Builders Ltd would be likely to have a use for the stone in their business and would consider the stone an asset rather than waste material to be sent to landfill. I do not find it surprising that a successful building company would have a use for the stone and be willing to remove it.[268]The Amended Defence and Counterclaim states that MTFC “is entitled to and claims damages as follows: Particulars of Loss and Damage …. Cost of removing original stone £52,500 plus VAT (£63,000)”. That is signed by Mr Manship with a statement of truth. In addition, Melton has disclosed its projected financial accounts for the period from 1 May 2023 to 30 April 2024. At that time, only £1,750 inclusive of VAT had been paid to Duffin Builders Ltd. The accounts record an outstanding liability of £61,250.[269]Despite my concerns as to the origin of the documents referred to above, which I consider were likely to have been produced for the purpose of providing documentation that did not otherwise exist to prove this element of the claim, I find on the balance of probabilities that Melton agreed with Duffin Builders Ltd to pay a total of £63,000 inclusive of VAT, to be paid when Melton could afford to pay it. The cost was still considerably lower than the £83,797.20 which PST quoted for the excavation of the stone and removal of the stone from site. PST had also quoted £9,794.40 to remove the stone and place it on the haul road. It appears therefore that the equivalent costs that PST would have charged for removing the stone from site and disposing of it would have been £74,184.80. The cost of £52,500 is considerably lower than the cost PST would have charged, presumably because Duffin Builders Ltd could make use of the stone and would not need to take it to landfill.[270]I find that Melton is liable to Duffin Builders Ltd for unpaid balance, and that it is entitled to the total sum of £52,500. Item 2c: cost of disposing of the old carpet £10,940[271]In the bundle is an invoice dated 29 February 2024 from Carl Wyles, trading as CW Fencing and Landscaping, for £10,940 for removing the carpet from site. Melton’s bank statement shows a payment of £7,550 reference “Thomas Manship (carlwfgrassrem). There is no witness evidence from Mr Manship on this point. There is no evidence of any further payment by Melton or indeed Mr Manship for this item. Nor has my attention been drawn to any evidence of a deferred payment arrangement with Mr Wyles.[272]I find that Melton has failed to prove it incurred any cost exceeding the sum of £7,550 apparently paid to Mr Manship for Mr Wyles, and will allow £7,550. Item 2d: Costs of additional 24-hour security to guard the new carpet until it was laid – claimed at £2,00 and item 6: Costs of site security – claimed at £14,250[273]Melton claims £14,250 for the costs of Mr Roberton providing site security, being £750 per week for 19 weeks while the pitch was being rebuilt. Part of the justification for this is that Mr Manship states in which witness statement that Hunts was present near the site on occasion, which he considered was intimidatory, and was “why we put 24-hour security on site when the carpet was there but not yet fitted”. It is not clear to me, even if Melton considered Hunts was watching the remedial works (no doubt due to the ligation) why this necessitated paying Mr Roberton to be present on site as “security”. The contract between Melton and PST included, as part of the preliminaries, site security. I am not satisfied that paying Mr Roberton to provide site security was necessary or reasonable.[274]In any event, Mr Roberton was a full-time employee of John Manship Records Ltd, Mr Jonathan Manship’s business. His first witness statement gave the impression that he was employed by Melton. It also stated that his working hours at the club were from 9 until 4.30. However, he clarified that he is employed by John Manship Records Ltd and not by Melton. It is my understanding that, although he is employed by John Manship Records Ltd, he is based at the ground and is therefore on site during his working hours.[275]Finally, Mr Roberton’s evidence in his witness statement, under the heading “Rectification works”, was as follows:
“I took an active role during the installation of the new pitch. I would regularly liaise with Tom in my role as groundsman, but I was also asked to take up a security role for the two to three weeks that the pitch was being installed. This was because the new carpet for the pitch got delivered and PST were not ready for it. It had to stay out in the compound - I was required to regularly perform ground checks and once the carpet was moved to site, it was covered by the club's security cameras. I was paid for this role.”
[276]From that, it appears that Mr Robertson, when he prepared his first witness statement, did not consider he had been paid by Melton for carrying out a security role for the entire period of the rectification works, but only to secure the carpet before it was laid. In his supplemental statement, he stated as follows:
“Initially, I was asked to be on site throughout the day whilst PST were on site. I would get to the pitch at about 8am each morning and would be there until about 5 or 5.30 each evening. My role was to oversee what was going on and to make sure there was someone there should the workers leave the site unattended. We couldn’t just leave the site with the Heras fencing up. There needed to be someone there monitoring things. MTFC paid me £750 per week for the duration of the replacement works to undertake this role. I took time off from my ordinary role at JMRL in order to undertake the security role … my role is quite flexible and John Manship is very supportive of the club…. I was also asked to perform a 24 hour security role for the 2 week period when the new carpet for the pitch had been delivered… I was paid an additional £1000 per week for this role, totalling £2,000.”
[277]Mr Roberton’s supplemental statement is therefore inconsistent with his first witness statement. Mr Roberton was unable to recall whether, during this period, he had been paid by Melton or whether he continued to be paid by his usual employer. I consider that, had his employer switched to Melton for that period, he would be likely to remember it. He would presumably have been issued with P60’s and possibly even P45’s in relation to the switch of employer for the period.[278]No invoices or payslips record any payments from Melton to Mr Roberton for this work. There is, however, evidence that he was paid £2,000 for the 24-hour security work.[279]I find both that it was not reasonable to incur a cost of £750 per week for site security, and also that Melton has not satisfied the burden of proving it has actually paid these sums to Mr Roberton, or incurred any liability to do so. Mr Roberton was in any event generally based at the club as his normal place of work for John Manship Records. I will make no award for the claim for general site security services.[280]Melton also claims £2,000, being two payments of £1,000 paid to Mr Roberton, Melton’s voluntary groundsman, to provide 24 hour security to guard the new carpet between delivery and it being laid. I consider this is a reasonable cost. Melton mitigated its loss by buying the carpet direct from the manufacturer and could not risk the carpet not being available to PST when it was needed. The carpet was of high value and it was prudent to protect it while it was vulnerable to theft. The site security provided by PST as part of the contract would be unlikely to cover 24 hour security of the carpet that they were not supplying, and it would be unlikely to be covered by their contractors all risks insurance. The documents show that Melton paid these sums to Mr Roberton from its bank account. I am satisfied that this is a loss incurred by Melton that was reasonably incurred. I award £2,000. Item 3: cost of replacing the pitch (excluding the carpet and stone removal) – claimed at £486,538.05.[281]Melton claims that its total liability to PST, both paid and unpaid, is £486,538.05. This is based on the original contract sum in its contract with PST, less the costs of the removal of the carpet and the stone, which were omitted from the contract with PST, and variation works that were agreed to address additional drainage works found necessary during the work, reflected in a Deed of Variation. The total is reflected in PST’s proposed final account to Melton dated 30 October 2024, in which it claims £486,538.05, less a retention and interim payments.[282]Mr Jones values this element in accordance with a pay less notice sent by Melton to PST, at £456,569.83. However, his valuation was based on an exchange of emails on 6 November 2023 in which the parties agreed to omit certain elements of the work from the original contract price (the supply of the carpet and removal of the old carpet) but did not reflect the Deed of Variation between PST and Melton of 21 March 2024, increasing the original contract price from £667,259.30 to £688,501.39. It appears that Melton’s pay less notice therefore incorrectly took as its starting point a contract price that was lower than the price that PST and Melton had later agreed.[283]A further difference between Mr Jones and Mr Daunt is that Mr Daunt accepts PST’s valuation of the effect of removing from the PST contract the cost of removing and disposing of the stone, whereas Mr Jones bases his valuation on Melton’s pay less notice referred to above which values the omission at a higher amount. Melton therefore argues in these proceedings that it is liable to PST for a greater sum that it has accepted in its pay less notice to PST.[284]The PST contract was based on PST’s quotation Rev D. That included £83,797.20 for “removal of 150mm of stone dispose of it OFF SITE”. The previous quotation, Rev C, had quoted £9,794.40 for “Removal of 150mm of stone and place it on the haul road. We have not made any allowance for removing stone off site”. Melton’s submission is that, although disposal of the stone was omitted from the PST Contract, PST still excavated the stone, so the appropriate valuation for the work they actually did should be valued on the basis of the Rev C quotation, which included £9,794.40 for removal of 150mm of stone and placing on the haul road.[285]There is no documentary or witness evidence as to the precise scope of the work of Duffin Builders Ltd and PST. Despite Melton’s closing submissions that PST excavated the stone and left it on the haul road for Duffin to dispose of, there is no evidence that has been drawn to my attention as to how work was divided between PST and Duffin Builders Ltd. It is therefore not clear to me who removed the stone from the pitch. The document on which Melton relies in support of its claim for its liability to Duffin Builders Ltd is “For removing stone from Melton Town Football Club, Melton Mowbray. Including all plant and machinery £63,000 inclusive of VAT @ 20%”. There appears to be no material difference in the description of the work between the element of work itemised in PST’s quotation and the document from Duffin Stone, other than Duffin Builders Ltd refer expressly to the need for plant and machinery. Further, Melton’s pay less notice to PST did not include the sum it now argues it is liable to pay PST.[286]On 6 November 2024, Mr Manship emailed Mr Almeida of PST to say as follows:
“we have agreed that you will not carry out the works relating to the disposal of the carpet off site or the removal of 150mm off site (combined value of £100,547.85) unless and until I notify you in writing… In the event that I do not so notify you, the Contract Sum shall be reduced by that amount…”
[287]That sum is the sum of £83,797.20 (for “removal of stone dispose off site”) and £16,750.65 for disposal of carpet off site.[288]Mr Almeida responded:
“we can confirm that the additional items in the contract (Removal of carpet off site and removal of 150mm of stone off site) will be charged if necessary and agreed”
. He did not contradict Mr Manship’s statement that the reduction to the contract price would be £100,547.85.[289]Melton’s position in its pay less notice to PST is inconsistent with its case in these proceedings as to its liability to PST, and I have not seen any evidence that Melton has accepted PST’s position. On the balance of probabilities, I find that, to allow the full amount claimed for Duffin Builders Ltd to remove the stone and to allow the further figure of £9,812.95 for PST to remove the stone would amount to a double recovery.[290]Melton’s pay less notice to PST also made a deduction of £14,984.11, with a note explaining that deduction as follows:
“Reasoning for haul road stone being imported has never been justified that the material was not suitable, but that it was logistically inconvenient. Therefore, deduct from final account until evidence and agreement made.”
There is no evidence, whether in Melton’s witness statements or any documents to which I have been referred, as to the resolution of the difference between PST and Melton over the final account, or the respective merits of their positions. There is no evidence that the stone removed from the pitch was not suitable for use for a haul road, which it appears was to be constructed to facilitate the construction of the pitch and left in place, covered with topsoil, after use. It is unlikely that the stone used for the pitch would be unsuitable for such a use. There is no evidence that this issue was, or will be, resolved in PST’s favour, or that Melton will be liable to make payment of that element of PST’s claim for payment.[291]I find on the balance of probabilities that it is likely that Melton will not pay the sum of £14,984.11 that it disputed by its pay less notice and has not in fact paid to PST, but that it will be required to pay the balance of the contract price set out in the Deed of Variation net of this sum and net of the deductions for items excluded from the contract (removal of stone and removal of the old carpet). I find that the cost of replacing the pitch was the original contract price of £556,049.41 plus the price of the variation works which were agreed at £21,242.09 less the works cost of removing the stone that was omitted of £83,797.20, less the cost of disposing of the old carpet that was omitted of £16,750.65 and less the cost of importing stone for the haul road if the stone from the pitch was unsuitable of £8,111.40, being £468,632.25. Item 5: Project management costs – Mr Manship’s time – claimed at £15,000[292]The experts are satisfied that there is evidence of payment of the total sum of £15,000 for Mr Manship’s services, said to relate to his role as project manager for the PST contract. Mr Manship’s witness statement did not explain his role, what he was doing, or for what periods. However, this was a contract with one single contractor, for a simple, if large, construction. It is not clear what management work he needed to do. In his oral evidence, Mr Manship said that he worked every day attending the site and overseeing the works “watching these guys like a hawk”. However, it is not clear what he was watching them for. It is hard to understand how managing this project would have involved any significant amount of time. I note that Mr Manship’s role is Director and Football Manager at Melton, and therefore I would expect him to spend a certain amount of time at the ground in any event.[293]Mr Jones’s opinion is that this should not be allowed, as Melton had engaged a Quantity Surveyor, James Badham of Insita, to carry out the role of Employer Agent/Project Manager, which costs are claimed separately by Melton. He notes that the description of services undertaken on some of the invoices they submitted are “Pitch Construction Consultancy” and “Quantity Surveying Consultancy”. That would suggest that Insita’s duties were wider than purely acting as quantity surveyors.[294]I accept the opinion of Mr Jones on this issue. To allow the costs of Insita’s invoices and also to allow sums paid to Mr Manship for supervising or managing the works would amount to a double recovery.[295]I make no award in respect of this element of the claim. Item 7a - Costs of quantity surveyor for the remedial works – claimed at £5,524 or £9,085.80[296]Although in its schedule with its written closing submissions, Melton indicates a claim of £9,085.80 for sums paid to Insita for quantity surveying, the original claim in the Amended Defence and Counterclaim is for £4,750 plus VAT and the summary of the claims attached to Melton’s closing indicates a figure claimed of £5,524. It is my understanding that the lower sum is claimed. It is not clear how that sum was calculated. However, some of the costs now claimed post-date the Amended Defence and Counterclaim and considerably post-date the completion of the work. It is not possible to ascertain from the invoices themselves what work was covered by them.[297]The quantity surveying experts agree a cost of £3,597.50 was incurred by Melton. Although Mr Daunt’s current assessment at the time of the joint report was £3,597.50, in his final report, he opined that £5,524 of the sums paid to Insita are likely to relate to the remedial works necessitated by Melton’s claim against Hunts, with the balance of the sums paid likely to relate to Melton’s dispute with PST arising out of the way they did the work.[298]As mentioned above, Mr Badham of Insita provided services for which Melton was invoiced. I have disallowed the claim for Mr Manship acting as project manager of the PST contract, on the basis that it appears that this role was carried out by Mr Badham. I take that into account when considering the reasonableness of Insita’s costs.[299]Hunts argues that any costs incurred after February 2024 are likely to relate to Melton’s dispute with PST over its liability to PST. However, I do not consider that to be correct. Practical completion did not occur until April 2024 and it is inevitable that some work will be carried out after that time in conjunction with the contract, even if there is no dispute.[300]I accept Mr Daunt’s assessment and will allow £5,524 for Quantity Surveying costs paid to Insita. Item 23 - Labosport tests and reports by Mr Keeley – claimed at £11,937[301]In addition to being Melton’s expert witness in these proceedings, Mr Keeley gave advice as to the appropriate remedial work. The costs of Mr Keeley’s work as expert in these proceedings may be recoverable in costs, but not as damages. Any such costs should be excluded.[302]In addition, any costs for work in giving expert evidence in the adjudication proceedings should be excluded. Adjudication is a no-costs regime, and it is not open to Melton to recover as damages any costs of Mr Keeley in acting as expert in the adjudication.[303]Hunts argues that there should be no recovery for this element of the claim, on the basis that there is insufficient information available to identify into which category they fall as between expert costs in this claim, expert costs in the adjudication, or costs incurred in advising Melton on the appropriate remedial course.[304]Mr Daunt’s analysis of the invoices that make up this claim is set out in his report. He stripped out of the invoices all sums that were stated to relate to preparing responses for the adjudication, meeting the adjudicator and legal work. I have considered the invoices on which this claim is based and I agree that Mr Daunt’s analysis fairly removes the elements of the claimed invoices that relate to work for adjudication or legal work in these proceedings. Insofar as the invoices include testing, it seems to me that the testing was required in order to be able to assess the appropriate remedial course, even if it was also relied on in relation to these proceedings. I assess this loss in the sum of £11,937 Item 24: Technical report of Prof Harrison – claimed at £5,600[305]Prof Harrison’s invoices describe the work he carried out. They all state that his work was expert witness work. His firm’s invoices are addressed to Melton’s solicitors. Melton submits however that his work is recoverable on the basis that his report was prepared, or partly prepared, for the purposes of identifying the appropriate remedial scheme. Melton argues that Hunts had criticised the competence Mr Keeley and the quality of his analysis in correspondence in August 2022 and that, accordingly, on 3 March, Melton informed Hunts that it had instructed Prof Harrison to clarify the nature of the defects and the appropriate remedial scheme.[306]I consider this element of the claim to be irrecoverable, for two reasons. Melton had engaged a clearly competent and eminently qualified pitch expert in Mr Keeley. The fact that Hunts criticised his findings is not in itself justification for duplicating his work. Secondly, it is clear from Prof Harrison’s invoices that he understood his role to be that of an expert witness. His report was relied on in the adjudication.[307]I do not consider that the fact that Prof Harrison also wrote a letter recommending pitch replacement renders this work, the purpose of which appears to have been for his role as expert witness in the adjudication, recoverable.[308]Without diminishing in any way the value of Prof Harrison’s work, as he is clearly eminently qualified to opine on the issues of the quality of the pitch, I consider that the costs of his work are irrecoverable in damages.[309]I make no award for this element of the claim. Item 25: Costs of camera crew to record Hunts’ investigations and activities on site – claimed at £1,335.[310]The quantity surveying experts are agreed that Melton incurred this cost. Melton claims it was necessary to record Hunts’ activities, when it attempted to improve the state of the pitch and to investigate whether a less extensive remedial scheme would be appropriate. It argues the recording was necessary in order to assess whether and to what extent Hunts’ works had been effective.[311]Hunts disputes these costs are recoverable as damages. It argues that the video evidence was not disclosed or relied on in evidence and that Melton had people present on site supervising the work and recording events on their phones. Whilst there is no evidence as to exactly who was present or what they recorded, I am mindful that, in these days of video recordings being made easily on mobile phones, it is unusual for reliance on a camera crew to record events. Melton also claims the costs of both Mr Keeley and Prof Harrison’s attendance during these investigations. I have allowed Mr Keeley’s costs insofar as they are not the costs of acting as expert witness. I do not consider it reasonable to have paid a camera crew to record Hunts’ activities on site in addition to be reasonable. I will make no award for this item. Item 26: Costs of Mr Keeley attending during Hunts’ site investigations – claimed at £11,203 and Item 27: costs of Prof Harrison’s attendance during Hunts’ site investigations – claimed at £5,400[312]Melton invited Mr Keeley and Prof Harrison to be present on site to witness Hunts’ activities. Mr Keeley’s invoice is for “consultant attendance at Melton Town FC between 25 September 2023 and 29 October 2023”. It refers to a breakdown in an attached spreadsheet, which was not disclosed. Melton argues this is recoverable as damages because it was necessary to understand Hunts’ attempted remedial works and assess whether and to what extent they had been effective.[313]Hunts’ position was that replacement of the pitch was unnecessary and it hoped to be able to demonstrate that was the case either by carrying out remedial works or by its investigations.[314]I consider that it was reasonable for Melton to ask Mr Keeley to attend site to observe and, if appropriate, have input into Hunts’ activities. I consider that this represents a reasonable cost incurred in relation to finalising his recommendations for the remedial scheme. Had he not been present, and had Hunts managed to improve the planarity of the pitch, he would not have been able to assess the likely durability of any remedy without having been present. I consider the costs of Mr Keeley attending site to be a reasonable coast, recoverable in damages. I will allow the sum claimed, being £11,203.[315]Prof Harrison was also present. I do not consider that it was reasonable for both Mr Keelry and Professor Harrison to have attended to observe Hunts’ activities on site. Either one of them was eminently competent and able to assess the effect of Hunts’ actions. I will make no award for the costs of Professor Harrison’s attendance, which I consider duplicated Mr Keeley’s work. Item 28: Consultancy fees paid to Mr Etheridge – claimed at £6,000[316]This claim is identified in the Amended Counterclaim simply as “consultancy fees paid to Mr Adam Etheridge £6,000”. The pleading does not identify when it was paid, for what work or when the work was done.[317]Mr Etheridge gave extensive evidence as to Melton’s claimed financial losses in his witness statement. In relation to this element of the claim, his evidence was that he joined Melton as an administrator on 29 November 2021, though he does not state whether he joined them as an employee or self-employed contractor. His evidence is that he left his role on 23 June 2023, but subsequently became an ongoing consultant for the club, so he “remained involved and had knowledge of Melton’s comings and goings after June 2023”.[318]He described his consultancy role as needing to answer questions, being kept informed at to Melton’s current position and plans and, for example, helping Mr Manship if he needed help running a sports camp. His evidence is that required him to assist with the fallout issues with the pitch, and he was involved throughout the 2023/24 season in discussions with Dynamo (another local club) in relation to the pitch share arrangement with them and helped Melton with alternative training venue bookings and with other jobs due to issues with the pitch. In his oral evidence he said, in relation to his work that is the subject of this element of the claim, that “the work that I’d be doing in that would be related to just managing those external pitch bookings” and he referred to meetings with Loughborough Dynamos regarding the pitch share with them.[319]Despite his evidence in relation to his consultancy appearing under a heading “ADDCC Reference 28 - Consultancy fee paid to Adam Ethridge (£6,000)”, Mr Etheridge did not give evidence in his witness statement as to the amount he has been paid, the work he did to the value of £6,000 or any other sum that forms this claim. I find that surprising, particularly given he was acting in an administrative role and was a principal witness giving factual evidence as to Melton’s losses.[320]In his oral evidence, he admitted that he had only been paid about £2,300, and that he was “waiting for the rest that needs to be billed still”. From that, it appears that, contrary to the impression given in his witness statement, he has not been paid £6,000 and has not even rendered invoices for sums that have not been paid to him.[321]The documents in the bundle on which Melton relies in support of this element of the claim are invoices rendered by CGS Admin Services with payee details to an account in the name of Mr Etheridge in April, May, June, July and November of 2023 and in May, June and August of 2024, all for “Football Administration (incl. Social Media, Website & Finances”. That description makes clear they include general administration work for Melton, not limited to the type of work identified in his oral evidence as related to problems with the pitch. They do not mention dealing with pitch bookings or attending meetings. The invoices charge for specified hours at £15 per hour, varying between 8 hours in April 2023 and 60 hours in July 2023. They add up to £2,700.[322]In his oral evidence, he was asked whether he had records of the 400 hours at £15 per hour for which Melton is claiming in these proceedings. He said he did not and that “once it got to 60 hours, I would then generally bill and move on to reuse that same spreadsheet that I would track those hours with, so I haven’t kept that unfortunately.” He said he did not provide Melton with that spreadsheet or a timesheet, but he would “regularly go way over the 60 hours per month that I would work and then only bill them for 60 hours.” He did not explain how, without such records, he would be in a position to know that the amount for which Melton was liable to pay him was £6,000.[323]There is insufficient evidence to satisfy me that Melton has suffered any loss as a result of paying Mr Etheridge to deal with issues resulting from the issues with the pitch. This element of the claim appears to me to be an opportunistic attempt to claim general administrative costs for Mr Etheridge’s work, and to claim sums as having been paid that have not been paid, invoiced, or even properly identified. I will make no award for this element of the claim. Item 29: Legal fees associated with remedial works – claimed at £16,310[324]Melton claims the legal costs associated with the construction of the replacement pitch. This was originally claimed in the Amended Counterclaim at £8,000 net of VAT, but was claimed in written closing submissions at £16,310, being all the legal costs incurred by Melton in relation to its relationship with PST, including drafting the original contract with PST, drafting a Deed of Variation, advising on matters such as the possible termination of the contract with PST, liaising with experts to assist with a delay claim against PST at final account stage, damages for PST’s delay, and advising on issues on site with PST.[325]Much of the costs claimed appear to relate to what appears to be Melton’s dispute with PST which, in the absence of more information or explanation, I do not consider are caused by Hunts’ breach of contract but were caused either by PST’s breach of contract or Melton’s actions in claiming that PST were in breach of contract (I do not know which). I consider the costs properly recoverable from Hunts are limited to the costs of drafting and negotiating the contract with PST. Whilst Melton argues that, at the least, that should include the costs of negotiating a variation of the contract with PST, it appears from the invoices from Melton’s solicitors that the variation of the contract followed advice as to PST’s claims for additional payments, which was included in the same invoice as advice on PST’s breaches of contract, drafting a notice of default and drafting emails to PST. In the absence of any more detailed evidence as to the nature of the work, the drafting of a deed of variation appears to be linked with Melton’s dispute with PST and I am unable to quantify any element of the invoice that may be unrelated to the dispute. There is no explanation as to why that work is a foreseeable loss caused by Hunts’ breach of contract. I will award the costs of negotiating and drafting the contract with PST, being £7,610.

MELTON’S ENTITLEMENT TO RECOVER OTHER LOSSES

[326]In relation to other financial losses, I have the benefit of expert forensic accounting reports from Mr Stephen Lewis of Forvis Mazars for Hunts and Ms Sally Longworth of Longworth Forensic Accounting Ltd for Melton. Item 8: Cost of hiring an alternative pitch - claimed at £7,200[327]The experts are agreed that there is evidence that Melton incurred these costs in hiring an alternative pitch while its own was not available. It is clear that they would not have needed to do so but for Hunts’ breach of contract. I will award £7,200. Item 9: Cost of hiring alternative training venues - claimed at £15,900[328]Melton claims the cost of hiring alternative training venues for seven teams between August 2023 and the projected completion of the remedial works in February 2024. I am confused by Melton’s written closing, which states that this item was pleaded and claimed at £8,313, because it appears to have been originally claimed at £15,900, though Mr Etheridge’s witness statement explained that was an estimated cost. However, Mr Lewis analysed the invoices in Appendix 3 of his report. They total £8,309.[329]I award £8,309, being the actual costs, according to the analysis of the invoices, incurred for alternative training venues. Item 10 : Loss of profit from bar and foods sales at the clubhouse claimed at £27,360 and item 21: loss of profit from events which would have been held at the clubhouse claimed at £72,000[330]Melton claims lost profit from the sale of food and drink from its clubhouse. The construction of a new clubhouse was completed in November 2022. It sells food and drinks on match days and non-match days and has a large and attractive space, known as the Pitchside Lounge, which can host events and external bookings.[331]Melton claims that the clubhouse was closed for external bookings between August 2023 and May 2024. However, it is clear from the disclosed documents, including a pay less notice issued to PST, that the remedial works were scheduled to be completed at the end February 2024 and Melton is claiming from PST its losses caused by what Melton alleges was PST’s delay after that time. I consider that the period for which Melton is entitled to damages is limited to the seven month period between August and February, as any further loss was not caused by Hunts’ breach of contract. That is a period of 30 weeks.[332]Melton claimed its lost profit from the sale of food and drink from the bar separately from lost profit on events. However, they were considered together by the experts because the disclosed documentation was not sufficiently detailed to support their separate analysis. Ms Longworth values the claims at £51,583; Mr Lewis values it at £27,722. Melton limits its claim in its closing submissions to £51,583.[333]In my view, Melton’s accounting and financial arrangements are unusual. Melton is a private limited company. It is not a charity or a not-for-profit organisation. Its only statutory officers are its two directors, who are also its owners. It has no employees. However, in support of its claim, it relies heavily on others, who are not employees or officers of the company.[334]Until June 2023, Mr Etheridge was, as he puts it, responsible for “overseeing what was happening with [Melton’s] finances”, running the turnstile for the home games, keeping track of the ticket money and dealing with other administrative matters. He appears to have done that work as a self-employed consultant, invoicing Melton for his work. As far as I am aware, he has not been replaced. His evidence is that he continued to do some work for Melton after he left, on a consultancy basis.[335]The documentary evidence on which Melton relies give the impression that Melton’s finances are largely the responsibility of Mr Sam Ellis, rather than its directors. Mr Ellis’s role with regard to Melton is unclear to me. He is described as “Chairman”, “President” and also as “Treasurer” of Melton Town Football Club but it is not clear of what he is Chairman or Treasurer. There is no evidence that Melton Town Football Club exists in any form separately from the company, Melton. Melton was incorporated in 2020 and I infer that Melton Town Football Club must have existed in some form before then. I do not know what its legal form was. I am aware that community football clubs can be structured as unincorporated associations owned by their members, companies limited by guarantee, and community interest companies, cooperatives or community benefit societies and charitable organisations. However, there is no evidence that any entity or group of individuals, such as an unincorporated association or a club, still exists separately from Melton after the time when Melton was incorporated. If there is such a remaining entity, from Melton’s pleaded case and from the evidence on which it relies, it is not an entity that has any financial dealings of its own. It appears from Melton’s evidence and from correspondence from its accountants, that all income to the club belongs to Melton.[336]It is therefore not clear why Melton has a Treasurer in addition to its directors, or of what, if any, entity, he is Treasurer.[337]Mr Ellis is a volunteer. He is not an officer or employee of Melton. Yet, from the documents on which Melton relies, it appears that Mr Manship is dependent on Mr Ellis to provide him with financial information. I find that surprising.[338]Mr Etheridge’s evidence was that he (Mr Etheridge) was the only person paid by Melton, and all other staff are unpaid volunteers. Mr Roberton tends the ground without payment. Volunteers staff the clubhouse and the gate and assist generally without any payment. In addition, Mr Etheridge’s evidence is that local businesses are willing to provide food and drink to Melton at reduced prices, which are then sold by Melton, adding to its profits.[339]The financial arrangements are further complicated by the fact that not all income is paid into Melton’s own bank account. There is a separate bank account, in the name of “Jonathan Manship trading as Pitchside Melton Town Football Club”. It is my understanding that that account is used to bank income received by card and to pay outgoings relating to the food and drink sold in the clubhouse. Melton’s accountants, Foxwise Accountancy, have confirmed that the income shown in that account is treated for all accounting purposes as being Melton’s. There is no explanation as to why payments are not made to Melton’s bank account but to Mr Jonathan Manship’s account.[340]There are no formal ledgers recording income and outgoings of the type that would usually be expected in a company with a turnover exceeding £400,000 per year. Melton appears to rely on bank statements as a record of transactions that are made by card and paid from the bank account. It does not keep any formal cash ledgers. Mr Manship was asked about cash takings in his oral evidence. He said:
“How we record income is weekly and that will be on bank statements of income. Then we also record cash weekly, which will be written in - if you call it a ledger, we call it a diary because of the establishment we are.”
[341]The diary to which Mr Manship referred was disclosed. I did not see the original diary but there is a colour photograph of it in the trial bundle. I note that all the entries appear to have been written by the same person, with the same pen, for the entire year. The book appears very neat the pages are pristine. The pages are headed “Cash Takings MTFC 2024” and “Cash Takings MTFC 2025”. I would have expected volunteers to cash up daily and record the takings daily, rather than only weekly, and for there to be some daily records from which the weekly records would be produced. I also find it surprising that the same individual made every weekly entry, apparently using the same pen. The cash diary has the appearance of a record created on one occasion, rather than a contemporaneous record into which volunteers entered cash takings each week over a period of a year. There is no evidence as to whose handwriting is in the diary or from where they obtained the figures in the diary.[342]A spreadsheet entitled “Bar Takings at the Pitchside Lounge” records weekly cash and card takings. That document was disclosed in native format. It appears to have been created by Mr Etheridge on 24 April 2025 and last modified by him the following day. From that, it also does not appear to be a contemporaneous record of takings. Ms Longworth in her report notes that the figures in these two documents reconcile perfectly. I consider that is not surprising. It appears that the figures in Mr Etheridge’s spreadsheet is likely to be simply copied from the diary. As far as I am aware, there was no witness evidence from Mr Etheridge or anyone else explaining why or when this document was created. That is a surprising omission, given Mr Etheridge is a key witness of fact as to Melton’s loss.[343]For the year ending 30 April 2025, the spreadsheet shows income from the Pitchside Lounge of £196,789.75, of which £95,225 was taken in cash.[344]Both experts have taken the spreadsheet at face value and assumed that Melton has received the cash identified in it.[345]Melton’s position with regard to its proof of its lost profit from bar takings and food during the remedial period is that it is a community club, run by volunteers, and that explains its record keeping and the lack of any formal ledgers. In his oral evidence, Mr Manship repeatedly reminded me of the good that Melton does for the community. Whilst the community benefits of Melton’s activities are not disputed by Hunts, and I have no doubt that young people, footballers and fans benefit enormously from the facilities Melton offers, Melton is a privately owned company with a substantial turnover and gross profit. According to the profit and loss account in the trial bundle, it has an annual gross profit of nearly £400,000. Its shareholders ultimately either profit from its success or may need to contribute to it if it is not successful if it is to remain viable. Its directors are responsible for its accounts and its obligations to HMRC. Unlike some community football clubs, it is not a charity or not-for-profit organisation. I therefore agree with Hunts’ submission that I should not make allowances for any inadequacy in Melton’s record keeping because it is a company that also benefits the community which relies on volunteers rather than paid employees.[346]Mr Lewis analysed the disclosed documents for the periods before and after the period for which the loss is claimed. He analysed the income banked and the outgoings paid. He calculated an implied gross profit margin from that information. Taking the period most beneficial to Melton, he suggested the gross profit was about 47%.[347]He noted that, although Melton claims that its takings in those periods included significant cash receipts, there is no evidence of any unspent cash receipts being banked. He inferred that the cash receipts must have been spent on outgoings. He attributed the same gross profit margin to the cash takings that were not banked as for card takings that were banked. On that basis, he calculated the gross profit at £54,248 for a seven month period. However, from that, he deducted £20,559, which he considered had been claimed separately as lost gate receipts. He also took account of the fact that a further £6,067 inclusive of VAT had been claimed elsewhere as lost venue hire. He calculated the lost profit on that basis to be £27,722.[348]Ms Longworth calculated the loss by calculating an average gross profit margin on sales of food and drink. She did this from a summary of costs and sales prices in handwritten notes in a notebook. This appears in the trial bundle as “MTFC Clubhouse Food and Drink P&L” dated 07.05.25 in the index. There is no information as to who produced it or for what purpose. Ms Longworth accepted in her oral evidence that she had seen no invoices to support the costs identified in the notebook. Based on those costs, she calculated an average, unweighted, gross profit margin on food and drink of 63%. She observed that the margins varied, and she then assumed an average gross profit margin of 70%. In her report, she did not explain why she had assumed a profit margin higher than the margin she had calculated from the data in the notebook. In oral evidence, she said it was based on her expectation of typical profit margins for pubs for which she had done forensic accounting work. It appears the profit margin she adopted therefore is her own opinion, not a profit margin based on evidence of actual sales costs for Melton. To provide an accurate profit margin, of course, she would have had to had access to evidence of actual purchases and sales, which I understand were not made available to her or disclosed.[349]In cross examination, it was put to Ms Longworth that, if there had been sales of food and drink of over £200,000 as the excel spreadsheet apparently produced by Mr Etheridge suggests, even at a profit margin of 70%, it would be expected that Melton’s accounts for the year would show costs of sales of about £60,000, whereas the Profit and Loss account prepared by Foxwise Accountants for the period show only £29,006 as the costs of sales. Ms Longworth suggested that she had understood from what had been said earlier that cash had not been recorded in the accounts. She said “if you have not recorded cash at all your turnover will be wrong as well to make the double-entry” and “if the cash expenses haven’t been recorded in the accounts, I’m not sure how the accounts would balance unless the cash income hadn’t been recorded either”. There are no detailed ledgers disclosed. It appears that Melton did not use a double entry bookkeeping system but simply relied on its bank account and a handwritten record of total weekly cash takings. As a result, I am not convinced that it is safe to assume that, if there are apparently missing expenses from the records, there must be corresponding missing income.[350]I find it surprising that the VAT returns of Melton have not been disclosed. They might have shed light on the confusion, particularly since it appears that Melton charges VAT on food and drink and hire of the Pitchside Lounge but not on sporting events.[351]In short, there is an irreconcilable difference between the profit and loss account produced by Melton’s accountants (which show costs of sales of about £29,006) and what they would show if the gross profit margins calculated by Ms Longworth from the anonymous notes in the notebook were correct (which would be about £60,000).[352]Melton’s position is that none of the cash taken from sales was spent on purchases of food and drink for sale. Its position is that the bulk of the £95,225 taken in cash was paid to players and staff for travel expenses. Mr Manship explained in his oral evidence that all players are paid £75 in cash per week during the season for expenses, regardless of where they live. He stated that Melton does not issue any pay slips or issue any documents for tax purposes such as P11Ds for these expenses. Melton claims that it spent £75,000 on expenses, being £75 per week paid to 25 players for 40 weeks in the season. Melton had disclosed 25 letters, all dated 27 June 2024, on notepaper headed Melton Town Football Club (but not identifying it as a limited company or bearing its registration number) acknowledging that the signatories would be paid £75 in cash for every week during the 40 week season.[353]Melton relies on a letter dated 25 April 2025 from Mr Ellis to Mr Manship. I find that letter odd. As is the case for the letters signed by players, the letter is on notepaper headed “Melton Town Football Club” but does not refer to Melton being a limited company or bear its registered number or VAT reference. It is addressed to “Tom Manship Melton Town (Manager)”. It reads:
“Hi Tom The following is a breakdown of the cash available to the club: 1st May 2024 – 25th April 2025 £95,225 Cash received £75,000 Players & Staff Expenses (25 Staff & Players at £75 p/wk over 40 weeks) £150 per week in Loan Repayments totalling £7,800 £7,800 in Loan Repayments in cash (£150 p/wk) £3,750 for Match Officials This leaves £875 cash at the club for emergencies and float.”
The following is a breakdown of the cash available to the club: £95,225 Cash received £75,000 Players & Staff Expenses (25 Staff & Players at £75 p/wk over 40 weeks) £150 per week in Loan Repayments totalling £7,800 £7,800 in Loan Repayments in cash (£150 p/wk) £3,750 for Match Officials This leaves £875 cash at the club for emergencies and float.”

£3,750 for Match Officials

[354]There is no explanation as to why Mr Ellis wrote to Mr Manship to let him know that there was £875 cash was available on 25 April 2025. Nor is there any explanation as to where he obtained the information in that letter, such as the loan repayments that have been made, or the payments to players and staff. No documents or ledgers supporting those items of expenditure were disclosed. If Mr Ellis keeps records, they were not disclosed. I note it was written the day after the ledgers appear to have been produced by Mr Etheridge. I consider that is likely that the letter was produced for the purposes of the litigation, in an attempt to explain how Melton has disposed of over £95,000 in cash in the period, and the letter is dressed up as a contemporaneous document written for another purpose, to explain the cash available.[355]Mr Ellis is not a witness in these proceedings. His letter is not verified by a statement of truth. Taken at its face value, it was written for a purpose other than as evidence in these proceedings. Whilst I consider it likely that it was produced for the purposes of these proceedings, I do not know whether Mr Ellis knew the purpose to which his letter would be put. I can give very little weight to that letter as proving its contents.[356]Mr Lewis, in his report, identified several payments from Melton’s bank account that appear to be payments to players made by bank transfer rather than by cash. Although the bank accounts are redacted so the recipients of the payments were not disclosed, Mr Lewis identified at least two payments that appear to be for five games. As Mr Lewis observed in his report, that appears inconsistent with Mr Ellis’s letter which suggest that all the 25 players entitled to payment were paid in cash, so that £75,000 of cash was spent in this way.[357]Nor is it clear how the payments to staff and players were accounted for. As I raised with Mr Lewis in his evidence, I could see no reference to this expense in Melton’s Profit and Loss account for the year, prepared by its accountants at the same time as they produced Melton’s statutory accounts that were filed at Companies House. Melton’s case is that it has distributed £75,000 of the cash it earned from sales by way of expense payments to players in cash. It seems very surprising that Melton’s directors would forget such a significant expense so that it was entirely omitted from Melton’s Profit and Loss account.[358]Shortly after the trial, Melton filed at Companies House amended statutory accounts for the year ending 30 April 2025, in which its net assets figure was exactly £75,000 less than the net assets figure in the accounts for the year originally filed (net assets of £326,026 in the original filed accounts were reduced to £251,026 in the amended filed accounts). At Berwick Law’s request, Brabners drew my attention to that change in correspondence but without comment, on the basis that the trial was at an end and it was too late for further submissions.[359]The statutory accounts originally filed were signed by Mr Jonathan Manship and are stated to have been approved by the Board on 12 June 2025. It is hard to avoid the conclusion that, as a result of my own questions as to where the £75,000 paid to players appeared in the accounts, Melton realised that its statutory accounts did not reflect its position at trial and took no account of the £75,000 expense referred to in Mr Ellis’s letter. I find it very surprising indeed that the Board approved accounts apparently overstating the company’s capital and reserves by £75,000 because it omitted such a significant and obvious expense. This error, and the fact it was apparently corrected in response to my questions at trial, does little to allay my reservations about the accuracy of the accounting information supporting Melton’s claim.[360]I find it surprising indeed that there are no detailed cash ledgers showing cash expenditure, whether to players, pitch officials, or to repay loans (which Mr Ellis states, without more detailed explanation, is the way much the balance of the £95,225 cash was spent) and that Melton’s evidence as to how over £95,000 of cash was spent consist only of a letter from Mr Ellis to Mr Manship.[361]I have little confidence in the accuracy of Melton’s documentary evidence in support of its claim.[362]Melton argues that Mr Lewis’s approach in assessing the loss is incorrect because (as stated in Melton’s written closing submissions) Melton’s clubhouse expenses are paid for with the clubhouse card, but not with cash takings, which were spent as Mr Ellis outlines. That appears to be to be unlikely to be correct. Ms Longworth was unable to explain how her calculation of the profit margin of 70% was capable of being reconciled with Melton’s profit and loss account for the period. If the cash takings identified in the diary and Mr Etheridge’s spreadsheet are correct, some further purchases of goods for sale in the Pitchside Lounge must have been made from cash.[363]I consider that Mr Lewis’s method of estimating the likely profit margin is reasonable. It is not possible for me to do better than he has done in the absence of fuller disclosure from Melton of its records such as its VAT returns or evidence of its actual costs of purchase of food and drink.[364]Ms Longworth’s evidence relies on the accuracy of the documents referred to above, in which I have little confidence. I consider that Mr Lewis’s approach, in calculating a gross profit margin from the data as to actual receipts and actual costs paid into and out of the bank account is likely to be a more reliable basis of estimating Melton’s profit margin and its losses. I therefor prefer the evidence of Mr Lewis and the approach he has adopted to the calculation of Melton’s loss of profit for these elements of the claim.[365]Mr Lewis calculated a gross profit of 47% on sales. He applied that margin to the likely level of sales, taking at face value the cash receipts identified in the notebook headed “cash takings at MTFC” and replicated in the spreadsheet.[366]However, it was put to Mr Lewis in cross examination that his calculations contained an error of principle because he had applied the profit margin to all the cash sales, including those parts of it which he then excluded because they duplicated claims made elsewhere (gate receipts and venue hire). He had not taken into account that there were no purchases needed to generate the income from the gate receipts, which are pure profit for Melton. It was suggested that he should have excluded the gate receipts from the cash takings before applying the profit margin. He accepted the principle though was unable to follow the calculations put to him quicky in cross examination.[367]In its closing submissions, Melton calculated the loss, based on Mr Lewis’s figures but correcting that error of principle. It calculated the loss on that basis to be £36,042. I am not convinced that the calculation is entirely accurate, because the deduction should be of Melton’s actual gate receipts for the comparable period which Mr Lewis used to calculate the profit margin, rather than its claimed gate receipts. However, I do not have available to me any breakdown of Melton’s cash receipts that enables a more accurate calculation and I adopt the calculation in Melton’s closing submissions on this point.[368]I award the sum of £36,042 for this element of loss. Item 11: loss of profit from postponed fixture - claimed at £287.50[369]The experts did not consider this element of the claim due to its low value. The claim is nonetheless advanced by Melton, based on Mr Etheridge’s witness statement in the adjudication proceedings, in which he stated that this revenue was lost due to the club having to cancel a regular booking by Pet Foods at a loss of £70 and lost gate receipts as fewer people watch mid-week fixtured, exacerbated by the fact that the match was played in a “blizzard”. However, there is no documentation to support Mr Etheridge’s evidence. The only document to which I have been referred is a list headed Wednesday 19 April 2023 which lists various teams, including three Melton Town teams, one of which reads “Pet Foods five a side - £65”. There is insufficient evidence of this loss, which appears to be no more than Mr Etheridge’s opinion, and I will make no award. Item 12 Loss of profit due to sponsors who did not renew agreements for pitch side advertising boards for the 2023/24 season and/or are owed a refund for the period when the pitch was not available – originally claimed at £15,120 but claimed in closing submissions at £68,100[370]This element of claim increased by £40,000 at trial as the result of Ms Longworth’s opinion that £40,000 was lost to Melton as a result of Mr John Manship not sponsoring Melton by paying it £40,000 in the year of the remedial works.[371]There is no evidence in the witness statements of Melton to support this claim. Ms Longworth’s conclusion was based on documents. They include: 371.1. Melton’s AGM meeting minutes dated 1 July 2023, which state “John Manship has stated that due to the club relocating to a different town he would not be willing to sponsor the club until they are back in Melton. John Manship promises that when the defective pitch is back in use and Melton Town are back at the Sports Village, he will sponsor the club £100,000+ for each season moving forward.” 371.2. An invoice for £40,000 dated 12 August 2024 to John Manship Records for “headline sponsorship of Melton Town Football Club 2024/25 season home & away shirt sponsor 2024/24 (sic) season advertising boards including an XL Board at the Stadium Entrance”.[372]Ms Longworth concluded that, although it not referred to in any witness statement, she had seen notes from the AGM of 1 July 2023 referring to Mr Jonathan Manship proposing sponsorship of £100,00 plus each season once the defective pitch was back in use, that it may be that this opportunity was lost for the season, and that she had seen evidence of a sponsorship agreed for 2024/25 for £40,000, which did not include any VAT. She therefore identified that there may have been a loss to Melton of £40,000[373]Melton advanced a claim at trial for £40,000, being the loss of the sponsorship from Mr Jonathan Manship for the year. It therefore appears that this element of the claim has been advanced only following Ms Longworth’s report identifying it as a possible loss. Had Melton’s directors considered Melton had genuinely lost this money, I would have expected the claim to have been advanced in the Amended Counterclaim, together with the numerous other heads of claim. I consider that the fact it was not advances at that stage to be telling. I would also have expected it to have been dealt with in Melton’s witness statements.[374]As I have said, Melton is not a charity or a not-for-profit organisation but a private company partly owned by the “sponsor”, Mr Jonathan Manship, who would of course ultimately benefit from any increased profit or capital value of Melton as a result of any income it receives. This aspect of the nature of the alleged possible sponsorship was not considered by Ms Longworth.[375]I am of course mindful of the fact that Melton, and not its owners, is the Claimant, and I am assessing Melton’s loss, not its owners’. Nonetheless, the claim is an unusual one, as Mr Jonathan Manship would indirectly benefit from any money he paid into the Company he partly owns, and from any damages awarded to Melton from his own decision not to sponsor it. Given his position as both the sponsor who is alleged to have decided not to sponsor Melton for the year in question and as one of its two shareholders, I find it surprising that this claim is advanced without any evidence from him to support it.[376]There is no evidence in these proceedings as to the basis on which Melton’s owners fund it. Although the club has existed for many years (in what form I do not know), Companies House shows that Melton, was not incorporated until April 2020. It had the means to construct an artificial pitch and large attractive clubhouse shortly after it was incorporated. On the evidence before me as to the income of Melton, I infer that someone, most likely its shareholders, including Mr Jonathan Manship, injected a substantial amount of capital into Melton for it to be able to make those investments in the pitch and clubhouse. The distinction between injection of capital to fund Melton’s needs and a payment to it made by an owner as “sponsor” is unclear to me.[377]Nor is there any evidence that any “sponsorship” that Mr Jonathan Manship may have been prepared to contribute in the year was permanently lost to Melton, as opposed to being delayed until Melton’s teams played at their home ground again. That is a surprising omission, if it is Melton’s case that it has permanently lost the injection of money that its owner would have provided.[378]Further, and importantly, the document which formed the basis of Ms Longworth’s opinion was not a contemporaneous minute of the meeting. My understanding is that it was disclosed shortly before trial. It is my understanding that, although Melton’s position is that, when it was disclosed, it was disclosed in its raw format so its metadata was available to Hunts, Melton did not expressly alert Hunts to the fact that the document was not a contemporaneous minute of a meeting. I have looked at the information available on the Word document that was disclosed. It shows it was originally created on 30 May 2021, which I infer may be the result of Mr Ellis using an existing document as the template for his note. It shows it was last modified on 30 April 2025. From that, it appears that it was probably created in April 2025, nearly two years after the date of the meeting, and a couple of months before the trial. Melton accepts it was created shortly before the trial. I infer that it was created for the purposes of disclosing it as evidence in these proceedings.[379]Melton argues that, even though the typed note was produced some time after the meeting, it is consistent with Mr Ellis’s handwritten note, which was contemporaneous. Melton's closing submissions suggest that the handwritten contemporaneous notes were transcribed into the digital minutes. Those handwritten notes were disclosed during the trial. However, the handwritten note actually reads “JM won’t sponsor £100k whilst away – Melton”. The typed minute is therefore far from a simple transcription of a handwritten note. There was no witness evidence from anyone present at the meeting as to what was actually said.[380]Further, and importantly, although Mr Jonathan Manship did not give evidence in the proceedings, he did provide a witness statement in proceedings for the enforcement of the adjudication award. It is my understanding that Hunts was concerned about paying the award before these proceedings, as it may not be able to recover any sums found to have been overpaid if it was successful. Mr Jonathan Manship’s witness statement states:
“I continually provide personal funding to [Melton] from profits generated by my main business John Manship Records Ltd. While my aim is to enhance [Melton's] profits for the good of the business, even if it were not profitable I would provide it with funding at my own personal cost because I am committed to the club and believe in the importance of its role in the wider community.”
[381]On Mr Jonathan Manship’s own evidence, whilst he aims to produce a successful business in Melton, he funds Melton to the extent necessary due to his passion for football and his belief in the importance of the club for the community.[382]I consider Melton’s claim for lost sponsorship from one of its owners, Mr Jonathan Manship, to be an opportunistic and unmeritorious claim for sums that Melton has not actually lost. It is clear that Mr Jonathan Manship will inject funds both in the hope of making Melton successful, which would of course benefit him and Mr Manship, but also that he will support it if it needs support to ensure it remains viable and can offer a service to the community.[383]I find that Melton has not lost £40,000 “sponsorship” from Mr Jonathan Manship that it claims to have lost.[384]Melton also claims for loss of sponsorship from independent sponsors for the 2023/24 and 2024/25 season. Melton’s position is that it could not charge, or was required to credit, sponsors for pitch-side advertising for the period 2023/24 as the pitch was not being used for much of the period.[385]Mr Manship’s evidence was that sale of new sponsorship boards in the 2023/24 season became impossible as the ground was going to be shut. He also stated that Melton lost out on other sponsors as businesses from Melton did not want to sponsor a programme that is “shown in Loughborough”. I do not fully understand that statement, as it seems to me that residents of Melton Mowbray, who support their local team, are also likely to travel to see it play in Loughborough and will see the programme.[386]Mr Manship says he personally visited each of the sponsors to explain the situation and to ask them to stay for further seasons, and that “to keep our sponsors, we had to agree with those who had boards in previous seasons that they would not need to make payment for the 2024/25 season”. He gave no more evidence than that on this issue.[387]It would seem to me surprising if all the sponsors refused to continue their sponsorship unless they were offered a free year’s advertising.[388]Mr Lewis values this claim at £13,680, which he based on a disclosed spreadsheet showing pitch side advertising revenue for the period 2022/23. He excluded sponsorship of shirts, on the basis they would not be likely to be affected by issues with the pitch. Ms Longworth does not exclude the sponsorship that was not pitch side advertising, such as sponsorship of shirts. She also valued the claim on the basis that, although Melton waived sponsorship fees to some sponsors for the 2024/25 season, it was not obliged to do so. Ms Longworth valued this claim (excluding the £40,000 referred to above) at £28,100.[389]My understanding is that the disclosed documents, on which the experts based their reports, consisted simply of spreadsheets and not the underlying invoices or payment information.[390]There is no clear evidence that sponsors would have been lost if they had not been offered a free year’s advertising for the 2024/25 season. The fact that Melton chose to offer a year’s free advertising was a commercial decision. I consider that there is insufficient evidence that Melton’s loss of revenue for 2024/25 was caused by Hunts’ breach of contract, and its claim for lost profit should be limited to loss of pitch-side advertising for 2023/24.[391]The experts are agreed that there are no deductions for costs to make from this income stream. I award £13,680, being Mr Lewis’s assessment of the loss. Item 13: lost profit from gate receipts – claimed at £20,803[392]Melton claims £20,803 for its loss of profit from gate receipts, on the basis that, as Mr Manship put it, attendances “fell off a cliff for the season we played at Loughborough Dynamo”.[393]Ms Longworth calculated the loss at £20,803. Mr Lewis values it at £8,816.[394]Ms Longworth’s calculation assumed 20% growth in annual attendance year on year and assumes that the average attendance in 2023/24 would have been 235 but for the need to play in Loughborough. She calculated a loss of 150 attendances per match.[395]Mr Lewis valued this element of the claim at £8,816, which he calculated by reference to the average attendances at matches between 2021/22 and 2024/25. He calculated that attendances during the 2023/24 season, when the pitch was being rebuilt and Melton played at Loughborough Dynamo, were 111 per game lower than the average of other seasons. Mr Lewis based his calculation on the average receipts from gate receipt and kiosk receipts from those attending and calculated lost revenue of £10,256, before deducting any costs.[396]Melton argues that Mr Lewis ignored the fact that “attendances would not continue their trend of growth from previous seasons". However, I do not see a trend of growth from previous seasons. It is true that there was an average of 196 attendances per match in 2022/23 compared with 164 in 2021/22. I do not consider that one year’s increase creates a trend or that it is reasonable to infer from that increase that gate receipts would have continued to grow at the same rate as they did between 2022/23 and 2023/24 but for the fact that Melton played from Loughborough Dynamo’s ground in 2023/24. Two data points do not create a trend.[397]Similarly, Melton argues that Mr Lewis did not account for the drop in attendances in 2024/25 “attributable to the disruption caused by Melton’s relocation to Loughborough”. Melton relies on Mr Manship’s witness statement in which he says “I think the season away had put off some people from coming.” Whilst that may be Mr Manship’s opinion, there was no actual evidence that the attendances would have been higher in 2024/25 but for the season at Loughborough. Melton also relies on Mr Etheridge’s evidence that Melton has not been able to get back casual fans that Melton had managed to attract and were starting to come regularly before the temporary move to Loughborough. However, there is no documentary or more detailed evidence to support these statements, which appear to be no more than opinions.[398]I do not consider there is sufficient evidence from which I can in conclude that Melton suffered any loss of attendances during the 2024/25 season caused by Hunts’ breach of contract, or that the takings in 2023/24 would have been 20% higher than they were in 2022/23.[399]I prefer Mr Lewis’s calculations in relation to the number of lost attendances.[400]Melton also argues that Mr Lewis’s basis of calculating the income from the average attendance is incorrect, because he fails to take into account “three anomalous entries” in the spreadsheet recording attendances and income for 2022/23, which show attendances at matches against Selston, Kimberly Miners Welfare and Anstey Nomads, but no income from those matches. Melton argues that Mr Lewis should have excluded those matches from his calculations as they “produce an artificially low result”. Ms Longworth based her calculation on the income from 2023/24 and 2024/24, which do not have similar entries of matches with no income against them. However, there is no evidence to explain these “anomalies”. Melton relies on the total number of attendances from this spreadsheet and I have no evidence that the zero income shown for these matches are mistakes. I find no reason to depart from Mr Lewis’s approach, which is based on Melton’s own records, in the absence of any evidence to explain that the zero income from gate receipts from certain games is inaccurate or an error.[401]Mr. Lewis made a reduction for the costs of gate staff and ground maintenance. Mr Manship’s evidence is that Melton is “a community football club with zero employees and only volunteers”.[402]Much as I find it surprising that people are willing to work for free for company owned by others, I accept the evidence of Mr Manship, Mr Etheridge and Mr Roberton that they are. As a result, I agree with Ms Longworth that there should be no deduction for any savings of staff costs resulting from playing at Loughborough.[403]I find that Melton lost a total of £10,256, being its lost revenue, with no deduction for any saved outgoings in the form of ground staff or gate staff, as Melton would not have paid its volunteers. I award £10,256. Item 14: lost profit from regular pitch bookings – originally claimed at £49,500 and now claimed at £61,500[404]Melton’s claim is £61,500, based on Ms Longworth’s calculation of £61,500. Hunts argues that the loss is limited to £19,600. Mr Lewis’s assessment was £34,300.[405]At the time of their joint report, both experts understood that the maximum period for which the pitch could be used was 20 hours per week. That has since been clarified. It is clear from correspondence disclosed by Melton that, whilst a pitch is expected to withstand 20 hours’ use per week, there is no bar placed on its use for more than 20 hours per week for the pitch to retain FIFA Quality Pro certification. The pitch may need additional maintenance if used for longer, and it may affect the warranty from Greenfields if it is overused.[406]Mr Lewis based his calculations on the summer 2022/23 booking schedule to calculate regular bookings, and used a fee of £50 per hour, for 28 weeks for the loss period.[407]Ms Longworth treats the period of loss as 30 weeks, based on her instructions that the pitch was closed for external bookings between August 2023 and May 2024, though it should have been capable of use at the end of February 2024 under Melton’s contract with PST. I note that Melton’s pay less notice to PST makes a claim for its lost profit from its inability to use the pitch from 4 March 2024 onwards. I find that Melton’s inability to use the pitch after 4 March 2024 was not caused by Hunts’ breach of contract.[408]Melton is critical of Mr Lewis’s choice of the summer period as the basis of likely bookings. The period of loss (between August and February) falls into winter, when the bookings are slightly higher. I agree with Melton that the appropriate period of bookings to consider for comparison is the winter season.[409]Ms Longworth based her calculations on the winter season, and for 30 weeks which she calculates as the number of weeks from August to February.[410]Hunts argues that the period of the works was from November 2023 to February 2024 (though they overran), and the period of claim should be more limited. However, I accept that Melton needed to enter into a pitch share arrangement with another club, and that it could not commit to regular bookings when it knew that its pitch was due to be replaced. I consider the period of 30 weeks is reasonable in the circumstances.[411]I prefer the evidence of Ms Longworth on this issue, and find that Melton’s loss to be £61,500, based on her calculations.[412]There are no deductions from this sum as the ground would have been staffed by volunteers, so Melton would have benefited from the full income from pitch hire as pure profit.[413]I will allow £61,500 for this element of the claim. Item 15: loss of profit from physiotherapist room – claimed at £2,800[414]This is no longer pursued. Item 16: loss of profit from Summer and half-term camps – claimed at £13,390[415]Ms Longworth valued this loss at £13,390. Mr Lewis valued it at nil, on the basis that running summer camps would have caused the pitch to be used for more than 20 hours per week. In addition, he noted that Mr Manship had cancelled plans for camps in October 2024 and February 2025 as he was needed drive his daughter to training sessions with Birmingham City Football Club.[416]The evidence shows that Melton had run camps, including in February 2023. I accept Melton’s evidence that it was not able to run summer camps in 2023 and that it suffered a loss as a result. I accept that Melton had run summer camps in the past and did so after the pitch was remediated and that it would have done so had it been in a position to do so.[417]Mr Etheridge’s evidence is that Melton received income of £2,525 for a camp hosted in February 2023. Ms Longworth makes no reduction from this income, on the basis that they would be run by Mr Manship without payment and by First Team volunteers.[418]I find that Melton has lost £13,390 as calculated by Ms Longworth and award that amount for this head of loss. Item 17: loss of profit from junior tournament – claimed at £12,080[419]Melton claims loss of profit from a summer junior tournament which it claims would have taken place over a weekend during the summer of 2023. This was originally claimed in the Amended Counterclaim in the sum of £2,640. However, Melton now claims £12,080, based on a 68 team tournament of the type that it planned for the summer of 2025.[420]Mr Lewis valued this claim at nil, on the basis that no tournament was run in the summer of 2023 and no evidence that one was being planned, despite the pitch being available until August.[421]Mr Etheridge’s evidence is that he was looking to set up a summer junior tournament over the summer holidays taking place over 2 days during the weekend, accommodating 48 teams of different ages. There would have been an entry fee of £30 per team. His evidence is that the plans were halted due to the loss of the pitch’s FIFA certification. He calculated the tournament would have generated sales of food and drink of £600 per day. There would have been some costs of trophies.[422]An email dated 24 October 2024 from Dave Newton of ITI Networks services states that a 48-team grassroots tournament was planned in the Summer of 2023, with an anticipated profit of £2,600, but the pitch was unusable. Mr Manship’s evidence is that Mr Newton was in charge of organising the 2023 tournament. I note his letter states that the anticipated profit is stated at £2,640 and the plan was for a 48-team tournament.[423]Mr Manship gave evidence in his supplemental statement of plans for a 2025 tournament for 68 teams, an entry fee of £45 with anticipated gate receipts from parents/siblings of £3 per player, and a further average spend per person attending of £5. However, I do not accept that was the expected income when the tournament was considered in 2023. It appears form the evidence of both Mr Etheridge and the letter from Mr Newton that the expected income did not include gate receipts, from which I infer that it was not at that time intended to charge family members to attend the tournament.[424]I find that Melton had planned to hold a tournament in 2023 which it did not do due to issues with the pitch. However, I do not accept Mr Manship’s evidence in his supplemental witness statement as to the profit that would have been earned from such a tournament as it was planned at that time, which appears to have been calculated on a different model from that planned in 2023. I find its profit would have been about £2,640.[425]I award £2,640 for this head of loss. Item 18: loss of profit from lost players in Melton’s junior academy – claimed at £23,351[426]This item is claimed in the Amended Counterclaim as a loss of profit from lost players in Melton’s football junior Academy for 2023/24 season due to the defective pitch, based on a loss of estimated fifty children in the junior Academy paying subscriptions of £30 per month for 12 months and a signing fee of £30.[427]Mr Etheridge’s evidence is that Melton lost, or had to turn down, opportunities to work with additional junior teams due to uncertainty around the pitch, that junior teams will move around and do not want their games called off at short notice, so they want to play on artificial surfaces. His evidence is that Melton had inquiries from teams but was not able to accept them as Melton did not know what was happening with the pitch, when the work would be done and for how long Melton would need to hire alternative training venues to accommodate the teams. He cited several teams that fell into this category, being Mowbray Rangers under 7s, under 8s and under 11s and Stoneygate under 13s, and also Brooksby under 23s. He estimated that the income lost would be about £19,500.[428]Mr Manship’s evidence is that subscriptions would be paid for 11 or 12 months of the year. His evidence was that “we had to turn away quite a few interested new junior teams. To try and keep the existing junior teams from leaving we did not charge subs for the 2023/24 season to keep them onside. We also paid for their alternative training venues ourselves rather than having the junior teams.”[429]Ms Longworth calculated the loss on this basis at £17,800, to allow for likely costs. Mr Lewis valued the claim at nil, based on the lack of contemporaneous evidence to support the claim and the lack of pitch capacity (as it would be used for more than 20 hours per week). As mentioned above, I am satisfied that there was no bar on use of the pitch for more than 20 hours per week.[430]However, in a letter dated 9 December 2022, Brabners, responding to an allegation from Berwick Law that the pitch was being overused, stated as follows:
“You have referred to claims made by our client on Instagram regarding the availability of the pitch suggesting that the Instagram post illustrates that the pitch is used for more hours than appropriate for a FIFA quality pro pitch. This is incorrect… the Instagram post was essentially an advert to encourage people to hire the pitch with the club having discretion to refuse any bookings which would take the weekly usage beyond 20 hours. The pitch is not used for more than 20 hours per week…… The total hours per week that the pitch is allowed for use is 17 hours 20 minutes. …. demand dramatically decreased throughout the spring and summer months due to a decreased demand. Accordingly, our client evidently ensures that the pitch is not used for more than 20 hours per week”
[431]Whilst that letter relates to the use of the pitch in 2022/23, and not in 2023/24 it does suggest that Melton was seeking to limit the use of the pitch to 20 hours at the time the letter was written.[432]In late May and early June of 2025, Mr Manship corresponded with Mickael Benetti of FIFA about the pitch. On 29 May 2025, Mr Manship said that Melton was “aiming to keep the workload around 30 hours per week, in line with the Greenfields’ manual. Do you think this is a reasonable target while still ensuring that the maintenance is performed - in line with these hours – and the Quality Pro certification can be sustained over the coming years?”[433]Mr Benetti’s response was that it is crucial to follow Greenfields’ maintenance recommendations in alignment with pitch usage.[434]On 2 June, Mr Manship responded “we are keeping usage within Greenfields’ guidance limits. To confirm, the 20 hours per week guideline from FIFA is a recommendation, not a strict restriction – could you please verify this as well?”[435]Mr Benetti responded:
“the 20 hours per week usage is not a restriction”
[436]From this, it appears that, by 2025, Melton was restricting its use of the pitch to 30 hours per week.[437]There is no detailed analysis of the hours for which the pitch has actually been used, or the effect of fulfilling the demand alleged by Melton from junior teams that would have joined Melton. However, Ms Longworth cited in her report an analysis carried out by Mr Etheridge dated 27 April 2023. He referred to a bookings schedule, explaining that some of the bookings identified in it are not for every week for the reasons explained in the email, and concludes “Across the year, taking all of this into account, the pitch is used for 562 hours in total. This equates to an average of just under 11 hours per week. Even with the occasional bespoke booking, we would still be well below 20 hours. The busier winter period is averaged out at 13.5 hours per week, with the summer period at just 8 hours per week.”[438]Whilst it appears that, at least in 2022, Melton was keeping its use within 20 hours per week and, by 2025, it was seeking to keep use of the pitch within 30 hours, as recommended by Greenfields, it still unlikely that the bookings that Melton claims it lost would have been precluded by Melton’s wish not to overuse the pitch.[439]I find that Melton did lose income from junior teams that would have moved to Melton but did not do so because of Melton’s concerns about the pitch and uncertainty as to the period during which it might be out of use due to the need for remedial work. I accept Ms Longworth’s calculation of the loss. I award £17,800 for this head of loss. Item 19: loss of profit from professional football academies or loss of chance of such profit – originally claimed at £80,000, now claimed at £260,000[440]Melton claims £260,000 for lost profit from a professional football academy which it claims it would have established in the autumn of 2023. It claims it lost the opportunity to do so because of the defects in the pitch. Melton claims that it was pursuing a partnership with SGI.[441]In its original claim pleaded in the Amended Counterclaim, it claimed that it would have established an academy of 40 students in the local area paying Melton £2,000 per student per season. Its claim was for loss of one year’s potential revenue from an academy. Alternatively, this is claimed a loss of chance of generating such a profit.[442]Ms Longworth valued the loss at £260,000. Her calculation assumed that the opportunity was permanently lost and included lost profit for three seasons (2023/24 to 2025/26 inclusive) despite the fact that the pitch was expected to be remedied by early March 2024 and was actually remedied and capable of being played on months before the start of the academic year 2024/25. The basis on which it is said that the loss should extend beyond a year is not clear to me.[443]Although Melton has suggested in its evidence that SGI pursued opportunities elsewhere, there is no evidence that it did so locally so as to diminish its interest in setting up an academy with Melton.[444]Melton supports its claim by evidence that it was approached by another provider, Future Lions, with a view to establishing an academy with Melton.[445]Mr. Lewis values the loss at nil. However, if I find that Melton has sustained a loss, he values it at £20,000, taking into account likely costs, and basing the loss on the originally claimed one year’s lost income.[446]Melton relies on the evidence of a third party intermediary or broker, Mr Cox. In his witness statement, he explained that academies aim to help students form a career in the sports industry; that they typically run from Monday to Friday with football training for half the day and formal education for the other half; and they enable students to obtain qualifications such as BTEC or NVQ. He explained that his role was to connect sports education providers such as SGI with football clubs with a view to setting up what he descried as “an academy partnership” in which the club would facilitate the sporting arm and the education provider the teaching and qualifications. It is my understanding therefore that establishing or hosting an academy would require Melton to accommodate students who are in full time education for classroom or formal education for about half each day and to give them sports coaching or training for the other half of the day, with the formal education being provided by a provider such as SGI.[447]Mr Cox described himself as a former consultant of SGI. In his oral evidence, he explained that he is well connected in the football industry and his role was to put SGI and potential clubs in touch with each other, for which he was paid a finder’s fee. He did not work for SGI except as a consultant or broker, was not involved in any negotiations for any agreement once he had effected an introduction. That was left to SGI and any club he had introduced to them.[448]Whilst I do not doubt Mr Cox’s veracity, his value as a witness of fact as to the likelihood of SGI and Melton having agreed to set up an academy in 2023/24 but for the pitch issues is limited. It would not be his commercial decision, but that of SGI and Melton, whether to proceed. Further, he was remunerated on a finder’s fee basis and clearly had an interest in being optimistic about the prospects of an academy succeeding financially.[449]Mr Cox says in his witness statement that he has observed and had involvement in the creation of a large number of such academies. When asked about academies he had helped to set up by his introductions to SGI, he said he thought there were three around that time. He mentioned one was Grantham Town. In his oral evidence he also said that the Grantham Town academy was “going under” by the time he was involved with Melton. From that, I infer that only two of the three academies established following introductions he effected to SGI had succeeded.[450]He explained the general financial arrangements for an academy. A provider such as SGI would secure funding from the Education and Skills Funding Agency, typically about £4,000 per student. Of that, about £1,500 might be paid to the club such as Melton for its role running the sports side of the academy, and the remaining £2,500 would be used by SGI to fund the education (teachers, materials etc).[451]Turning then to the evidence as to whether Melton would have formed an academy in 2023/24 but for the pitch issue, the documentary evidence shows that, apparently after a meeting between Mr Jonathan Manship and SGI, SGI sent a draft SLA to Melton on 8 March. That is presented by Melton as evidence that an agreement was likely to have been reached.[452]Melton refers to an email dated 15 March 2023 from someone called Carol, who is described as “Secretary Melton Town FC” headed “Meeting Minutes”. The note says that the meeting was mainly discussing the “end of season do”. Under “Other Business” it states “Discussed the proposal of a training camp for a Spanish academy, John to get back in contact with them to discuss and also need to know what is happening regarding out pitch”. Although the reference to a training camp does not appear to fit with the proposal under consideration, Melton submits this is evidence of internal discussions about the arrangement.[453]It is of note that, only a week after the SLA had been received, Melton were questioning the state of the pitch in the context of the “training camp”. That suggests that any discussions with SGI were likely to have taken place at a time when Melton knew that the pitch may be an issue for its ability to enter into such an agreement. It appears that Melton had reservations from the outset of the discussions with SGI and the discussions do not appear to have advanced far.[454]I find it surprising that Melton relies on Mr Cox, and not on the evidence of its own directors, on the question of the likelihood of this opportunity having resulted in an academy being established. Mr Manship’s original witness statement, in relation to this head of loss, simply states “This is covered in Paul Cox’s witness statement”. He does not give evidence in his witness statement that it was his or Mr Jonathan Manship’s firm intention to enter into a contract with SGI, the only education provider with which it appears Melton was in discussion at the time.[455]Further, it is of note that the correspondence shows that discussions with SGI appear to have been conducted by Mr Jonathan Manship, who has not given evidence in these proceedings, which I also find surprising if it was his intention to proceed with hosting an academy following his discussions with SGI.[456]This is a somewhat unusual example of a claim based on loss of chance. Typically, in claims relating to loss of chance, the issue for the court is whether the other party would have agreed to contract with the claimant. However, in this case, as Mr Cox fairly accepted in his oral evidence, the real question is whether Melton would have entered into an agreement with SGI.[457]Mr Cox conceded that the contract sent by SGI to Mr Jonathan Manship in March 2023 was not a bespoke contract tailored to Melton, but SGI’s standard form contract that it would offer to any interested club. It named SGI as a party but left the other contracting party blank. This suggests that negotiations had not progressed as far as the preparation of a draft agreement relevant to Melton in particular.[458]The effect of draft agreement appears to be that the risk establishing an academy is principally Melton’s rather than SGI’s. The draft contract is for three academic years. The termination provisions provide for termination during the final year of the duration of the draft contract. It provides that “the Club will be under a contractual obligation to recruit the minimum number of students to commence the programme with SGI and the club in the following academic year and this agreement will be extended until completion of the two year study programme” . The draft agreement provides for a minimum number of students of 15 per cohort, with SGI (but not the Club) having discretion to reduce that number by written agreement. As Mr Cox accepted in his oral evidence, the real issue was not whether SGI would have entered into the agreement, because it was in their interests to do so, with Melton guaranteeing the student numbers. The real issue was whether Melton would have entered into the agreement, though his view was that there was little risk to Melton of not attracting the required numbers of students.[459]With the commercial realities of the proposed deal in mind, I do not consider Mr Cox’s evidence as to the likelihood of SGI being willing to establish an academy at Melton to be of much assistance in determining the question of whether Melton has lost a chance of establishing an academy. The more relevant issue is whether Melton would have chosen to do so, either with SGI or with another provider of academy educational services, since the success of it appears to have been Melton’s risk not SGI’s.[460]In that context, the absence of coherent evidence from the controlling minds of Melton, Mr Manship and Mr Jonathan Manship, is important. Mr Manship leaves that issue to Mr Cox, who is in no position to address it, as he controlled neither Melton nor SGI. Mr Jonathan Manship, who was the person who it appears was discussing the possibility with SGI, has not given evidence at all.[461]Melton supports its argument that it would have formed an academy in 2023/24 but for the pitch issues by reference to later discussions with another provider, Future Lions.[462]In a supplemental witness statement served shortly before trial, Mr Manship says that, “ahead of the 2025/26 academic year, [Melton] is currently negotiation with Future Lions in respect of setting up an academy”; that there is a working draft agreement; and they had negotiated a figure of £1,800 per student. He said that “as with SGI, Future Lions have approached us after they have been made aware of our facilities…”[463]The first point to note is that, if Melton was enthusiastic about establishing an academy, it is surprising that it was reactive rather than proactive and waited to be approached by Future Lions to explore the possibility of establishing an academy once the pitch was remedied, rather than re-approaching SGI or another provider.[464]Mr Manship states that Melton “are putting the following plans in place:” and lists those plans. He says there would be no cost for insurance, laundry, or internet, the trials for the academy and open evenings could be accommodated at the clubhouse and pitch and that they already have people at Melton who manage Melton’s social media accounts. That appears to be a list explaining why Melton would not incur additional costs, rather than, as he suggests, “putting… plans in place”.[465]He also refers to the willingness of a sponsor who had offered to sponsor the kit for the academy if Melton agreed a deal with SGI but does not exhibit any recent documents about that sponsorship. He refers to having “obtained a quote” for a minibus, but the document relied on appears to be no more than an advertisement on Autotrader for a low value second hand minibus.[466]He states that he had asked Thomas Wakley, a Melton player, to take on the role of assistant coach. He exhibits two screenshots of WhatsApp messages with Mr Wakley. One shows a message from Mr Wakley dated 29 December, but I cannot tell in which year, in which he says he has “heard about Melton opening an Academy sometime who would I speak to about getting involved work wise with it?” Any answer to that message does not appear to have been disclosed. There is a further screenshot exhibited. It is not possible to tell the date of the message. Someone (I assume Mr Manship) says “remember what we spoke about a while ago, regarding the Academy at MTFC, I would love to chat more with you around this. We couldn't do it because of the pitch issues, but now we're open and back generating. I think we will be in a position hopefully soon to have a chat regarding coaching it”. No further messages are disclosed.[467]I do not consider the very limited evidence referred to above to be compelling evidence that Melton is genuinely actively preparing for the possible opening of an academy with Future Lions for the year 2025/26.[468]In any event, as I have mentioned, Mr Manship does not expressly state, even in his supplemental witness statement, that it is Melton’s firm intention to host or form an academy, whether with Future Lions or anyone else.[469]The pitch had been usable for over a year by the time of trial. If Melton considered that it has been prevented from earning income from an academy that it asks me to find it would have hosted in 2023/24 but for the issues of the pitch, there appears to be no adequate explanation as to why it did not establish an academy for the year 2024/25, and still less explanation as to why it has not done so for the academic year 2025/26.[470]It was put to Mr Manship that Melton had not taken the necessary steps to prepare for such an academy which, on its current case, would involve it hosting 40 full time students in the first year, 80 in the second and 120 in the third. He was asked whether Melton had sought planning consent to use the pitch and clubhouse for this purpose. Whilst there is no evidence before me as to the planning use classes into which falls the use of premises for an educational academy in which students would spend half a day in the classroom and half the day in sporting activities, I would be surprised if it required no additional planning consent compared with the premises’ current permitted use as a football pitch.[471]Mr Manship was referred to the planning approval for the pitch, which limits the use of the pitch to Melton and “the other organisations as specified in the Applicant’s letter dated 3 June 2021 for the purposes of training and match fixtures.”[472]He was asked whether Melton had ever applied in writing in relation to setting up an academy. Mr Manship’s response was “the Council rang me on that point and they were more than pleased with what we were providing for the community at our own cost. And they said, at that point there, you won’t need to do. That was a phone call with Jim Worely and also Aysha Rahman who is chief director of MBC. …. The Chief of the council Edd de Coverly came out and his exact words were – “Fantastic Tom you are doing something we should be doing at your own cost”.”[473]I was not convinced that this dialogue answered the question that he had been asked. It appeared to be his recollection of members of the Council congratulating him on Melton’s work. He added:
“Going back to the academy, the academy would be called Melton Town, it would be based at Melton Town playing under our name so we wouldn’t need approval. Point 3 says Melton Town. Can you see that?”
It appeared to be Mr Manship’s view that the operation of an educational academy including using the clubhouse as a classroom for half the day for up to 180 students fell within the permission for “training and match fixtures” as long as it was in Melton’s name. From his evidence, I had the impression he had not previously properly considered the issue.[474]It is Melton’s case that Mr Manship would act as the coach for the academy, with assistance from an assistant coach such as Mr Wakley. He confirmed a coach would be expected to have UEFA B qualification which he did not yet have but that he was a candidate for such qualification and he considered that he would be “signed off” with “two more sessions”.[475]With regard to the suitability of the clubhouse as a venue for an academy hosting students, he said that they had spoken about a screen across which would give other users of the club access to the bar area but would screen the students from the bar, and that would be sufficient. It was not explained how up to 180 students could be accommodated in the clubhouse in that way. When I questioned Mr Manship as to how groups from two or three years’ intake could be accommodated in the clubhouse separated from the bar by a screen, he suggested that they would use more than one screen. He did not explain how that would work within the confines of the clubhouse.[476]Melton argues that correspondence with the Council shows that, if the academy required additional space or more space was required due to the academy’s use of the pitch, it could have licensed further land from the Council for a nominal payment of £1. It refers me to exchanges of emails with the Council, in March and April 2024 and the agreed terms of a licence. Mr Manship’s evidence is that Melton are making such arrangements “and that it would be used by the academy and the junior teams if for whatever reason our artificial pitch was fully booked”.[477]Mr Manship’s evidence is that this had been discussed informally with the Council “ahead of the SGI academy…. When the academy fell through we no longer needed the land.” His evidence is that, in the 2023/24 season Melton picked the deal up again and also thought it would be useful for its junior teams (especially while the pitch was being completed) and that he is currently making arrangements with the Council to gain a licence for additional land. However, I note that Melton’s stated reason for the request in its correspondence with the Council is for use for “junior football” and because “we are being asked constantly for junior teams to join us and present we are having to turn teams away, with is not positive.” There is no mention of the possible pressure on Melton’s existing facilities caused by a possible academy, or the intention to use the land for an academy.[478]Further, the heads of terms for the licence produced by the Council in April 2024 limit the use of the land to “pitches for youth teams in association with MTFC”. It appears from the correspondence also that the Council intends for a local school to have access to the land, both during school hours and at other times out of the football season, and that Mr Manship confirmed that Melton were agreeable to that as long as evenings and weekends during the football season are not affected. The agreed heads of terms provide that:
“The Licensee does not have exclusive possession of the site and must ensure that there is free and unencumbered access to the area during normal school hours for the purposes of informal recreational use by Birchwood School and Melton Vale Post 16 Centre.”
Those terms do not appear to me to be consistent with the proposed licence of additional land being for use by an academy, which Mr Cox explained would be likely to require use of classroom facilities for half a day and sports facilities for the other half of the day. I have not seen any documents making clear that the Council understands that the land is needed for an academy.[479]Also, it appears that Melton had not progressed its proposal to take a licence of additional land between May 2024 and March 2025, when there was some correspondence with the Council in relation to the lease of the land already used by Melton. In one of the emails, Mr Manship asked “If you could please keep us updated on the rugby fields- as I mentioned to the previous MBC workers, we’re currently having to turn away teams due to limited space”. If it was actively intending to establish an academy admitting students in 2025/26, it seems surprising that it was not advancing those discussions until March 2025.[480]Melton relies on correspondence with Future Lions relating to a possible academy for 2024/25 in support of its claim. On 2 May 2024, Future Lions sent to Mr Manship an email saying that “the next stage to secure funding for September 2025 and start planning recruitment for August 2024 is attached in PPQ document.” Enclosed is a form called “VLUK Pe-partnership questionnaire”. It asks for details such as staff information, teaching areas, break out space areas toilet and changing facilities, and financial information. It is not clear whether Melton completed that form and returned it. An email in February 2025 from Future Lions sets out the basic financial proposal from Future Lions. On 21 February, Mr Manship enquired whether Melton could have up to 40 students in year one if possible. On 11 April 2025, Mr Manship emailed Future Lions in an email headed “Academy 25/26”:
“I just wanted to keep you updated on the progress with the Academy side of things. Melton Borough Council is currently finalising the lease for the adjacent grassland which was suppose (sic) to be done way beforehand but we had to hold off because of the defective pitch issues, this grassland will be available for Academy training and matches on the FIFA quality pro pitch. As soon as the lease is completed, we will be in touch to move things forward with you.”
[481]I have not been referred to any subsequent correspondence with Future Lions between April and the trial, which took place in June.[482]Melton also relies on a draft agreement between itself and Future Lions. I note that the contracting party does not appear to be correctly described. It does not name the company, Melton, but simply identifies Melton as “Melton Town FC (“the club)”. Curiously, it states that it will commence on 1 September 2024, despite being described in the index of documents as “Future Lions - Melton town FC Agreement September 2026”.[483]Mr Cox’s evidence was that the academy year would begin in July or August. There is no evidence to suggest that Melton has entered into any agreement for an academy with Future Lions or anyone else for the year commencing in the summer or autumn of 2025. The trial took place in June 2025. If Melton were to commence an academy and admit students to it in the late summer or autumn of 2025, it would have entered into an agreement and prepared for it.[484]The fact is that, more than two years after the time when Melton contends it was thwarted in its plans to set up an academy that it asks me to find would probably have earned substantial profits for Melton in 2023/24, and over a year after the pitch has been fully remedied by being rebuilt, Melton have not made any concrete plans to set up or host an academy. The condition of the pitch would not have prevented its use for an academy for the year commencing Autumn 2024. Yet there is no evidence that Melton has actually established or firmly intends to establish an academy at the time of trial, in June 2025.[485]In summary, I am not satisfied on the balance of probabilities, that, but for the pitch problems, Melton would have established an academy. That is not because I am not satisfied that SGI or Future Lions would not be willing to contract with Melton to provide teaching for an academy, but because I am not satisfied that Melton intended or even now intends to establish an academy.[486]It follows that this element of the claim fails both on Melton’s primary case and its alternative case, based on loss of chance.[487]I will make no award for this head of claim. Item 20: loss of profit from clubhouse venue hire by local businesses claimed at £4,800[488]Melton claims £4,800 for loss of profit from venue hire. The experts have considered the documentary evidence of income from this source. Ms Longworth estimates the likely loss at £2,500, based on her assessment of one booking fee of £100 per week, and making an adjustment for VAT. Mr Lewis agrees with the claim as quantified by Melton, but does not explain his calculation. I prefer Ms Longworth’s reasoned evidence on this point and award £2,500. Item 22: the costs of loss of staff and management time, claimed at £27,791.66[489]This item is claimed in the Amended Counterclaim for time incurred by the directors of Melton, calculated at a rate of £12.50 per hour. I am not entirely clear whether this item had been abandoned at trial by Melton, so I will address it for the sake of completeness. Neither expert puts any value on this element of the claim, there being no evidence to support it. It also sits very uncomfortably with Melton’s evidence that all its staff are unpaid volunteers. It appears to me to have been an entirely unsubstantiated claim. I make no award in respect of it. VAT[490]The pleaded Amended Counterclaim claimed VAT on some elements of the claim, but not others. The parties are agreed that any damages should be claimed net of VAT.[491]In her decision, the Adjudicator awarded sums for the various elements of Melton’s claim, some of which were expressed to be “plus VAT” and some of which were not. In her decision, she made an award of a net sum “plus VAT as applicable”. Melton issued proceedings to enforce the Adjudicator’s decision, which were settled between the parties. Melton raised two invoices for the sums awarded. On the invoice for the award for the costs of remediating the pitch, they charged VAT at 20%, being £148,658.60. A separate invoice for consequential losses and interest stated that VAT was 0% on that invoice. The parties are agreed that the invoices should not have included VAT, because the award was for damages and not for a VAT-able supply. Hunts did not challenge the VAT treatment on Melton’s invoices, which it paid. As a result, Hunts has paid a total of £961,306.99 inclusive of VAT. Melton accounted to HMRC for the output tax it had charged and Hunts reclaimed the VAT it had paid Melton from HMRC as input tax. The parties are agreed that this requires correction.

ADJUDICATION COSTS

[492]In its Amended Particulars of Claim, Hunts claimed repayment of £36,968.64 paid by way of Adjudicator’s fees on the ground that the Adjudicator should have found for the Claimant and ordered the Defendant to pay her fees. This argument was not advanced by Hunts at trial. In any event, adjudication is a no costs regime and there is no legal basis on which Hunts would be entitled to recover the Adjudicator’s costs, even if I had made no award in Melton’s favour on its counterclaim in these proceedings.

CALCULATION OF THE SUMS DUE BETWEEN THE PARTIES

[493]I calculate the total amount to which Melton is entitled caused by Hunts’ breach of contract to be £831,824.53.[494]Hunts paid Melton £812,648.39 net of VAT pursuant to the Adjudicator’s award and an additional £27,415.49 in respect of interest as agreed.[495]Subject to any issues as to VAT and interest, the balance due to Melton would be £19,176.14. However, as a result of the fact that Hunts paid Melton VAT on the Adjudicator’s award, there is a net payment due to Hunts, being the difference between the sum it paid Melton inclusive of the VAT that was incorrectly included on Melton’s invoice (£961,306.99) and the total I have awarded in these proceedings (£831,824.53), being £129,482.46.

INTEREST

[496]I will hear submissions on interest when this judgment is handed down.