His Honour Judge Peter Coulson QC:
A. INTRODUCTION
- This action concerns a house called 'Maison d'Or' that was built for the Claimant, Mr Ian McGlinn, in St Aubin, in Jersey. The house took three years to build, between January 1999 and December 2001. Following the departure of the building contractors in January 2002, when the house was substantially complete, it sat empty for the next 3 years whilst the alleged deficiencies in its design and construction were the subject of extensive investigation by a team of experts and contractors. In the early part of 2005, it was completely demolished. It was never lived in. It has not been rebuilt.
- Mr McGlinn was, until very recently, the co-owner of The Body Shop group of companies, when he sold his shares for in excess of £100 million. At times during the unhappy story of Maison d'Or, Mr McGlinn's wealth has resulted in events and decisions which would not even have been contemplated by employers of more modest means. As he agreed in cross-examination, his wealth allowed him to take legal and financial risks which others could simply not afford to contemplate. Notwithstanding that, there can be no doubt that, contrary to what might be inferred from the Defendants' submissions, Mr McGlinn was just as entitled as any other employer to a proper and professional service from those that he engaged at considerable cost - to design and build Maison d'Or. This action centres on his allegations that he did not get such a service from the four Defendants.
- It is at the heart of Mr McGlinn's case that Maison d'Or was so badly designed, and so badly built, that he was entitled to demolish it and start again. His claim is for damages for breach of contract/negligence against those that he says are responsible: the building contractors, Waltham Contractors Ltd ("Waltham"); the architects, Huw Thomas Associates ("HTA"); the structural, mechanical and electrical engineers, DJ Hartigan ("DJH"); and the quantity surveyors and so-called Project Managers, Wilson Large Associates ("WL"). Mr McGlinn's primary case on damages is put by reference to the actual cost of demolition and the estimated cost of rebuilding the whole house, in a total sum calculated (by the end of the trial) at £3,649,481.34. The alternative case is put by reference to the estimated costs of repairing the individual elements which are said to be defective, producing a final figure of £2,487,246.29. There are also disputes concerning an alleged overpayment of HTA's fees and outstanding fees said to be due to DJH.
- Although they would doubtless have taken centre-stage at the hearing, Waltham played no part whatsoever during the seven week trial, because they are in administration. Some of their former employees might have given evidence on behalf of HTA and DJH, but in the event they were not called upon to do so. For completeness, I should also note that Mr McGlinn has a separate claim concerning the over-valuation of the works which Waltham carried out. As a result of their absence from the proceedings, that over-valuation claim is pursued against WL and DJH only. That claim is due to be heard later this year, and thus forms no part of this Judgment.
- For the reasons which are set out below, I consider that, perhaps unusually in a defects case, the events before and during the construction of Maison d'Or are at least of some relevance to the allegations which are now made. Thus, following some general observations on the evidence at Section B below, I set out in Section C some of the key events in the chronology and at, Section D, I summarise the unsatisfactory nature (and almost non-existent records) of the contractual relationships between the parties. Then at Sections E and F, I consider the terms of the contract between Mr McGlinn and HTA, and analyse each of the breaches of contract/particulars of negligence alleged against HTA in the Scott Schedule. At Sections G and H I carry out the same, shorter, exercise in respect of DJH, and, at Sections I and J, there is a similar exercise in respect of the specific allegations against WL. At Section K, I consider the relevant principles concerning causation and the assessment of damages, identify the particular issues that arise in this case, and make a series of general findings on those issues. Thereafter, at Sections L, M and N I then apply those general findings in an assessment of the quantum of the damages recoverable, respectively, against HTA, DJH and WL. At Sections O and P I deal with the particular disputes that have arisen in respect of the fees payable to HTA and DJH. At Section Q, I set out a short summary of my conclusions.
- Before embarking on an examination of the detail, I should, at the outset, express my gratitude to counsel, solicitors and experts involved in the hearing of this trial. One of my distinguished predecessors in the Technology and Construction Court, His Honour Judge Newey QC[1], often remarked that he had only ever been obliged to complete one full trial on a Scott Schedule, and even that had been due to the incompetence of counsel. My experience in this Scott Schedule case has been entirely different. A large amount of material, and a host of detailed technical points, was dealt with in what I regard as an exemplary fashion. A tight timetable was produced, agreed, and then adhered to. I am extremely grateful to all those involved for their assistance.
B. GENERAL OBSERVATIONS ON THE EVIDENCE
B1 Factual Evidence
- The majority of the factual evidence was adduced on behalf of the Claimant. In addition to Mr McGlinn, I heard evidence from Mr Terence Disdale and Mr James Berryman of Terence Disdale Design ("TDD"), who played an important role in the design of the interiors and finishes of Maison d'Or; Mr Hardcastle and Mr Ellis of Centurion Management Services Ltd ("Centurion"), who managed Mr McGlinn's affairs on Jersey; Mr Mark Tanner, who was engaged by Mr McGlinn towards the end of the building works to try and improve what Mr McGlinn saw as serious deficiencies in the performance of Waltham; and Mr Martin Dobbs, Mr Anthony Holt and Mr Eric Sey, all of Charter Architects, who were appointed by Mr McGlinn to inspect Maison d'Or after the departure of Waltham from site and whose investigations form the basis of the Scott Schedule. In addition, I heard evidence from Mr Martin Holmes, the managing director of Camerons, the contractors who carried out a large part of the investigative and so-called enabling work, and Mr Richard Sugg of E.C. Harris, the Quantity Surveyor who produced costings of the repair and rebuild options being considered by Mr McGlinn in 2004-2005. There was also evidence from Fiona Diamond, of TDD, confined to a narrow issue concerning the cost of, and separate claim for, furniture storage.
- Although HTA had originally indicated that they relied on the statements of four different witnesses, they eventually chose to rely on just the two statements from Mr Carl Thornton, the architectural technologist who was chiefly responsible for the day-to-day running of the project on behalf of HTA. I found him to be an honest and straightforward witness, although I consider that he was not senior enough within HTA to have been given, as he was, almost complete responsibility for the day-to-day running of this project on their behalf. Two of the witnesses who were not eventually called by HTA, namely Mr Hiscock and Mr Prinn were, respectively, the managing director and the contract manager of Waltham. I have discounted their statements completely, save where particular points from those statements were put to Mr McGlinn during his cross-examination and accepted by him as being true and accurate.
- The other witness who was not in the event called by HTA to give evidence was Mr Huw Thomas himself. I have ignored the contents of both of his witness statements since they were not, in the result, relied on by HTA, and not the subject of an application by another party under CPR 32.5(5). On behalf of the Claimant, Mr Williamson QC submits that I should draw a number of adverse inferences from the fact that Mr Thomas was clearly available to give evidence, and had relevant evidence to give, but was not in the event called: see Wisniewski v Central Manchester Health Authority [1998] PIQR 324 and Jaffray v Society of Lloyds [2002] EWCA Civ 1101.
- In my judgment, some but by no means all - of what Mr Thomas would have said was covered in the evidence of Mr Thornton. Other elements of his evidence were rendered unnecessary by Mr McGlinn's acceptance, during his cross-examination, of some of the factual matters put to him by Mr Bartlett QC. However, I accept Mr Williamson QC's submission that there were a number of important matters where the absence of any evidence from Mr Thomas must lead to findings or inferences which are contrary to HTA's case. Wherever these findings or inferences are the consequence of the failure to call Mr Thomas, I have endeavoured to identify that plainly in the relevant paragraph of this Judgment.
- I also accept Mr Williamson QC's submission that the court can have regard to the statements of Mr Thomas, not for the purposes of establishing the truth or otherwise of any particular matter or fact there addressed, but simply to satisfy itself as to what matters Mr Thomas would have given evidence about had he been called. This is not unimportant because, at the outset of HTA's case, Mr Williamson QC had indicated in writing those matters upon which he would cross-examine Mr Thomas and those matters which he would address via Mr Thornton. The decision not to call Mr Thomas was not announced until after Mr Thornton had completed his evidence. Thus the fact that Mr Thornton was not cross-examined on an issue, because Mr Williamson QC intended (and had announced that intention) to cross-examine Mr Thomas on that topic instead, may be of some relevance in my consideration of the HTA evidence. It is plainly relevant to any complaint by HTA that Mr Thornton was not cross-examined on particular issues.
- On behalf of DJH, the factual evidence was limited to Mr Ellerington. I have therefore discounted the statement of Mr Hartigan, who was not called to give evidence. Mr Whitting submitted that this decision was the result of the various agreements between the experts, and, in particular, the extensive agreement on the structural matters in respect of which Mr Hartigan would otherwise have given evidence. I accept that submission, and I have drawn no adverse inferences as a result of the absence of any oral evidence from Mr Hartigan. Indeed, as will be apparent from Section H below, I consider all the remaining issues on structural matters now turn either on argument or expert evidence. Factual evidence is irrelevant.
- On behalf of Wilson Large, Mr Reese QC chose to call no factual evidence. Mr Richards was, in truth, the only person at Wilson Large who was involved in this project and therefore the only person who could have given any relevant evidence. In general terms, I accept the proposition that, because the case against WL is pleaded on a contingent basis only (being dependent upon HTA's pleaded references to WL in their responses to the Scott Schedule and the failure of Mr McGlinn's case against HTA on those Items) HTA's decision not to call Mr Thomas explains, at least in large part, WL's consequential decision not to call Mr Richards. There were one or two points on which his evidence would have been of some assistance to me, but I decline to draw any adverse inferences against WL from the decision not to call Mr Richards.
B2 Mr McGlinn Himself
- Mr McGlinn was something of a controversial figure. He was certainly described in colourful terms by other witnesses, even by those who were called to give evidence on his behalf. Thus, Mr Dobbs of Charter agreed that he was a demanding client who was "forthright in his opinions
he was blunt and he said what he wanted". Mr Tanner said it was not unfair to say that people did not find Mr McGlinn the easiest person to get along with and that it was well known that he used "fruity language". Mr Tanner also said of the Claimant that "he knows what he likes" and that he believed he was a man who could take a strong dislike to people. Mr Sugg of E. C. Harris called him "an exacting man".
- In my judgment, these descriptions of Mr McGlinn were accurate. During his cross-examination, he was certainly forthright; he was relatively quick to anger; and he plainly took the view, before, during and after the work by Waltham, that since he was paying the bills, he could ask for what he wanted when he liked. However, whilst these character traits may explain why there were particular disagreements and difficulties on the Maison d'Or project, and why there were so many changes as the work progressed (which may, in turn, explain the genesis of at least some of the items now alleged to be defects) it does not seem to me that they excuse, or could be used to explain, defaults in design and workmanship.
- The other important point to make about Mr McGlinn's oral evidence was that it was based on what he freely confessed was a poor memory. It was clear to me that he had very little recollection of many of the most important events during the design and construction phases of the work. He kept no records himself; indeed, as he accepted during cross-examination, there was not a single document in any of the bundles which he had produced, written or signed. This created obvious difficulties for certain aspects of his case, particularly the oft-repeated theme that, at the outset of the project, he had asked for particular design features and standards which had subsequently not been provided. His poor memory made it very difficult for Mr McGlinn to counter the evidence of other witnesses who had much better recollections of particular meetings and other significant events between 1997 and 2001.
- However, it would be unfair to be too critical of Mr McGlinn's failure to keep records in this case. Precisely the same criticism can be made of HTA: there was a complete absence of minutes, notes or notebooks kept by HTA during the currency of this major project. Since they were the architects on this major project, the absence of any records of HTA's periodic inspections is a matter of particular concern. DJH also failed to keep the sort of detailed records that I would have expected to see.
B3 The Expert Evidence
- There were ten experts in total. In many ways, the most important were the two architectural experts: Mr Jowett, who gave evidence on behalf of Mr McGlinn, and Mr Salisbury who gave evidence on behalf of HTA. In respect of the mechanical and electrical matters, Mr McGlinn's expert Mr Moseby, and DJH's M&E expert, Mr Sworder, were able to reach such a large measure of agreement that it was unnecessary for them to give oral evidence at all. In respect of structural engineering matters, the relevant experts were Mr Ross-Gower for Mr McGlinn, and Mr Dibb-Fuller for DJH. As a result of their agreements, their oral evidence was very limited. In respect of quantum, Mr McGlinn's expert was Mr Fitch. HTA's quantum expert was Mr Linnett and DJH's quantum expert was Mr Pontin. WL had no need for any expert evidence save in respect of quantum, on which their expert witness was Mr Pope.
- This is not a case where I considered that any of the experts were doing anything other than endeavouring to do their best to assist the court. I rather regret that both the architectural experts (and at least one other expert) were subjected to some lines of questioning which appeared to be aimed at demonstrating the contrary: this was not perhaps an effective use of the parties' limited trial time. Save for the particular points I make about the expert evidence in Sections F, H and J below, I could not say that, in any discipline, I preferred the generality of the evidence of one expert over the evidence of another. Accordingly, I have considered and weighed up the expert evidence on an item-by-item basis.
B4 The Evidence Of The Defects
B4.1 The Problem
- One further unusual feature of this case, which created a certain amount of difficulty throughout the trial, was the nature, extent and quality of the evidence of the defects themselves. In relation to some items within the Scott Schedule, the evidence with which I have been presented as to the existence of defective work, or damage caused thereby, was sporadic and, in certain instances, controversial.
B4.2 The House Itself
- The first problem is that I am being asked to judge the nature and extent of defects which are said to have existed in a house which is no longer there. I did not see Maison d'Or at any time before it was demolished. When Mr McGlinn's decision to demolish was first made plain by the Claimant's solicitors, the solicitors acting for HTA wrote to them on 19 October 2004 to say:
"Whether it be Judge or arbitrator (or arbitrators), any tribunal that hears your client's claims will be at a significant disadvantage in making findings of fact about the quality and standard of the design and workmanship at the property, without the opportunity for a site visit. Your timetable appears to contemplate demolition prior to the issue of court proceedings (or reference to arbitration). This would mean that it would be impossible for there to be a worthwhile site visit
"
- This point looked to have been taken on board because, at a meeting on 2 December 2004, the Claimant's solicitor is noted to have confirmed the intention:
"
to file a claim with the courts by mid January and, assuming an early appointment of a Judge, to request the Judge's attendance to view the site before the end of January."
In fact, the claim form was not issued in January 2005. The house was demolished between February and April 2005, and the claim form was issued thereafter in May 2005. The case was assigned to me at the same time. Accordingly, by the time this case was in my list, it was impossible for me to view Maison d'Or. Contrary to at least one suggestion by HTA in cross-examination, I am quite sure that this was not the result of a deliberate policy on the part of the Claimant's advisors. However, it means that I am more than usually dependent on the quality of the secondary evidence of what was there.
B4.3 Inspections
- I do not suggest for a moment that, prior to the commencement of the court proceedings, the Defendants were not kept fully informed as to the state of play at the property.[2] On the contrary, I consider that the Claimant's solicitors were assiduous in their dealings with the solicitors acting for the defendants, and always informed them of opening up and other works at Maison d'Or prior to its demolition. Indeed, on at least one occasion, it was HTA who did not take up the offer of a joint inspection. Thus, my concern about the timing of the demolition of the property does not extend to a concern that the Defendants did not have a reasonable opportunity to make proper inspection. For the avoidance of doubt, I find that they were given proper opportunities to inspect.
- Accordingly, I reject the point at paragraph 32.2 of HTA's defence, to the effect that the demolition of Maison d'Or has prevented proper consideration of the defects by the parties and/or their experts. The problems, if there are any, have been for me alone, because I have had no similar opportunity to inspect. I am therefore entirely dependent upon what was produced as a result of those inspections, namely the reports, the photographs and the videos.
B4.4 Photographs
- The photographs were an important source of secondary evidence. Originally they were somewhat scattered throughout the expert's reports, the pleadings, and the oral (but not written) opening on behalf of Mr McGlinn. During the trial, an almost bewildering array of further collections of photographs was produced, in at least another six files. The absence of any exercise collating all these different photographs by reference to the individual Items in the Scott Schedule created a certain amount of difficulty, which the belated production of Bundle Q2 only partly alleviated. There have also been problems with the quality of some of the photographs relied on. For example, it could be said that the Claimant's own case about the replacement of 10,000 roof tiles (Item 4.1.1 in the Scott Schedule) turned on three photographs taken in March 2002, two of which are of poor quality. This is a point that I deal with in greater detail at Section F2.28 below.
B4.5 Videos/DVDs
- There are seven videos/dvds of this property, ranging in date from January 2002 to September 2006. I have found these videos/dvds to be of assistance in forming a general impression of the property, both at the time that Waltham left site, and thereafter. Unfortunately, not even this exercise was free from controversy because HTA's architectural expert, Mr Salisbury, produced a synopsis of some of the videos, only for Mr Jowett to complain that he did not accept that synopsis and to produce his own, often very different, summary of the same video. In the round, therefore, the contents of the videos/dvds have been of less help to me than ought to have been the case.
B4.6 The Lack of Evidence of Damage
- One of the features of the trial was the cross-examination concerning the evidence (or lack of it) of damage allegedly caused by the defects. I was struck by the relative paucity of evidence of physical damage. This is really a reflection of the point that I have made in Section C14 below, namely that this was not a case where the extensive investigations into the building problems were triggered by actual damage, such as cracks or leaks; here, the investigations resulted from a general level of dissatisfaction with Maison d'Or on the part of Mr McGlinn and which, when they were first carried out, led to the discovery of further defects. The consequence of this was that the evidence of damage (as opposed to defects) could fairly be described as thin; although, as I explain below, there was some limited evidence of water ingress and the like, in general terms, it seems clear that this was if nothing else - a generally sound and secure structure.
B4.7 Summary
- In summary, therefore, it has not always been easy for me to appreciate the nature, scope and extent of the particular defects complained of in the Scott Schedule, or to see them in the context of the completed building. I was never able to see Maison d'Or itself; the videos/dvds are of some help, but there is a debate about what precise information I should take from any particular capture from the videos/dvds. The photographs have not been satisfactorily collated and are scattered throughout a large number of files. I am conscious, therefore, that I am deciding the Items in the Scott Schedule against a background of secondary evidence which is less helpful than should perhaps have been the case.
C. CHRONOLOGY
C1 The Site
- Mr McGlinn became a resident in Jersey in about 1996. At that time, he owned a property in St Aubin, a small town with a harbour on the coast of Jersey opposite St Helier. Unable to get planning permission for the works that he proposed at that house, Mr McGlinn looked round for another property in the same area. Because of his love of the sea, and the amount of time that he spent on his boats, Mr McGlinn was anxious to remain in St Aubin, where the properties on the hill above the harbour have wonderful views back across the moored boats and the bay.
- In late 1997, Mr McGlinn found and bought a property on the western slope above St Aubin known as Villa Gardena. He intended to demolish this small existing property on the site and to build a much larger house there. This was the site of what was to become Maison d'Or. The site was part way up the hill, and faced almost exactly due east. It looked out across, but was set well back from, the harbour and the sea. There were other houses below and around the site, as well as a large number of mature trees and shrubs. It was also surrounded, on the south, west and north sides, by the rising slope of the ridge beyond.
- It was the Claimant's case in the litigation that the site was severely exposed and in a hostile marine environment, and that due consideration should have been (but was not) taken of these matters in HTA's design of Maison d'Or and the specification of the relevant materials. HTA responded by reference to the criteria in the relevant British Standards, and argued that this site could not be described as "severely exposed" or even "exposed". The particular factors which they relied on in support of this argument included the specification of cavity walls and render to keep out the weather, the surrounding slope on three sides, and the trees and shrubs.
- This debate is dealt with in detail in Section F2.4 below. However, I should make clear at the outset that I have concluded that Maison d'Or was not an exposed site for design and specification purposes. I consider that this aspect of the case was exaggerated, first by Charter (who raised a number of criticisms based on their view of the exposure of the site but failed to do any exposure calculation at all) and later by Mr Jowett, who, when assessing the exposure rating of the site, appeared to ignore the design of the walls, the contours of the ground, and the proximity of the surrounding buildings, trees and shrubs. I find that this was not an exposed site in either the technical or the impressionistic sense of the word.
C2 The Professional Team
- The evidence was that HTA had a very good reputation on Jersey as competent and sympathetic architects, with a good relationship with the Planning Department. Mr Hardcastle, of Centurion recommended HTA to Mr McGlinn. In consequence, Mr McGlinn first contacted HTA whilst he was still in the process of buying the Maison d'Or site. He met Mr Thomas for the first time on 8 August 1997 and apparently made clear to him his desire to create a new dwelling on the site in what he described as a French Chateau style. Some RIBA documentation concerned with fees was apparently given to him, although Mr McGlinn could remember neither the meeting nor the fees booklet. It was suggested to Mr McGlinn in cross-examination that, at the meeting, Mr Thomas showed him a formal RIBA agreement, but that he said he was not interested in such things and threw it into the bin. Mr McGlinn rejected that suggestion emphatically. A few days later, on 12th August Mr Thomas sent him some pages (concerned with Work Stages and fees) taken from the RIBA Architect's Appointment document (known as the "Blue Book"). There was never any formal contract between Mr McGlinn and HTA and the precise terms of their engagement are now the subject of fierce debate. I deal with those issues in Section E below.
- One of the many disputes between HTA and Mr McGlinn as to the terms of HTA's retainer is the extent, if at all, to which HTA were responsible for the design of the interiors and finishes of the property. Whatever the scope of HTA's original obligations in this regard, there is no doubt that, some time in 1998, TDD were asked by Mr McGlinn to carry out a design function in respect of the interiors and finishes at Maison d'Or. Although it may have been Mr McGlinn's original intention that TDD would simply provide suggestions as to interior designs and finishings (because, as Mr McGlinn put it, "Mr Disdale knows my taste, my likes and dislikes") it is clear that, in reality, they played an increasingly important design role, issuing instructions on Mr McGlinn's behalf and making design/specification decisions in respect of what Mr Disdale agreed was 'every room in the new property'. There was no written contract of any sort between Mr McGlinn and Mr Disdale: the latter commented that this was a "very unusual" engagement and that his duties "were not defined at all".
- Rather less contentious was the engagement by Mr McGlinn of DJH to act as structural and mechanical and electrical engineers. They were engaged by Mr McGlinn in about May of 1998. There is no dispute that their engagement on each aspect of the project incorporated the relevant set of ACE Conditions of Engagement, 1995.
- Slightly earlier in 1998, Mr McGlinn had engaged WL to act as quantity surveyors. Again, there was no formal agreement of any sort recording the services that they were to provide. Later, as we shall see, the description of WL's role was altered when it was announced by Centurion that WL had also been appointed as Project Managers in January 1999. Again, however, the precise nature and scope of their new obligations (if any) were not set out in writing, and therefore remain the subject of major controversy.
C3 The Planning Application
- It appears that HTA began work on the design of Maison d'Or in the summer of 1997. Mr Thomas produced a series of watercolours about that time which showed the front elevation of the proposed house. The watercolours compare very closely with the photographs of the completed building taken four years later. Although there are some French influences, the house was, in truth, an attractive Arts and Crafts domestic building, not dissimilar to the late 19th century work of C.H.Voysey and the Scottish architect Robert Lorimer, whose work was and is sometimes referred to (not altogether kindly) as 'Scots Baronial'.
- HTA carried out a considerable amount of work in producing the necessary drawings to accompany the planning application. The proposed scheme involved replacing the existing small house with the much larger Maison d'Or. The application for planning permission was made on 30 April 1998. Planning permission was granted on 6 July 1998. Mr Jowett said that, in his view, "Mr Thomas did a good job" in obtaining planning permission for Maison d'Or.
C4 The Quality Standards To Be Achieved
- One of the features of this case is the absence of any written record of what Mr McGlinn wanted at the outset and, in particular, what standard of finish he required at Maison d'Or. As we shall see, when, in 2002 and thereafter, Mr McGlinn was expressing his dissatisfaction with Maison d'Or to his new advisers, a point he repeatedly made was that it had not been designed or built in accordance with the exceptionally high standards that he had asked for. This, inevitably, led to numerous disputes as to what precisely it was that he had required, given the absence of any written record or clear design brief.
- Mr Thomas did not give evidence. As to the contemporaneous documents which he produced that might be relevant to this question, there are the watercolours and design drawings that he produced and the 'Design Statement' dated April 1998, for which he was also responsible. That later document described the philosophy of the proposed new building as follows:
"Any new building on this prominent site provides an opportunity to improve the silhouette of St Aubins against the wooded background.
The proposed replacement house is deliberately broken up into a variety of rooflines which reflect the character of St Aubins. The style is also similar to the hotel, in an equally prominent position, to the south.
The new building is positioned further away from the nearest terraced buildings and is also approximately one metre lower than the existing house. A comparative sketch showing the different levels between existing and proposed is included in this report.
The proposed traditional built form is approximately 25% larger than the existing 1960's house. The remaining area is subterranean and includes the car parking.
On Market Hill, the existing rendered cottage and garage are to be demolished. The stone wall is to be extended over this opening, creating a continuous stone wall with a 'Jersey' archway in the middle. This forms the access to garages and house ...
Construction
The walls are rendered with stone quoins, arches, lintels and sills. The roof is to be natural slate and windows painted hardwood. The windows in the wall facing Market Hill are to be constructed with stone mullions
"
- Mr McGlinn, on the other hand, did give evidence and relied on a number of disparate conversations with Mr Thomas to demonstrate that he had made plain to him the exceptionally high standards he said he instructed. The most important was the visit to his boat. There was no dispute that, at some time in the late summer of 1997, Mr McGlinn invited Mr Thomas and his wife to his yacht, Tigre d'Or, which was then moored in the Mediterranean off the French coast. It was Mr McGlinn's case that the principal purpose of this visit was to explain to Mr Thomas that he required the same standard of finish on the yacht in the new house in Jersey: that Mr Thomas would, in his words, "see the quality of it". This became known in the contemporaneous papers and during the trial as "the boat standard", and, to all intents and purposes, it denoted Mr McGlinn's requirement for something like a perfect standard for all the joinery and other interior finishes.
- Mr McGlinn said, largely as a result of this visit to Tigre d'Or, that he believed that he had made it plain to Mr Thomas that he wanted the boat standard throughout Maison d'Or. That was his recollection at the much later meeting on 17th May 2002, when he said to his new advisers that he had originally wanted the boat standard but that the house had not been built to that standard.
- On a slightly different point, there was no dispute that, at the outset, Mr McGlinn had made it clear to Mr Thomas that he wanted natural materials, such as wood, stone and slate, to be used in the building of Maison d'Or. He said that he wanted an aged appearance, and for the finished house to look as if it had been there for a long time. This went as far as an express suggestion by Mr McGlinn that algae should be encouraged to grow on the stonework to give it an aged appearance, and that this could be achieved by putting yoghurt on the stonework.
- In connection generally with the quality standards and other requirements demanded by Mr McGlinn, I should mention two other documents. First, there are the Bills of Approximate Quantities, prepared by WL in October 1998. These Bills listed, at Appendix 1A, HTA and DJH's drawings on which both the tender and the contract were to be based. Bills 1-4 were apparently prepared by WL and there is no evidence that HTA or DJH had any direct input into their contents. The Bills contained a number of provisions dealing with the standard or quality of the work to be performed by the contractor. They included:
a) A reference in Bill 1, Clause A20/110, to the JCT Standard Form of Building Contract 1998 edition, which, at clause 2.1 provides:
"The Contractor shall upon and subject to the Conditions carry out and complete the Works in compliance with the Contract Documents, using materials and workmanship of the quality and standards therein specified, provided that where and to the extent that approval of the quality of the materials or the standards of workmanship is a matter for the opinion of the Architect such quality and standard shall be to the reasonable satisfaction of the Architect."
b) Bill 1, Clause A33/110 which provided:
"GOOD PRACTICE: Where and to the extent that the materials products and workmanship are not fully detailed or specified they are to be
-Of a standard appropriate to the Works and suitable for the purposes stated in or reasonably to be inferred from the project documents, and
In accordance with good building practice."
c) A little further on in the same Bill, under the heading of 'GENERAL QUALITY OF WORKMANSHIP' there was a reference to British Standard 8000. That reference provided as follows:
"BS8000: BASIC WORKMANSHIP:
Where compliance with BS800 is specified, this is only to the extent that the recommendations therein define the quality of the finished works.
Where BS8000 gives recommendations on particular working methods or other matters which are properly within the province and responsibility of the Contractor compliance therewith will be deemed to be a matter of general industry good practice and not a specific requirement of the CA under the Contract.
If there is any conflict or discrepancy between the recommendations of BS8000 on the one hand and the project documents on the other, the latter will prevail."
- Secondly, there are the Building Regulations Notes dated March 23 1999. These were prepared by HTA. They ran to nine pages and contained a series of detailed provisions. For example, at paragraph 2.1.1, the finish to the external walls was specified as:
"External masonry paints: Keim Mineral Paints Ltd ... all in strict accordance with the manufacturer's recommendations."
A little later in the same document, at paragraph 2.1.2, the render was specified as: "18 mm 2 coat sand lime cement render". This document is perhaps as close as HTA ever got to producing a detailed specification for the proposed works. There was no evidence as to who received copies of these Notes, or when.
C5 The Sandbanks Property
- At about the same time that HTA were working on the planning application in respect of Maison d'Or, Mr McGlinn asked them to carry out a similar exercise in respect of his property at Sandbanks, in Poole, Dorset. For a while, the two projects ran in parallel. On the Sandbanks property, HTA obtained planning permission for a rather different kind of building, with more steel and glass. It was described during the trial as a contemporary, Frank Lloyd Wright house. However, on the Sandbanks property, HTA's retainer was not extended beyond the obtaining of planning permission. The detailing and construction phases were taken over by The Charter Partnership of Bournemouth. They were, much later, to become closely involved with Maison d'Or.
- The simultaneous progression of the Sandbanks project is relevant to this case because it was the subject matter of a major falling-out between Mr McGlinn and Mr Thomas (see Section C8 below). It is also relevant because, when Charter were engaged to oversee the detailing and construction of the Sandbanks property, it appears that, from the outset, they were told in clear terms by Mr McGlinn that he required the boat standard of finish. Mr McGlinn said that he made that clear; that was accepted by Mr Dobbs of Charter. It appears that, in consequence of this instruction, the Charter Partnership advised Mr McGlinn that such a standard would come at a significant financial premium, and that specialist contractors, from outside the UK construction industry and used to working on boat-fitting contracts, would be required to achieve such a standard.
- In his cross-examination, Mr Dobbs of Charter explained the differences between the fitting out of a boat and fitting out works on a construction site. He said:
"
I think the conditions within which the joinery is applied and the sub-structure to which the joinery is applied is very important, and it is in a different environment when it is being constructed in a ship yard to on a building site.
Q: So the environment of the construction site is one of the factors that makes the difference?
A: It does have an impact on it, yes.
Q: Both because of the substrate and because of just the very fact it is a construction site, it is damp, and there are people going around, and machinery and other trades working, and all that sort of thing.
A: It does have additional problems.
Q: Because of the things I have been mentioning?
A: Yes."
C6 The Tender Process
- On 14 October 1998, WL sent out a set of tender enquiry documents to seven contractors, including Waltham. The documents that were sent out included the Bills of Approximate Quantities, the Architect's tender drawings and the Structural Engineer's tender drawings. The Bills were not in more detailed form because of time constraints; Mr McGlinn accepted in cross-examination that his instructions to WL were to proceed quickly, and that he therefore accepted the preparation of the Bills in this form.
- As I have indicated, the Approximate Bills were prepared by WL, and there was nothing to suggest that any of the other professionals had any input into their preparation. Similarly, the architect's drawings were prepared by HTA and the structural engineer's drawings were prepared by DJH. Again there was nothing to suggest that any other professional was involved in the production of these documents.
- At the time that the tender enquiry documents were sent out, the budget figure for the works was £1.5 million. Mr McGlinn said this figure had come from HTA or WL. However, at the time that the tenders were sought, WL had advised Mr McGlinn in writing that the estimated cost of the project was likely to be in the region of £1.9 million. That is the figure set out in the WL cost analysis of 23 October 1998 which was sent to Mr McGlinn.
- WL were right to be cautious. When the tenders were received on 13 November, only three contractors had provided a figure. Amey Building Ltd of Penarth had estimated £2,788,045, and JF Marrett & Son of Jersey had estimated £2,497,250. The lowest tender figure was provided by Waltham in the sum of £2,214,841. Their tender was sent under cover of a letter dated 13 November 1998 which emphasised "the congested nature of the site" and made clear that, amongst other alterations to the proposed works, Waltham had priced for "16" x 10" Spanish slates (French slates have not been used on the island for several years)". The Waltham tender indicated a contract period of 64 weeks, from 7 December 1998 onwards.
- According to Mr McGlinn, Mr Richards of WL spoke to him, on the telephone, and said that, if the budget figure of £1.5 million was to be retained, signification reductions were going to be necessary in the scope of the works. Mr McGlinn said: "I asked him to look at costs and to see if he could get them down". It is clear from the evidence that everyone understood that reducing the Waltham tender sum to the budget figure of £1.5 million would be a very large reduction.
- HTA, DJH and WL met on 19 November to discuss ways in which cost savings could be made to reduce the tender sum back towards the budget figure. Brief minutes were taken of the meeting by DJH. A number of possibilities were explored. In his letter to Mr McGlinn of 20 November 1998, Mr Richards said that none of these proposed changes "alter the original design of the house" although, later in the same letter, he said that there would indeed be "some design changes" as a result of this exercise. The proposed reductions (ten in all) were then set out in a tender report which Mr Richards sent to Mr McGlinn the following day (21 November). This identified over £548,000 odd worth of savings, getting the total cost figure down to £1.66 million. This included the omission of the kitchen and utility fittings, significant savings in the mechanical and electrical services and other important reductions in both the exterior and interior elements of the proposed building which are directly relevant to some of the most important allegations in the Scott Schedule.
C7 Particular Reductions In Workscope
- The reductions to the scope of the works that were made during late 1998/ early 1999 are relevant in two ways. First, the Defendants say that the mere fact that they were instructed to, and did, make significant reductions to the scope of the work in order to get Waltham's figure down to the budget figure of £1.5 million was entirely inconsistent with Mr McGlinn's case now that he had insisted from the outset on the highest possible specification and standards of finish. I deal with this point at Section E3.3 below.
- Secondly, some of the reductions are directly relevant to the specific allegations now made by Mr McGlinn because, within the Scott Schedule, there are a number of items where the suggestion is that the Defendants were negligent and/or in breach of contract in allowing particular reductions to be made from the original scope of work. Although it is unnecessary, at this stage, to consider the specific allegations concerning the reductions that were made, it is instructive to focus on two which loomed large during the trial. Those are the changes from granite facings to Haddonstone facings, and, internally, the change from oak to idigbo.
C7.1 Granite To Haddonstone
- As noted in Section C4 above, the original design concept (as set out in the Design Statement) envisaged rendered walls with stone copings, lintels and quoins. However, at some point prior to the preparation of the Bills, the external stonework (which was largely decorative) was apparently replaced with blue granite. Following the receipt of the tenders, one of the proposed reductions was the replacement of that granite with reconstituted stone, which was, therefore, a move back to the original concept. It was referred to in the minutes of the meeting on 19 November as the removal of "all areas of natural stone and replace with stucco and recon stone". In the report of 21 November 1998, faxed by Mr Richards to Mr McGlinn, this proposed reduction read as follows:
"External walls (£52,000) omit granite add render quoins, stone sills and plinth (approximate quantities);"
This was clumsily worded. Of course, the proposed change from granite back to stone did not affect the render, which remained the same; what was proposed was replacing the granite facings and sills to facings and sills made of reconstituted stone.
- On 4 December 1998, the professional team, this time with Waltham, met to discuss the reductions. This meeting was minuted. Minute 1.3 reads:
"Elevations Haddonstone or similar reconstituted stone will be incorporated for plinths, copings, balustrades and sills."
Haddonstone are well-known manufacturers of reconstituted stone products of various kinds. There was evidence before me, which I accept, that Haddonstone is regularly used for prestige building projects, including the refurbishment of Grade I listed buildings. The minutes of this meeting were sent to Mr McGlinn and to Mr Hardcastle of Centurion. Mr McGlinn accepted that the minutes were sent to him and also accepted that he made no complaint (either then or subsequently) about this proposed change from granite to reconstituted stone.
- There was originally some dispute as to whether, at some stage in late 1998 or early 1999, Mr McGlinn saw a Haddonstone catalogue. However, although Mr McGlinn could not recall it specifically, he said that he thought he must have looked at such a document. On balance, I think it more likely than not that Mr McGlinn did see the Haddonstone catalogue which provided more details about their reconstituted stone product. Further, given that it was Mr Thornton's recollection that there was a meeting later in December attended by Mr McGlinn, Mr Thomas, Mr Thornton and Mr Disdale, at which the Haddonstone was generally approved, that seems the most likely occasion on which Mr McGlinn looked at the catalogue. It was suggested to Mr Thornton in cross-examination by Mr Reese QC that, by reference to other documents, this meeting was likely to have been on 14 December. Although there were no notes or minutes of this meeting, it seems to me that, again on the balance of probabilities, there was a further meeting on this date attended by Mr McGlinn at which, amongst other things, the Haddonstone that had been proposed and agreed by the professional team was accepted by Mr McGlinn.
- On 15 April 1999, Mr Richards of WL sent Mr Disdale of TDD a fax dealing with certain matters to be discussed at a design team meeting the following day, which Mr Disdale was due to attend. One of the items noted in the fax was:
"Ian wants you to confirm acceptance of the colour of stonework."
At the meeting, which was attended by HTA, DJH, WL, TDD and Waltham, the following was noted under "external finishes":
"(2) Haddonstone Portland 01 sample approved for all reconstructed stonework.
(3) Additional stonework to be added around attic roof in place of timber.
(4) Haddonstone traditional vertical balustrading to be used to balconies where shown."
- Mr Disdale said that his role "was to aesthetically advise him [Mr McGlinn] on what suitable materials to use on the building". He confirmed that, at this meeting, he approved the colour/appearance of the particular type of Haddonstone that had been proposed. In answer to questions from Mr Reese QC, Mr Thornton said that these minutes showed Mr Disdale's requirements in respect of matters which he (Mr Thornton) was aware Mr McGlinn was going to look to Mr Disdale to specify. As he put it: "the instructions came from Terence Disdale".
- In consequence of these events, I find that the professional team and Waltham worked on the basis that a particular type of Haddonstone had been approved by Mr McGlinn and Mr Disdale for use (instead of granite) for the quoins, copings, cills and decorative beading in the external walls of Maison d'Or. That is how it was subsequently constructed. In cross-examination, Mr McGlinn thought it possible that, once the Haddonstone had been erected, his only comment was that it looked too neat and new. That would have been consistent with his desire for an aged appearance: see paragraph 43 above. That was Mr Thornton's clear recollection. Mr McGlinn accepted that, at no time prior to the departure of Waltham did he raise any complaint about, or criticism of, the Haddonstone.
C7.2 Oak To Idigbo
- The minutes of the meeting on 19 November 1998 do not refer to this proposal. However, the tender report of 21 November, sent by Mr Richards of WL to Mr McGlinn, contained this proposal:
"5 Windows/doors (£10,000) change Oak to Idigbo (estimate)
7 Internal doors (£20,000) change panel doors to flush, Oak to Idigbo (estimate)."
It is not clear who first suggested this change: on the basis of the documents, it seems more likely than not that it was Mr Richards. However, it appears that the professional team and Waltham operated on the basis that, in the absence of any objection from Mr McGlinn or Mr Disdale, this proposal would also be activated.
- It does not appear that the change to idigbo was discussed at the meeting on 4 December (paragraph 58 above). It appears that, at some stage in late 1998 or early 1999, and very possibly at the meeting on 14 December (paragraph 59 above), Waltham brought a sample of idigbo to HTA's offices and Mr McGlinn saw it and approved it. In cross-examination Mr McGlinn accepted that he had seen the sample of idigbo and that, in the absence of any suggestion from anyone that there would be a problem with the use of idigbo, he approved it. He said that someone (he thought Mr Richards) said that idigbo was as good as oak.
- At the meeting on 16 April 1999 (paragraphs 60 - 61 above), it seems that the idigbo was approved by all those present. Mr Disdale confirmed in his cross-examination that he had approved the idigbo on that occasion. Minute 11.1 of the meeting read as follows:
"Windows/doors to be idigbo.
Sampled window to be provided with spare timber to try alternative finishes in paint for shutters and/or windows and doors."
This item was to be actioned by HTA, Waltham and Mr Disdale. Mr McGlinn accepted in cross-examination that it was his understanding that Mr Disdale had specifically approved the appearance of the idigbo sample at this meeting. Again, Mr McGlinn accepted that at no time prior to the departure of Waltham had he made any criticism of the idigbo at Maison d'Or.
C8 The Altered Role Of Wilson Large
- Unfortunately, in December 1998, there was a major disagreement between Mr Thomas and Mr McGlinn concerning fees of about £8,000 claimed by Mr Thomas in respect of design work on the Sandbanks property. Mr McGlinn and Mr Thomas had an argument about these outstanding fees in a pub in St Aubin. This dispute had very serious consequences because Mr McGlinn decided that, not only would he not pay HTA's fees, but he would also not pay any of the consultants' outstanding fees in respect of both the Sandbanks property and Maison d'Or. He also expressed the intention to sack HTA from both projects. Eventually, however, he was persuaded out of this extreme stance by Mr Richards at WL and Mr Hardcastle at Centurion.
- As a result of Mr Richards' intervention, and a meeting that he had with Mr McGlinn in January 1999 at St Katherine's Dock, it seems that Mr McGlinn decided not to sack HTA after all. He subsequently made payment of the outstanding fees to all the consultants on both projects. However, he did not modify his hostile views of HTA. From this point on, he did not communicate with Mr Thomas at all for almost two years: as he put it, "I could not speak to the architect". When trying to understand how and why this project went so wrong, it is perhaps unnecessary to look further for at least one explanation of the subsequent events than the fact that the client and his architect did not speak for almost the entire period that the house was being detailed and constructed.
- It also appears that Mr McGlinn did not like being told what to do by Mr Hardcastle. The latter said in evidence that Mr McGlinn took umbrage at the advice he had given and that the two men never spoke again.
- The disagreement over fees between Mr Thomas and Mr McGlinn had another important consequence. Mr McGlinn was anxious to find somebody else who would effectively act as a go-between in the relationship between the client and the architect, and to deal with all the financial arrangements in respect of both projects. He asked Mr Richards to take on that role. According to Mr Hardcastle of Centurion, Mr McGlinn told him that Mr Richards would become the Project Manager, although Mr McGlinn denies saying that. Accordingly, on 29 January 1999, Centurion wrote to HTA, DJH and others, to say:
"Please be advised that Mike Richards of Wilson Large, chartered quantity surveyors, Wolvesey Palace, College Street, Winchester, SO23 9NB
has been appointed Project Manager for the development of Villa Gardena. Accordingly, may I ask you please to submit all future invoices directly to Mr Richards."
- Mr Hardcastle was clear that Mr McGlinn had told him that Mr Richards was going to be the Project Manager. However, Mr Hardcastle did not write to WL in those same terms and, like so much else in this case, WL dispute that they were appointed to act as Project Manager, at least in the usual sense of that expression. That is a dispute I deal with at Section I below. But, whatever the precise terms of WL's engagement as Project Manager, the fact remains that WL were solely responsible for administering all of the many financial arrangements arising out of the design and construction of Maison d'Or, including the identification of the amount to be paid to Waltham on an interim basis.
- The appointment of Mr Richards could have had an adverse effect on HTA, although, in the absence of any evidence from either Mr Thomas or Mr Richards, it is inappropriate for me to make any detailed findings on the point (see also paragraphs 254 and 764 below). Mr Thornton was too junior within HTA to be involved with contractual matters and Mr Thomas never put any concerns in writing.
- There was no signed contract between Mr McGlinn and WL to reflect this new role. Indeed, there were not even any written proposals from either side as to what this role might involve. Some time later, Mr Richards explained to Mr McGlinn's then solicitor that this was because Mr McGlinn "did not want to be bothered by a formal agreement".
C9 The Building Contract
- It seems that, on about 23 or 24 November, Mr McGlinn spoke to Mr Richards and consented to the work going ahead on the basis of the proposed reductions from Walthams' tender identified above. Mr McGlinn said that he was happy with the reduction of £548,000 (from the tender sum of £2.2 million odd) and was uninterested in how this had been achieved. On 24 November, Mr Richards wrote to DJH saying, amongst other things: "Ian McGlinn has given the go-ahead". Mr McGlinn accepted in cross-examination that, although he could not recall the conversation, he must have given this instruction to Mr Richards.
- Following Mr McGlinn's decision to go ahead with Waltham, on 25 November, WL wrote to Waltham in terms which were referred to at the trial as a 'letter of intent'. The full text of the letter read as follows:
"Villa Gardena St Aubin Jersey
Further to the receipt of your tender on 13 November 1998 on behalf of the client in respect of the above mentioned project, we are pleased to inform you that it is the intention to appoint you as Main Contractor to carry out the specified work, subject to a satisfactory conclusion to negotiation of a schedule of modifications to achieve the project budget and your signature of the contract documents, which shall be forwarded to you under separate cover. Meanwhile will you proceed with whatever action may be necessary to commence your construction programme inter alia the following:-
1. Agreement of a detailed programme with the Design Team.
2. Allocation of plant, labour and materials.
3. Advance ordering and stockpiling of materials where necessitated by extended delivery periods.
4. Liaising with the relative sub-contactors and agree their detail programmes.
5. Liaising with all public and Statutory bodies including serving of necessary building notices to the Building Inspector.
6. Taking out of insurances as required under the terms of the contract. To submit as soon as possible, copies of your insurance policies/endorsements as called for under the relative contract clauses. To satisfy yourself that all sub-contactors have suitably entered into the requisite form of agreement and that they have indemnified you against all conditions in accordance with the contract.
7. Progressing the performance bond as identified in the bills of quantities.
A contract sum will be negotiated with the quantity surveyor, before commencement of any works on site, on the basis of your tender, detailed post tender reductions, submissions and discussions.
In the event of your nomination for this work not proceeding for any reason outside your control or influence, it is agreed that any abandonment cost to be paid will be negotiated with the quantity surveyor against a quantum meruit assessment of the work actually undertaken up to the date of such termination and any works will be made available to the client. Failure to reach a satisfactory agreement of a contract sum will not be deemed for this purpose as outside of your control and consequently abandonment costs will not be considered in this respect."
- Accordingly, as at the end of November 1998, there was no agreement between Mr McGlinn and Waltham (the two parties to any proposed building contract) in respect of the scope of the works (because of the proposed changes/reductions in workscope); the price of the work (because the letter says that the contract sum is to be negotiated); and the period which the contract works would take (because the letter says that a detailed programme had to be agreed). In those circumstances, it might be thought that a letter of intent in these terms was a little premature.[3]
- Despite the terms of the letter, no formal building contract was ever entered into by Mr McGlinn and Waltham, and, even more surprisingly, the letter was never updated. In August of 1999, after Waltham had been working on the site for many months, WL sent them a set of contract documentation which, in the round, duplicated in their entirety the documents sent out with the original tender enquiry. However, this contract was never signed by Waltham and sent back. Whether this was simply due to inadvertence is unlikely; there is a clear suggestion in the papers that Waltham deliberately decided that they could not sign up to this contract because they were unable to agree to a completion date for the works due to the number of variations. It is likely that this was a classic case where a contractor was allowed to start work before a contract was or could be agreed, and by the time the parties might have been in a position to formalise a binding contract, it had been overtaken by events. Mr Thornton said that it was his understanding that "the contract was not signed because it was in flux". However, notwithstanding the absence of a contract, Waltham often wrote to HTA making claims pursuant to specific clauses of the JCT standard form, and purporting to rely on specific provisions that they considered helpful.
- What, then, can be said about the precise legal relationship between Mr McGlinn and Waltham? It seems to me that it would be idle to suggest that there was no contract, given the fact that Waltham carried out £4 million worth of work at Maison d'Or and the clear warning against finding no contract at all in such circumstances from Steyn LJ (as he then was) in G Percy Trentham v Archital Luxfer [1993] 1 Lloyds Rep 25 at 27. There he made the point (with which I respectfully agree) that:
"The fact that the transaction was performed on both sides will often make it unrealistic to argue that there was no intention to enter into legal relations. It will often be difficult to submit that the contract is void for vagueness or uncertainty. Specifically, the fact that the transaction is executed makes it easier to imply a term resolving any uncertainty, or, alternatively, it may make it possible to treat a matter not finalised as inessential."
- It should also be noted that, although Waltham played no part in the hearing, their pleaded defence maintains the stance they adopted during the works: it assumes the existence of a binding contract, and indeed purports to rely on a number of the terms of the JCT Standard Form where they are considered to be helpful to the contractor, without ever addressing matters such as the agreed work scope or the contract completion date.
- For present purposes it seems to me that Waltham and Mr McGlinn, through his agents, were agreed that, to the extent that it was consistent with the specific agreements that had been reached, the JCT Standard Form of Building Contract, 1998 Edition, would be incorporated into their contract. In addition, it seems to me that there was an agreement between Mr McGlinn and Waltham that the preliminaries and general conditions set out in Bill 1 of the Bills of Approximate Quantities would also be incorporated into their contract. That was certainly the important assumption on which WL operated. However, the fact that these JCT conditions look to have been broadly agreed as between Mr McGlinn and Waltham should not be taken to mean that the obligations of any of the professionals on this project must have been those which are envisaged to exist by the JCT Standard Form.
C10 The £10,000 Loan
- One of the many unusual features of this case was that Waltham loaned HTA the sum of £10,000 at the outset of the works in April 1999. The existence of the loan was not revealed by HTA to Mr McGlinn himself, even though it was not paid back until two years after Waltham had left site. Although there was a letter of 7 April 1999 which indicated that Waltham had informed WL about the loan (because it was an item in an early Waltham valuation which was approved by WL and later certified by HTA) this letter:
a) Was not on WL's files;
b) Was disclosed by Waltham but was not introduced into the court bundles until after the conclusion of all the oral evidence;
c) Was not referred to by Mr Thornton in his statements or oral evidence.
- Mr Thornton was asked about the loan itself. From his evidence, it appeared that:
a) He became aware of it either shortly after April 1999 or, at the latest, "some months afterwards";
b) He was not aware that it was, as he put it, "paid through the contract" (i.e. included by Waltham in a valuation of their preliminaries, accepted by WL, certified by HTA, and paid by WL on behalf of Mr McGlinn);
c) The fact that it was paid through the contract came as "a shock" to him;
d) As far as he was aware, the fact of the loan was not disclosed to Mr McGlinn or his representatives.
- I share Mr Thornton's shock at this event. It seems to me that it was quite wrong for HTA and this must, in reality, mean Mr Thomas - to seek or accept a loan from the contractors whose work they would be inspecting on behalf of Mr McGlinn. It was a grave lapse of professional judgment, leaving HTA vulnerable to an obvious and justified attack on their lack of integrity and independence. This lack of judgment was compounded by their failure to inform WL or Mr McGlinn; even if Mr Richards realised from Waltham's letter of 7 April 1999 that this loan had been made (and I make no findings either way), that cannot excuse HTA, because there was nothing to show that they knew that the letter had even been sent. The letter did not, could not, excuse Mr Thomas from telling WL and Mr McGlinn about the loan, and he failed to do so.
- I do not, however, accept the proposition that, merely because of the loan, HTA must have been in some way "softer" on Waltham than they would otherwise have been, particularly in respect of the making good of defects. I find that Mr Thornton made his inspections and dealt with Waltham without any regard to, or even subconsciously influenced by, the existence of the loan. I accept his evidence that, in carrying out his inspections, Mr Thornton "had little regard to the firm's position in relation to any money they owed anybody". Whether he made those inspections properly is, of course, another issue altogether.
- I find, too, that the failure on the part of HTA to call Mr Thomas supports my view that the making of the loan, and the failure to explain it to Mr McGlinn, was a grave lapse of professional judgment on the part of Mr Thomas. However, save where there are particular Items in the Scott Schedule on which Mr Thomas purported to give evidence as to periodic inspections, I do not consider that the failure to call Mr Thomas should affect my perception of Mr Thornton's performance as the inspecting architect.
C11 The Progress Of The Works
- I accept Mr Williamson QC's submission, made on behalf of Mr McGlinn, that the events between February 1999 (when the work started) and December 2001 (when Waltham stopped work) are of some significance to the specific allegations of default in this case. It is also important to set out, by way of background, the general features of the progress of the work over this period. There were three primary sources for that information: the contemporaneous documents in the sixteen G bundles, which were referred to only sparingly in the cross-examination; particular parts of the oral evidence of Mr McGlinn and Mr Thornton of HTA; and the lengthy paragraph 4 of the statement of Mr Thornton, which was not the subject of substantial challenge.
- The work started in February 1999. Between February and October 1999, there were site meetings, on average, every fortnight, which were minuted by Waltham, not HTA. They were generally attended by Mr Thomas and Mr Thornton of HTA, as well as Mr Richards of WL, and representatives of DJH and Waltham. From November 1999, the frequency of the site meetings dropped to once a month. With one or two exceptions, HTA's sole representative at these monthly meetings was Mr Thornton. The minutes of these meetings demonstrate that, by January 2000, the ground floor slab had been cast and the blockwork walls were progressing. By October the same year, the main structure of Maison D'Or had been completed, namely the walls, windows, roof and so forth. Thereafter, as Mr Thornton accepted, the main focus of the monthly site meetings was in respect of the internal works, principally the mechanical and electrical works. Mr Thornton also said that his periodic inspections were carried out on the same day as the monthly meetings, usually in the company of Mr Richards of WL.
- By reference (principally) to the evidence of Mr Thornton in cross-examination, I find that there were a number of typical features of a large-scale building contract that were present here. These included:
a) Letters from the contractor, Waltham, to HTA, as architects, raising queries and requests for information and instruction, and responses by HTA;
b) Letters from Waltham to HTA requesting specific instructions and responses by HTA;
c) Letters from Waltham to HTA confirming oral instructions given by Mr Thornton;
d) The production of detailed design drawings by HTA, which were revised in the usual way during the project;
e) The co-ordination by HTA of the design work done by DJH;
f) The issue by HTA of interim certificates for payment;
g) The periodic inspection by HTA of the works as they progressed on site.
- Again, largely by reference to Mr Thornton's evidence in cross-examination, I find that the following, rather more unusual, features also existed on this project:
a) The absence of any formal written instructions issued by HTA to Waltham, either in the standard RIBA/JCT form or, indeed, any other written form;
b) The absence of any written or otherwise minuted criticism or complaint by HTA to Waltham in respect of any single aspect of the construction work;
c) The making of the loan of £10,000 from the contractor to the architect at the outset of the works, which was not disclosed directly and openly to Mr McGlinn: see Section C10 above.
- Mr McGlinn accepted in cross-examination that, during this period, he would visit Maison d'Or from time to time and, if he saw something which he did not like, he would instruct it to be demolished and rebuilt in another way. Mr Disdale confirmed that Mr McGlinn often changed his mind "when he saw things constructed". Therefore, even though Waltham might have built the particular feature entirely in accordance with the drawings with which they had been provided, Mr McGlinn would consider the feature in question and then decide that he wanted something different. Mr McGlinn said that, since he was prepared to pay for the change, this was an attitude that he was entitled to adopt: "I was prepared to pay for it and they had time". This approach was consistent with his statement, early on in his cross-examination, that his wealth allowed him to indulge his likes and dislikes.
- Of course, as Mr Jowett acknowledged in paragraph 4.6 of his expert's report, these events provide an explanation for at least some of the delay and disruption experienced during the construction of Maison d'Or. They also provide the background to some of the allegations in the Scott Schedule.
- Two examples of this practice, both of which Mr McGlinn accepted, concerned the two main bedrooms. In Bedroom 2, which had originally been built, as per the drawings, with an open balcony and a turret room, Mr McGlinn then instructed that the turret should be closed off with windows. The posts which carried the roof of the turret then had to be turned into window mullions and extensive further work was required. Mr McGlinn did not accept the suggestion that Mr Thornton had told him that adapting the existing timbers and windows would not be as good as having the whole thing purpose-made in the joinery shop. In Bedroom 1, Mr McGlinn instructed the raising of the floor in the study and the lowering of the window sill in the study and bedroom, to improve his view, as well as the extension of the balcony to Bedroom 1 to make it larger.
- On this same general point, at paragraph 4 of his statement, Mr Thornton identified other extensive changes to the works, some of which form the background to other items in the Scott Schedule. Mr McGlinn was invited to read this lengthy paragraph and concluded that "it seems right". The many changes identified by Mr Thornton included:
a) Significant design changes in April 1999;
b) The addition of the swimming pool in August 1999 and, in April 2000, a new requirement that the cover of the swimming pool could be walked over. This is directly linked to Item 10.1.1 in the Scott Schedule;
c) Changes introduced in August 1999 to the sitting room, kitchen, attic/gym, billiard room and family room;
d) The "numerous changes" in March and April 2000 in respect of the billiard room, the front door, the staircase in the entrance hall, and the cellar/utility room;
e) 21 items of changes identified as a result of Mr McGlinn's visit to the property on 31 October 2000;
f) Further changes in relation to the electrical work in January 2001;
g) Further changes in April 2001 including changes to the floor tiles;
h) Changes to the entrance hall and stairs, changes to the sitting room, and changes to the kitchen made in June/July 2001;
i) Changes in November and December 2001 to the swimming pool cover (Item 10.1.1) and to bedroom 4 and the garage.
- Three points emerge from Mr Thornton's lengthy description of the changes to the works (and their effect) during the three year period in which Maison d'Or was constructed. The first, which was echoed by others, was the delay on the part of TDD in producing internal design features, a failing which Mr Disdale candidly accepted during his cross-examination. It may be that, at the outset, the relationship between Mr McGlinn and TDD was entirely informal, and that, therefore, the production of information for Mr McGlinn was not one of TDD's highest priorities, but by 2000, and the construction of the house itself, that could no longer be an excuse for the late delivery of promised information.
- Secondly, there is the likelihood that, because Mr McGlinn issued peremptory instructions on his irregular visits to the site which resulted in the destruction of work which the professionals and Waltham regarded as perfectly satisfactory, this would have had an effect on the morale and, up to a point, on the performance of the contractors and consultants working on Maison d'Or. However, I reiterate that, in general terms, I do not consider that, without more, these instructions and events could be used to excuse specific errors of design or workmanship.
- Thirdly, although the scope and scale of the changes made by Mr McGlinn demonstrated that, if he did not like something about Maison d'Or as it was being built, he pointed it out and had it changed, he never complained about the Haddonstone (Item 1.2.1 of the Scott Schedule), the idigbo (Item 2.2.3), or the masonry paint on the render (Item 1.1.2). In respect of the Haddonstone, he accepted that it was possible that the only comment that he made was that the stone looked too neat and he again requested that yogurt be painted on it to promote the growth of algae and mould (paragraph 62 above). As to the idigbo, he made no comment at all. And as to the render and paint, although he said that he knew that the walls had been painted and he had made no criticism of that, he sought to excuse that omission by arguing that "at that time it was too far gone". It therefore follows that, although Mr McGlinn was not shy about making radical changes to the completed works, he did not seek to make changes in respect of these three aesthetic elements of Maison d'Or which feature prominently in the Scott Schedule and which, on the face of it, were apparent to him from 2000 onwards. That is a point to which I return below.
C12 The Appointment Of Mr Tanner
- By the summer of 2001, it was plain that the Maison d'Or project was in a certain amount of difficulty. The exterior of the house was largely complete and, whilst the interior was certainly moving towards practical completion, it was some way from achieving that status. Mr McGlinn had understood originally that the contract price was going to be £1.66 million but, by this stage, he had paid Waltham approaching £4 million for the work. Everything had taken considerably longer than the year which Waltham had originally estimated. Mr McGlinn was, not unreasonably, dissatisfied with this position. However, in the absence of a clear building contract, and in the absence of a clear line of responsibility amongst the professionals, Mr McGlinn's room for manoeuvre was somewhat limited. He decided, not for the last time, that the right thing to do was to appoint a new adviser.
- Accordingly, in June/July 2001, Mr McGlinn appointed Mr Tanner to act as his representative. Mr Tanner had been the captain of one of Mr McGlinn's boats and had known him, and worked for him, for a long time. It was clear that Mr McGlinn trusted him to look after his interests. Mr Tanner then became involved in endeavouring to ensure that Maison d'Or was completed to Mr McGlinn's satisfaction. He agreed that he became Mr McGlinn's "eyes and ears and mouthpiece". He said that one of his main functions was to provide "the instructions, decisions and answers" on site which, according to him, both WL and Waltham were asking for. He accepted in cross-examination that one of his functions was to give instructions on Mr McGlinn's behalf. Mr McGlinn, too, agreed that Mr Tanner was there "to instruct them of my needs".
- During the cross-examination of Mr McGlinn, it was suggested to him that Mr Tanner's appointment coincided with a significant change of mind on his part as to what he wanted Maison d'Or to look like. It was suggested that, by 2001 at the latest, Mr McGlinn wanted Maison d'Or to look more like the Sandbanks house and that changes were then made to try and achieve this. To the extent that that suggestion is pursued by HTA, I reject it. It does not seem to me that the instructions being given by Mr McGlinn, through Mr Tanner, amounted to a major change of design concept on the part of Mr McGlinn. I do not believe that there was any intention to change the architectural idiom at Maison d'Or.
- It appears that Mr Tanner's first meeting was in July 2001 with WL and Waltham. HTA were not present. Mr Tanner made notes of the matters which needed attention, trying to hurry things along towards completion. Thereafter he made various inspections of the property. Indeed, in November alone, Mr Tanner carried out at least two extensive inspections of Maison d'Or in the company of Mr McGlinn. Mr McGlinn made clear to Mr Tanner those items with which he was dissatisfied on a room-by-room basis.
- One of the complaints which surfaced at this stage, really for the first time, was the point that the interior and finishes were not to the boat standard. Mr Tanner produced notes of those items with which Mr McGlinn was unhappy and passed them onto Waltham; by this time, one of Mr McGlinn's concerns was that, in his view, Maison d'Or "was not the same quality as a luxury yacht". At this late stage in the progress of the original works, Waltham had not offered up any part of the building for handover, and neither HTA nor DJH had produced any snagging or defects lists at all. In his cross-examination, Mr Tanner accepted that, as a result of his role at that stage, he was having direct dealings with and issuing instructions to Waltham, without reference to either WL or HTA.
- However, it appears from the documents that not even the presence of Mr Tanner could resolve all the longstanding problems on site. For example, in their letters of 16 October 2001, 7 November 2001 and 9 November 2001, Waltham complained that Mr McGlinn regularly failed to attend meetings (despite his promises to do so) which meant that decisions on particular outstanding matters could not be taken and had to be deferred. It is clear that frustrations were building on all sides.
- At this time, as Mr Thornton put it, "the contractor was still working towards passing it [the building] over to us for snagging". However, as he confirmed, at no time before Waltham left site in January 2002 did they "actually offer the building up for snagging". Furthermore, at the same time, WL were apparently making relatively modest deductions from sums otherwise due to Waltham on account of defects in the work which had been pointed out and discussed by Mr Thornton and Mr Richards.
C13 The Departure Of Waltham
- On 4 December 2001, Waltham wrote two important letters. The first responded to Mr Tanner's lengthy list of items that needed to be dealt with following his visit on 23 November. Waltham claimed that 33 of these items required an instruction from HTA to proceed; that they were, effectively, variations.
- In their second letter, Waltham complained to HTA that practical completion had not been certified. It appears that Waltham accepted that not all of the works that they had been asked to do were practically complete, but they argued that all of the original work scope was complete and that any outstanding matters related only to the extensive variations which they had been instructed to carry out. They seemed to envisage some sort of qualified Practical Completion Certificate which is not provided for in the JCT form and is, on analysis, a contradiction in terms. Moreover, Waltham's stance was not an easy one, even by reference to the original work scope, given that they had at no stage offered up any part of the building to HTA for handover and snagging. In addition, in the absence of a signed contract, it might have been difficult to differentiate between original work scope and variations in any event.
- Mr Thornton reiterated in evidence his view that, because Waltham had not even handed over the building for snagging, there was no question of certifying Practical Completion (see also Section E3.8(d) below). Mr Tanner wrote to HTA on 7 December to reiterate Mr McGlinn's "strong concern that, in his opinion, this stage [Practical Completion] has not yet been reached." It therefore appears from the evidence that, at this point, neither Mr Thornton, nor Mr McGlinn, nor Mr Tanner, considered that the building was practically complete.
- Waltham produced an interim valuation application in November, which was valued by WL and certified by HTA on 6 December 2001. According to the contract, the certified sum of £68,350 became due no later than 27 December 2001. The sum was not paid and, on 27 December 2001, Waltham served a default notice pursuant to Clause 28.2.1 of the contract and seeking payment in 14 days. On 4 January 2002, Waltham suspended work and on 11 January they purported to terminate their employment under the contract. The outstanding sums were then paid by Mr McGlinn following the issue of a statutory demand. It now seems clear that Waltham's notices of 4 and 11 January were issued prematurely.
- On this basis, Mr McGlinn's then solicitors, Eversheds, wrote to Waltham on 23 January, pointing out that the notices were invalid and amounted to a wrongful repudiation of the contract, which Mr McGlinn accepted. Waltham's express offer to continue with the works was rejected completely, and they left site the next day, making a video of the conditions as they then existed. Waltham never returned after 24 January, and to all intents and purposes, no further work was carried out at Maison d'Or. The house stood empty, unheated, unventilated and rather neglected, for the next three years. It is HTA's case that this exacerbated, and even caused, some of the defects about which complaint is now made.
- There was no evidence about the advice (if any) given to Mr McGlinn by Eversheds concerning the consequences of accepting Waltham's repudiation of the contract, and rejecting their offer to complete the outstanding works. In the context of this dispute, that is not an unimportant matter; it has been said, with some force, that much of this case results from the simple fact that the building was never actually finished. The risks inherent in refusing to allow a building contractor to complete his work are well known to those who are involved in construction disputes; there is no evidence as to the extent (if at all) to which Mr McGlinn was advised of those risks by Eversheds when he decided not to allow Waltham to finish the works at Maison d'Or, and to accept their repudiation instead.
C14 The Investigations By Charter
- Charter were the architects who had been instructed by Mr McGlinn to provide architectural services during the construction of the property at Sandbanks: see Section C5 above. In March 2002, they were appointed to inspect Maison d'Or, record the defects and enable the necessary rectification works to be carried out: see Charter's letter to Mr Tanner of 21 March 2002.
- The principal tasks of inspection and report-writing were carried out by Mr Wheeler of Charter. Mr Wheeler did not give evidence. He produced an Initial Site Report dated 25 March 2002 which was rather like a snagging list. Mr Tanner added his own comments: he accepted in cross-examination that he made no criticism in these comments about the idigbo, the reconstituted stone, or the painted render, all of which are now allegations made by Mr McGlinn in the Scott Schedule. On 17 May 2002, there was a meeting at which Mr McGlinn was present, together with Mr Tanner, and three representatives of Charter. At that meeting, the question of the boat standard finish was raised by Mr McGlinn. It was Charter's stated position that "to get this standard you need to employ a specialist". In the typed minutes of this meeting, the point was expanded, with Charter making it clear that when, in respect of the Sandbanks property, Mr McGlinn referred to the need for a boat finish for all the works, they immediately realised that this was a standard of finish that was not normally obtainable on standard construction in the UK and that boat-building specialists would have to be employed to carry out much of the work (see paragraphs 47 and 48 above).
- Notwithstanding this, it is clear that in the March 2002 report, and the subsequent discussions, Charter approached Maison d'Or on the basis that HTA had received the same instructions from Mr McGlinn on Jersey that they had for the Sandbanks property. As Mr Dobbs of Charter put it, "the benchmark was Sandbanks".
- Following this meeting, in July 2002, Mr Wheeler produced a much more extensive defects schedule, which was the origin of the Scott Schedule used at the trial. The vast majority of the defects were identified as matters of bad workmanship on the part of Waltham. Further, almost all of the items were internal. There were just four pages of external items. Mr Dobbs said that the investigation which gave rise to this schedule was intended to be as exhaustive as possible. Therefore, it is important to note that, as the cross-examination of Mr Dobbs made plain, a number of critical allegations in the subsequent Scott Schedule were not mentioned at all in Mr Wheeler's July schedule. They included Items 1.1.1, 1.1.2, 1.2.1, 1.2.2, 1.2.3, 1.2.5, 1.3.3, 2.1.4, 4.1.1, 10.1.1, 10.2, 10.3.2, 10.3.3, 10.3.4 and 10.4. I accept Mr Bartlett QC's submission on behalf of HTA that these Items include some of the most important which HTA now face, and would not have required any opening-up in order to be discovered.
- Of particular significance was the omission of Item 4.1.1 of the Scott Schedule which is concerned with the alleged inadequate quality of the slates. The allegation against HTA turns on whether or not, during Mr Thornton's periodic inspections, they should have noticed the pyrites stains on some of the slates. HTA's defence was that there was no sign of pyrites prior to January 2002. In such circumstances, the content of Mr Wheeler's July 2002 Schedule was important, because it was the best evidence of what could be seen at Maison d'Or by an architect, inspecting for defects, some 6 months after the work had come to an end. Mr Dobbs accepted that Mr Wheeler had looked at the slates (because he noticed and recorded that several slates were broken and needed replacing) but either he did not notice the pyrites or did not consider that it was a matter worth commenting upon. Mr Dobbs suggested that an even more thorough investigation might have been needed in order to appreciate that there was an issue of pyrites.
- With the assistance of a contractor called Drew to perform opening up works, Charter carried out a further investigation between 19 and 23 August 2002. A further report was then provided. This led to a revision of the defects schedule of July, which now identified photographs of some of the typical defects. This did include a first reference to the pyrites. At least some of the items in the revised schedule could fairly be classified as snagging items; there was a major dispute (as demonstrated in the evidence of Mr Dobbs of Charter) as to how widespread such items were, and whether in truth, many of the items were more significant than mere snagging. It was accepted by Mr Sey that these opening up works exacerbated water ingress into the property.
- On 9 September 2002 there was a further meeting between those advising Mr McGlinn. One of the points noted at that meeting was the "deterioration due to building standing empty". Mr Dobbs said that the concern was that Maison d'Or had been sealed up, and really needed to be properly ventilated whilst the building dried out, a point echoed by Mr Sey of Charter during his cross-examination. Mr Holt agreed that the closing up of the property when it was drying out was a serious mistake. In addition, it does not seem that any attempt was made to stop water ingress in the few places where it was occurring. There was also further discussion about the boat standard and what Mr McGlinn thought that he was getting originally. Following that discussion, Charter were not asked to do any further investigations until well into the following year. Thus, between September 2002 and July 2003, very little happened at the site.
- On 10 January 2003, there was a meeting attended by Mr Tanner, and the representatives of Charter and EC Harris, the quantity surveyors/costs consultants appointed by Mr McGlinn. At this meeting, it is clear that Mr Tanner was passing on specific instructions from Mr McGlinn. These included potentially significant changes to the design of the existing property, such as a requirement for slimmer window timbers and larger areas of glass. As a result of this meeting Charter prepared a 'Schedule of Client's Requirements' which talked, for instance, about the possible redesign of the windows and reducing the timber section sizes.
- On 22 July 2003, there was a meeting at Charter's offices attended by a variety of Mr McGlinn's new team, including Roger Jowett, from Bickerdike Alan, his architectural expert, and Mr Raper, his solicitor. Although there are minutes of this meeting, they are not always easy to follow because much of the document has been redacted, apparently on the grounds of privilege.[4] There is a draft management structure in respect of the remedial works. It is perhaps worth making the point that no such diagram could have been drawn to demonstrate the management structure on the original project (see Section D below).
- During the discussion about the appropriate remedial work, there is the following minute:
"3.3 Although a 'start again' remedial option may appear to be proposed option in some cases, the repair solution needs to be properly considered giving reasons why its implementation would not be effective."
In his cross-examination of Charter's Mr Dobbs, Mr Bartlett QC put it to Mr Dobbs that this minute indicated that, by this stage, Mr McGlinn and/or his new professional team were leaning firmly towards demolishing Maison d'Or and starting again and that, accordingly, care was going to be needed to explain how and why the repair option would not be effective. It seemed to me that that was the only fair reading of the minute, a point with which Mr Dobbs agreed. Mr Sey also agreed that he could see "why it would be read like that". On the basis of that evidence, and given the redaction of much of the preceding minute, I find that the only fair inference to draw is that, even at this stage, demolition and rebuilding was already the preferred choice of Mr McGlinn, and that the information-gathering and report-writing exercises were to be carried out with this end in view. That would be consistent with his wish to have significant elements of the house, like the windows, completely redesigned.
- Such a finding is also consistent with the email from Mr Dobbs of Charter, to Mr Sugg of E. C Harris of the previous day (21 July 2003) which talked about Mr McGlinn's desire for through-colour render which "might be technically feasible given the external joinery is to be replaced". Mr Sugg confirmed that this meant that, even at this stage, a decision had already been taken that all the external joinery would be replaced.
- There was also a further discussion about the question of quality at the meeting on 22 July. Minute 6.6 reads as follows:
"Quality Benchmark was tabled as one of the client's boat (Tigre D'Or) however it was also highlighted that a vessel joinery project is different from joinery installed in a construction environment. Any 'higher than construction site' standards imposed on this project would naturally be at a financial premium."
Whilst this passage was talking about the standard of the proposed repair or rebuilding of Maison d'Or, it seems to me that this comment would be equally applicable to the original works carried out by Waltham: again see paragraphs 47 and 48 above.
- Between 2003 and 2004, a full-scale opening up operation took place at Maison d'Or, including the complete stripping of the roof, and the construction of a lay-by at the side of the property to facilitate the works. These were known collectively as "the enabling works", although Mr Holt agreed that only the lay-by could truly be called enabling work; the rest of the work was concerned with the investigation and recording of what was found at the building.
- Four points arise from this extensive programme of works. The first concerns its scale. Mr Jowett said frankly that he considered that more opening up work was done than he considered necessary. I respectfully agree with that view. At least some of the opening up work seems to me to have been unjustified on any view of the evidence of defects or damage as it then existed. Mr Sey of Charter said that he had never before taken a house apart in this manner. Mr Sugg of E. C. Harris confessed that "I have never known a contract like it", and he was the project manager.
- The second point concerns the purpose of the enabling works themselves. It is usual, in cases where an employer is concerned about defects in a new or refurbished building, to open up in those areas that have given rise to the original concerns. For example, if there are leaks below a proprietary roofing system, parts of that system will be opened up to demonstrate whether the roof joints have been properly made, and so on. But here, considerable opening up works were authorised in areas where there was no, or very little, reason for Mr McGlinn's team to have even a reasonable suspicion about the work that had been performed. One example that I take is the roof. It appears that between 2003 and 2004 the entirety of the roof covering was stripped off, which involved about 10,000 slates on 19 different roof slopes. And yet, as Mr Sey and Mr Holt of Charter both accepted, there was no evidence that there was one single leak through the slates. Such extensive opening up work was therefore, on the face of it, both exceptional (which everyone agreed) and, depending on what was found, potentially unjustified.
- Mr Sey originally said that one of the principal purposes of the enabling works was to help Mr McGlinn to decide whether Maison d'Or should be repaired or demolished. Clearly, some of the enabling works, like the construction of the lay-by, did not fall into this category in any event. And, more widely, it is difficult not to conclude that the focus of Mr McGlinn's team and Charter in particular - was on finding defects, even in areas where there had been no problems and no signs of damage. Thus, by 2004, as these extensive works continued, I consider it unlikely that Mr McGlinn's team thought that repair of a building that they were pulling apart so thoroughly was a likely option.
- The sheer scale of the so-called enabling works can also be measured in monetary terms. The enabling words, including the £171,543.70 paid to Charter, cost a total of £687,320.36. That is to be compared with the (largely agreed) maximum base cost of the repair works for all the alleged defects (excluding on-costs and fees) of just £870,066. It is very difficult to justify spending £687,000 in order to decide whether or not to spend £870,000 on remedial work. Mr Sey agreed that it seemed "an enormous amount of money to spend", and that, if the purpose of the enabling works was to decide whether to repair or rebuild, the figure was "unreasonably large". Perhaps as a result of this answer, Mr Sey then went on to accept that the main purpose of the enabling works was to obtain and preserve evidence to be used in court proceedings against the Defendants.
- The third issue arising out of the extensive enabling works concerns how they were performed. I am in no doubt that those works were done carelessly, with no real regard for the materials being removed, and no real thought given to whether or not the elements concerned could be re-used. In a lengthy passage of cross-examination, Mr Bartlett QC put to Mr Jowett a number of the stills from the videos which demonstrated the careless way in which the extensive opening up work had been done. Mr Jowett quite properly agreed with the generality of the points that were put to him. He agreed that the opening up caused "a considerable amount of damage". It is impossible to reconcile the destructive way in which this work was carried out with a real desire on the part of Mr McGlinn and his team to repair, rather than demolish, the property.
- The final point arising from the opening up confirms the previous three. It arises from the minutes of the meeting held on 2 October 2003, which was immediately before the opening up commenced. Charter had prepared a document called 'Scope of Works Overview' which said that, in respect of each defect, where the remedial option was unclear "the more onerous remedial option has been selected". Mr Sey of Charter was asked about this in cross-examination:
"Q: So we see from the sentence about 'the more onerous remedial option', that your approach was to assume the worst situation and the most onerous remedial option where there was any lack of clarity?
A: Correct ... the underlying situation was that at some point this building had to be made good and that we had to ensure absolutely that any work that was done on the building was successful."
It seems to me that, again, this approach 'ensuring absolutely' - was likely to make the demolition/rebuild option more, rather than less, likely.
- A further point should be made about the Scope of Works Overview document. In relation to the individual Items in the existing Schedule, it purports to draw a distinction between remedial works on the one hand, and enhancement works on the other. I note that, at that stage, the proposed change to self-coloured render (Item 1.1.2) and the proposed change from stone to granite (Item 1.2.1) were both considered as an "enhancement". Other alleged defects in the present Scott Schedule are also identified in this document as enhancement rather than remedial works.
- The contractors chosen to undertake the enabling works were Camerons, although there was no tender process. During the opening up works, there were meetings at which the condition of the building was considered in some detail. These meetings were sometimes minuted, and again the minutes confirm that the emphasis was rather more on the demolition and rebuilding option than repair. Thus, for example, the minutes of the meeting on 4 November 2003 at Camerons' offices referred to the under floor heating and the tests that had been carried out on it. The minutes noted that the feedback from those tests was that "the under floor heating cannot sustain an argument for taking all of the heating out". Mr Sey accepted that, again, he could understand why that minute would appear to show that Charter and the rest of the team were trying to find reasons for wholesale replacement rather than repair.
- The enabling works continued throughout the winter of 2003 2004. Unhappily, this meant that the roof was stripped during the worst of the weather. Mr Sey accepted that was a strange time of year to have chosen for those particular works.
- Another feature of the enabling works was the production by Charter of six different kinds of record sheets, recording every kind of potential defect. This data underpins the Scott Schedule in the litigation. Mr Sey said that he had never prepared documentation like that before. He agreed that the reason for the works, and the monitoring system, was 'to create and preserve evidence for the legal proceedings'. Many of the sheets themselves were prepared by Mr Holt of Charter, whose only previous experience of working on a luxury house was at Sandbanks, and who had never before assessed a building for a defects claim.
- On 5 July 2004, Charter produced a report which identified the defects and the different remedial options. It appears that the report was based, at least in part, upon other material for which privilege has been claimed. The report was expressly designed to demonstrate that, in respect of particular elements of the construction, the cumulative effect of the matters complained of was such that a point was reached whereby the right remedial scheme was, in fact, to demolish and rebuild the element in question. As Mr Dobbs put it, "we look at the cumulative effect of one defect on to the next in terms of what [remedial works] might be appropriate". As an example, section 1.1 of the report dealt with the external walls. The numbering is again similar to the Scott Schedule used in the litigation. Item 1.1.1 dealt with the coping detail; Item 1.1.2 was the paint finish; Item 1.1.3 was the paint application; and Item 1.1.4 was the render. Those are all Items alleged against HTA. The report does not recommend that, in respect of those four particular defects, the walls would have to be taken down and rebuilt. Instead, piecemeal repairs were suggested.
- The next Item in the report was Item 1.1.5. That was concerned with allegedly inadequate wall ties. It is not an Item alleged against HTA, either then or now. Having dealt with that Item, the report then stated that partial/piecemeal removal of the external leaf in order to install further wall ties was not an appropriate course and that therefore, in all the circumstances, the walls had to be demolished and rebuilt. The same approach was recommended in respect of all the subsequent Items in Section 1.1 (Items 1.1.6-1.1.8), which are again not alleged against HTA. Thus, on the face of the report, it was only those Items which are not alleged against HTA that tipped the scales to justify demolition and rebuilding.
- The Charter report of 5 July 2004 dealt with the demolition/rebuilding option on the one hand, and the repair option on the other. The report made it clear that "the process does not make any judgments concerning the financial viability of the remedial works. The solutions offered are purely driven by the process of arriving at a practical and pragmatic solution to the defect". Mr Sey of Charter accepted in cross-examination that Charter did not weigh up the relative advantages of one solution as against the other, and made no recommendation as to what Mr McGlinn's decision should be when the cost information was taken into account. Accordingly, the relevant material has to be read as part of a two-stage process: the Charter report dealing with the defects and the remedial options, and the EC Harris report comparing the costings.
- A point which arose on a number of occasions was the advice that was given to the effect that the remedial solution was riskier than the demolition/rebuild, because there was a risk that, if the works were confined to repair, other defects might be identified during the repair process. Whilst it seems to me that this was a risk, I am not persuaded that, in these particular circumstances, it was of great significance, particularly as Mr Sey accepted that, in view of the extensive and intrusive investigations that had already been carried out, the chance of a serious but as yet undiscovered defect emerging during the repair works was relatively small.
- The Charter report recommended rebuilding. As noted previously, in Mr Sey's witness statement, he qualified that recommendation by saying that "the final decision would be driven by cost and cost certainty". In essence, that was a reference to the separate E.C. Harris report on the figures. That report advised Mr McGlinn that, although the demolition/rebuild option was more expensive than the repair option, there was not very much in it. Of course, that was the advice then; now, as perhaps might have been anticipated, the rebuild option is valued at £1 million plus more than the agreed costs of repair.
- To complete the story, a week after the main Charter report, on 12 July 2004, Charter produced two further short reports, one dealing with an outline of proposed construction works, and the other setting out the scope of salvage, removals and demolition work.
C15 The Decision To Demolish
- It seems that, some time in August 2004, Mr McGlinn decided to demolish Maison d'Or. The precise circumstances in which that decision was taken are shrouded in mystery, which is most unfortunate given the importance of the decision itself in this litigation, and the admission by Mr Sugg, of E. C. Harris, that a decision to demolish a new house would require 'strong and exceptional circumstances' to justify it. Mr McGlinn confirmed that there was no meeting and no minuted discussions relevant to the making of the decision; he agreed that there was no letter, and certainly no reasoned analysis, setting out what factors he had taken into account in deciding to demolish. The decision itself was apparently communicated orally to Mr Raper, Mr McGlinn's solicitor, who passed it on to Mr Sugg, the Project Manager in respect of the enabling works at Maison d'Or. He then told the rest of the team by way of an email dated 18 August 2004.
- It is most unsatisfactory that so little is known about the basis for the decision to demolish. For example, Mr Sugg of E. C. Harris was obliged to admit in cross-examination that he did not know when Mr McGlinn made it and, rather more importantly, he did not know on what basis Mr McGlinn had made that decision.
- According to Mr McGlinn's solicitors, a large number of reports, gathered together in trial bundle G15, were considered by Mr McGlinn in coming to his decision. However in his cross-examination, Mr McGlinn appeared to accept that the only document to which he paid any serious attention was the Charter report of 5 July 2004 (paragraphs 132-135 above) and the costing information produced by E. C. Harris (identified at paragraph 136 above). Mr McGlinn made clear in his cross-examination that he was not a great reader of reports and that he expected to have the relevant points explained to him orally. He did not read any of the reports by himself. Accordingly, it seems to me most unlikely that Mr McGlinn had regard to the full lever arch file worth of material in bundle G15, and much more likely that he simply scanned, or had explained to him, the contents of the Charter report of 5 July and the E.C. Harris costings based on that report. I therefore find that that was the principal material on which Mr McGlinn relied when he decided to demolish the building.
- It does not appear that Mr McGlinn had in mind any structural or mechanical and electrical matters when he decided to demolish. Mr McGlinn was taken through the Charter report and it was demonstrated that it contained no engineering criticisms at all. In cross-examination by Mr Whitting, Mr McGlinn was asked whether, on that basis, it was right to say that the reports of the engineering experts formed no part of the decision to demolish. Eventually, there was this exchange:
"Q: Mr McGlinn, it was your decision to demolish the house, was it not?
A: Yes, of course.
Q: I think you will agree it was a drastic step to take, was it not?
A: The whole thing has been a drastic step, but I had to take it on the reports of my experts and the advice.
Q: You keep repeating, Mr McGlinn, that you take experts' advice.
A: Yes.
Q: But you have also confirmed to me that you did not take into account any advice that you were given by your engineering experts, did you?
A: No, I did not."
- This conclusion is also borne out by the evidence of Mr Sey of Charter, who produced the report of 5 July. He expressly accepted that, in his report, he had not relied on any engineering issues in making his recommendation to demolish and rebuild. Still further, I find, on all the evidence, that there were in fact no engineering matters which could possibly have justified demolition.
- One point that needs to be made at this stage concerns the advice from Mr Jowett, Mr McGlinn's principal expert witness. It appears that Mr Jowett did give some general advice about the advantages inherent in demolition and rebuilding, as against repair. However, Mr Jowett never gave any advice to Mr McGlinn, or anyone acting on his behalf, to the effect that Maison d'Or should be, or must be, demolished.
- Following the announcement of Mr McGlinn's decision to demolish, Mr Sey of Charter lost no time in suggesting a number of changes to the design of the new (rebuilt) property. Mr Sugg, the recipient of the document in which these proposals were first set out, agreed that he was suggesting some 'quite radical changes'.
- It appears that the decision to demolish was implemented in February April 2005. For reasons which again are not entirely clear, no detailed drawings have been prepared for a new building; no planning permission has been obtained for a new building; and no tenders for a new building have yet been sought. There was even an argument about what the new building will look like, because, although E. C. Harris' Project Execution Plan of June 2006 emphasised the importance of "contemporary finishes
stainless steel and glass", Mr McGlinn said in evidence, in an echo of his principal complaint against HTA, that he did not think that this is what he had asked for. Sadly, therefore, ten years after Mr McGlinn bought the site, Maison d'Or is a foundation slab waiting for something (it is not clear what) to be built on top of it.
D. THE UNCLEAR AND UNRECORDED CONTRACTUAL RELATIONSHIPS BETWEEN THE PARTIES
D1 The Conventional Position
- Under a modern construction contract, there are certain documents and procedures which are generally regarded as critical to a satisfactory outcome. Some of these critical features are noted below.
D1.1 The Employer's Requirements/Design Brief/Specification
- Some forms of construction contract, such as the JCT (With Contractors Design) Form, require a document to be prepared entitled the Employer's Requirements. This document is designed to make it plain to the contractor precisely what the employer requires. These documents are often prepared by the architect; they are effectively a written record of precisely what the employer wants the finished building to achieve. Even in a contract where there is no contractor's design, and therefore no need for a contract document formally entitled 'Employer's Requirements', it is usually the case that the employer (or the architect on his behalf) will prepare a written record of what the employer wants. This used to be called the design brief. Such a document will ensure that there will be no misunderstandings later as to the scope and nature of the employer's instructions.
- On the vast majority of sizable building projects, there will also be a specification. This will usually be based on the design brief, and will be an expanded version of what the employer requires, rendered into technical language for a contractor to understand and to follow. The specification will usually be prepared by the architect, and will become one of the most important component parts of the building contract.
D1.2 The Lead Consultant
- Most large scale construction projects involve a range of professionals. There will often be, in addition to the main contractor, a number of specialist sub-contractors as well. As construction projects have become more complicated, it has become even more important to ensure that there is one lead consultant who is responsible for the satisfactory implementation of the employer's requirements. The lead consultant may, but will not necessarily, be the architect; the discipline from which the lead consultant is drawn will depend on the type of project and the particular wishes of the employer. But, whichever professional is appointed to this role, he will usually be engaged by the employer pursuant to a written contract, the terms of which will require him to perform a wide range of duties. He must generally act as the employer's agent and do all that he reasonably can to implement the entirety of the employer's requirements. That may involve incorporating and integrating the specialist designs of others into one coherent whole, as well as the performance of an onerous administrative function.
D1.3 The Building Contract
- The lead consultant will usually agree, on behalf of the employer, the particular terms of the building contract appropriate to the project. This is important because it will usually be the lead consultant who will be responsible for administering that contract. In doing this he has to act as the employer's agent and, for certain functions, to adopt a quasi-arbitral role, balancing fairly the interests of both employer and contractor. Most of the standard forms of contract identify a wide range of tasks which the contract administrator must perform. It is therefore critical for the lead consultant to ensure that the contract as between the employer and himself incorporates all the obligations which, in its terms, the standard form of building contract assumes have been imposed upon the lead consultant as contract administrator.
D1.4 Authority to Issue Instructions
- The lead consultant will usually have the necessary authority to make decisions and to issue all instructions on behalf of the employer. Indeed, it is impossible to administer a construction contract satisfactorily if the lead consultant does not have the power to issue such instructions.
D2 The Present Case
- In my judgment, these conventional elements of a construction contract were either not present at all here or, where they were present in part, there is an extensive dispute as to their scope and extent. So, for example, there is no written or signed-off record of what Mr McGlinn wanted at the outset of the project: no employer's requirements, no design brief, no specification. This has meant that, for example, both prior to the trial and at the trial itself, there was a large amount of debate over the boat standard, whether it formed part of Mr McGlinn's original requirements and, if it did, what it meant and how it could be implemented.
- There was no written contract between the employer and either the architect (HTA) or the project manager (WL). As a result there is an extensive debate about the terms of the appointment of HTA, and a lesser dispute concerning WL, and the extent (if at all) to which their obligations overlapped or failed to marry up. There was also nothing in writing which suggested that any professional was engaged or regarded, either by Mr McGlinn or by any of the other professionals, as the lead consultant.
- As previously noted in Section C9 above, there was no completed building contract. Whilst it appears that those involved in the relevant events had broadly similar views as to what the building contract with Waltham comprised, and how it should be operated, they differ significantly as to who, if anybody, was obliged to administer it. It is quite extraordinary that a project of this kind was progressed for 3 years, at a cost to Mr McGlinn of £4 million odd, with no concluded building contract in place and uncertainty as to whose job it was to administer that contract on his behalf.
- That there were none of the usual written contracts in place was not entirely a surprise. Mr McGlinn agreed that he did not like to be concerned with detailed documentation; he agreed that he liked everything left 'informal and fluid'. In consequence there was not, in the 50 odd files before me, a single document signed by him. Similarly, I find that neither Mr Thomas, nor Mr Richards, ever gave any real consideration to the need for a proper and coherent project management structure.
- At the meeting of the post-Waltham advisory team on 22 July 2003, Mr Tanner made a number of these very points, in the context of the proposals then being considered for repair/rebuild. He is recorded as saying that "client dialogue is critical as this appears to be a major failure of the first contract
all design sign-offs and contracts (contractor, consultants etc) need to be in place as this was a principal failing of the 'first' contract works". Mr McGlinn agreed with that view in cross-examination. In my judgment, Mr Tanner and Mr McGlinn were quite right: the absence of any clarity concerning the inter-relationships between the various parties and what they were trying to achieve lies at the heart of this case.
- I consider that the complete absence of any sort of clarity in relation to the appointment of a lead consultant is also significant. HTA say that they were not the lead consultant for a host of reasons, including a contention that Mr McGlinn forbade them from issuing any binding instructions on his behalf, a point I address in Section E3.6 below. They also say that their design responsibility was limited to the shell of the building and did not include the interior, which was solely a matter for TDD. And from a commonsense perspective, it is rather difficult to imagine how HTA could have been Mr McGlinn's lead consultant, when he simply did not speak to Mr Thomas for the vast bulk of the time that Waltham was on site.
- Clearly, the announcement of the engagement of WL as Project Managers was another factor which emphasises the implausibility of any suggestion that HTA acted as a traditional lead consultant. How could they be, when they were not the Project Managers? On the other hand, it was plainly impossible for WL to fulfil any such role themselves, since they had no design function whatsoever and, as I explain in more detail in Section I below, they did not purport to deal with anything other than matters of valuation and payment, and a certain amount of liaison and contractor-chasing. However, it seems from the agreed bundle that WL did deal with the contract documents: they prepared and sent the documents to Waltham at the tender stage, wrote the letter of intent in November 1998, and sent the final version of the proposed contract documents to Waltham in 1999. Responsibility for contractual matters is very often part of the role of the contract administrator/lead consultant.
D3 Findings
- In my judgment, this major project was not set up at the outset in either an appropriate or a conventional way. To echo a sentiment in Mr Thornton's witness statement, "there was no overall co-ordination of the contract". The absence of the ordinary contract documentation, or any clear chain of command (on or off-site) meant that it was more likely than not that major problems might arise on the Maison d'Or project. It was simply unclear who would be responsible for what element of the project. On a related topic, I also find that there was no lead consultant in the conventional sense; all of the professionals were engaged to perform particular tasks, and, in the later sections of this Judgment, I go on to consider in detail the allegations that they failed to perform those tasks with proper skill and care. But I am in no doubt that, in the round, this cannot be considered a conventional case, and it would be quite unjust to assume that the consultants in this case were responsible for particular functions simply because the obligation in question was one which professionals of their respective disciplines might usually take on.
- I am obviously not alone in arriving at the conclusion that these inherent deficiencies offer an easy explanation as to why things went wrong on the Maison d'Or project. I have already referred to Mr Tanner's views on this topic. In addition, at paragraph 4.6 of his report, Mr Jowett said:
"
the disclosed documents do not contain evidence of any of the normal administrative procedures by which the cost, the programme, the detailed contract and the quality of a building project are controlled. In those circumstances, it is not surprising that the project cost more than initially thought, took longer than planned, contains defects and did not meet the client's expectations."
These points were not, however, expanded further in his report or developed in his oral evidence. The probable reason for that is identified in the following paragraphs.
- It might have been part of Mr McGlinn's case that, if the project was not set up properly at the outset, then that was the fault of HTA or WL. It also might have been argued on his behalf that it was for HTA or WL to ensure or at least advise - that there was sufficient clarity in the respective rights and obligations of all those involved in Maison d'Or, so as to give the project its greatest chance of a successful outcome.
- However, it is important to note that, with one very significant exception, no such case is pleaded by Mr McGlinn against either HTA or WL. Neither HTA nor WL meet any case in this action involving a failure to give proper (or any) advice about the contractual arrangements between Mr McGlinn and the professionals and/or between Mr McGlinn and Waltham. Neither is there any pleaded case to the effect that HTA or WL were responsible for the failure to administer the building contract, such as it was, in a proper fashion.
- The exception concerns the absence of a specification. Many of the individual allegations against HTA in the Scott Schedule are based on what is said to be HTA's failure to provide a proper (or any) specification to Waltham of the element of work required. This is a major part of Mr McGlinn's case against HTA, and the individual allegations are considered in detail in Section F2 below.
- The remaining allegations against HTA concern HTA's design (or their failure to integrate the design of others) and their failure to inspect the works. There is no pleaded case against HTA in relation to pre-contact advice, or the administration of the contract between Mr McGlinn and Waltham. There is no such pleaded case against WL either.
- Accordingly, although I have concluded, for the reasons set out in this Section, that the original contractual/project management structure in respect of the Maison d'Or project was fundamentally flawed, and I have noted that this opinion is one that is shared, amongst others, by Mr Jowett and Mr Tanner, I must bear in mind that, apart from the significant allegations against HTA concerning the absence of a specification, these major failings are not said to be the responsibility of any of the Defendants. Thus I must consider the individual allegations of defective specification and/or design and/or inspection against the background that the unsatisfactory circumstances in which they were carrying out their obligations are not said by Mr McGlinn to be the responsibility of any of the three Defendants involved in this trial.
E HTA'S CONTRACTUAL OBLIGATIONS
E1 The History of the Pleaded Allegations
- Mr McGlinn's original claim against HTA was based on the alleged incorporation into their retainer of the RIBA document, the Standard Form of Agreement for the Appointment of an Architect (SFA/92). It was Mr McGlinn's pleaded case that SFA/92 was provided by Mr Thomas to Mr McGlinn in 1998 and that the parties conducted themselves thereafter on the basis that these terms were incorporated. By their defence, HTA admitted the incorporation of SFA/92, and indeed HTA sought to rely on particular provisions of SFA/92 as part of that defence.
- A month before the trial, in September 2006, Mr McGlinn sought, and was granted, permission to re-re-amend his Particulars of Claim. One of those re-amendments, to which HTA did not object, was the deletion of the entire case based on SFA/92. Instead, it was now asserted by Mr McGlinn that his contract with HTA incorporated the 'Architect's Appointment' document published by the RIBA, sometimes known as the 'Blue Book', and dating back to 1982.
- In their re-amended defence, in response to this allegation, HTA also deleted their references to, and reliance upon, SFA/92. Instead paragraphs 13 and 14 of HTA's re-amended defence read as follows:
"As to paragraphs 20 and 22-25:
13.1 By providing the RIBA booklet to Mr McGlinn, HT advised him in writing:-
13.1.1 that it was advisable to use a standard form of appointment
13.1.2 what standard forms of appointment were available
13.1.3 what services an architect would normally provide
13.1.4 that it was in his interests that the appointment should define and record precisely the architectural services to be provided and identify associated costs, fees and procedures.
13.2 Mr McGlinn chose not to accept that advice and not to enter into any formal agreement defining the architectural services to be provided or the associated costs, fees and procedures. In fact, Mr McGlinn expressly indicated orally to Mr Hugh Thomas of HT that he was not interested in formal contractual arrangements.
13.3 Instead, HT's engagement proceeded in a wholly informal and flexible manner, with HT undertaking such duties as they reasonably understood Mr McGlinn to require of them from time to time.
13.4 Moreover, the scope of the project altered with the passage of time. Mr McGlinn told Mr Hugh Thomas that the interior design would be done by Disdale, as a result of which HT did not envisage being involved with the project after the shell of the building had been completed. In the event, however, HT were drawn into liaising with Disdale on various matters of fit-out.
14. It is denied, if intended to be alleged, that HT were contractually obliged to Mr McGlinn to perform the whole of the Preliminary and Basic Services listed in Part 1, being the services which an architect would normally provide. The scope of the services undertaken by HT was not normal. By way of example, HT did not undertake the following normal services:-
14.1 advise on and obtain the client's approval to a list of tenderers
14.2 invite tenders from approved contractors
14.3 appraise and advise on tenders submitted
14.4 advise the client on the appointment of the contractor and on the responsibilities of the client, contractor and architect under the terms of the building contract
14.5 administer the terms of the building contract during operations on site
14.6 administer the terms of the building contract relating to the completion of the works.
15. It is denied that HT have an obligation to carry out the duties at work stage E paragraphs 1.13 and 1.15 and at work stage K paragraph 1.22, beyond what they actually did.
16. As regards work stage K, paragraph 1.22, HT on their visits to site inspected generally the progress and quality of the works so far as the same were in implementation of HT's design and had no further obligation."
- Accordingly, the late amendments by both sides have widened, rather than narrowed, the scope of the dispute between them as to the relevant terms of HTA's appointment. Whilst they are agreed that SFA/92 was not incorporated into HTA's contract, they are agreed on little else. In particular, it appears that Mr McGlinn contends for the wholesale incorporation of the Architect's Appointment document, whilst HTA argue that their role was essentially limited to taking reasonable care in carrying out the particular (and limited) tasks which HTA allege that they were asked to perform, but nothing beyond that.
- An additional complication, which I should mention at this stage, concerns the Scott Schedule. The individual breaches of contract alleged against HTA are set out by reference to SFA/92, the terms which everyone now agrees are irrelevant. There is no pleaded case in the Scott Schedule by reference to the Architect's Appointment document, which is the relevant document. Whilst, as Mr Salisbury (HTA's expert witness) pointed out, this omission does not make any difference in respect of the duty or standard to which HTA were obliged to perform their services, it may well affect a proper appreciation of what those services were said to be.
E2 Relevant Events
- The relevant events in respect of HTA's engagement are few in number. A detailed analysis of them is made more difficult by Mr McGlinn's poor memory, and the absence of any evidence at all from Mr Thomas himself. For these reasons, I can make no findings on what might have been said at the meeting between the two men on 8 August 1997, or subsequently. The following paragraphs are therefore based almost exclusively on the documents.
- On 12 August 1997 Mr Thomas, on behalf of HTA, wrote to Mr McGlinn. This was at a time when, according to the letter, Mr McGlinn was considering asking HTA to be the architects for what became the Maison d'Or project. The relevant part of the letter reads as follows:
"As to fees, I have already given you the RIBA Guidance for Clients on Fees booklet, but as you are in France I have also included in this fax some extracts for your ease."
The rest of the letter was principally concerned with the level of fees that HTA might charge as a percentage of the total cost, and the relevant hourly charges for the partner, associate and the like. There were, however, a number of references in the letter to "RIBA Stages A and B" and "design stages C and D".
- These references were explained by the extracts from the RIBA documentation which Mr Thomas sent with the fax. It is agreed that these extracts came from the Architect's Appointment documentation, first produced by the RIBA in 1982 and subsequently updated, most recently in 1990. Although, by the time the fax was sent, the Architect's Appointment document had been superseded by SFA/92, it was extracts from the older document which Mr Thomas sent to Mr McGlinn that summer.
- I should also note that the fax was wrong to suggest that these extracts came from the RIBA Guidance for Clients on Fees booklet, which was an entirely separate document, and which had apparently already been given to Mr McGlinn by Mr Thomas. As I have already noted, Mr McGlinn could not remember that incident, and the booklet is irrelevant to the issue of HTA's obligations.
- The extracts that were sent with the fax are therefore very important. They comprised Part 1 of the Architect's Appointment, and Part 4. Part 4 was solely concerned with the calculation of fees. Part 1 described the Preliminary and Basic Services which an architect would normally provide. Thus, Work Stage A is inception and Work Stage B is feasibility: those are the two preliminary services. The basic services cover Work Stage C (outline proposals), Work Stage D (scheme design), Work Stage E (detailed design), Work Stages F and G (production information and bills of quantities), Work Stage H (tender action), Work Stage J (project planning), Work Stage K (operations on site) and Work Stage L (completion).
- There was apparently no further discussion or exchange of letters between anybody at HTA and Mr McGlinn (or anybody on his behalf) as to the precise services which HTA would provide. It appears that HTA's fees were calculated in accordance with the Architect's Appointment: their invoices (which were the subject of a helpful schedule prepared during the trial by Mr Selby) make a number of references to Work Stages A-G inclusive (ie, from inception down to the production of a detailed design). It also appears that, once it became apparent that HTA would have to co-ordinate the designs of, for instance, TDD, an additional fee was sought from Mr McGlinn, and paid by him, for that service.
- At a meeting in December 1998, it is suggested that Mr McGlinn issued express instructions forbidding HTA to issue any instructions on his behalf. The high watermark of this evidence came from Mr Thornton who said, in an apparent reference to the meeting on 14 December (paragraphs 59 and 64 above):
"At the second meeting in December 1998, I recall that Mr McGlinn said, in what I thought was a rude manner, that Walthams were not to take instructions from Huw Thomas. He said that instructions were to come from himself, or Terrence Disdale or Mike Richards of Wilson Large. I recall that Terrence Disdale, Mike Richards and Robert Prinn were present at the meeting."
- This point was put to Mr McGlinn during his cross-examination. He denied saying it. He said:
"I would not have said that, and Mr Disdale had no he was just there to I asked him, Mr Thomas, if he would not mind working with Mr Disdale, who I had worked with before, and just let him make a few suggestions, but not order him to do anything.
Q: So you are saying that Mr Thomas' account and Mr Thornton's account and Mr Richards' account of this meeting are not true?
A: If that be it, yes.
Q: You see, the truth is, you were quite emphatic that you would not have Mr Thomas giving instructions to team members or the contractor.
A: No."
- Whatever role Mr McGlinn envisaged for TDD at the outset, it is plain that they rapidly moved far beyond "making a few suggestions". Indeed, it appears that, by 2000, TDD were responsible for all matters concerning the finish and fit-out of the property. There are numerous examples of TDD giving instructions direct to Waltham without HTA's knowledge and/or without HTA's involvement. Indeed, it appears that, by early 2001, TDD were more concerned that HTA might issue instructions without their approval rather than the other way round: see paragraph 206 below.
E3 The Terms Of HTA's Appointment
E3.1 General
- The principal dispute between Mr McGlinn and HTA in respect of HTA's appointment is the precise nature and extent of the services which HTA agreed to provide. There is no dispute that HTA had to exercise reasonable skill and care in providing their services to Mr McGlinn. The question is: what were those services?
- It is submitted on behalf of Mr McGlinn that the services which HTA were to provide were those that were set out in Part 1 of the Architect's Appointment document attached to the fax of 12 August 1997. HTA, on the other hand, say that this fax was simply an indication of the services that an architect might normally provide and that, by sending him this extract, HTA were advising Mr McGlinn that it was in his interests that the appointment should define and record precisely the architectural services to be provided. They say that, in fact, no contract for these services was ever agreed.
- I consider that HTA's pleaded case on this point, supported as it is by no oral evidence whatsoever, is unsustainable. I find that the sending of the document on 12 August 1997 was a clear indication by Mr Thomas that HTA were proposing to carry out the Work Stages identified in the Architect's Appointment. The letter is otherwise meaningless. The references in the letter to the percentage fees are expressly made by reference to the Work Stages in the Architect's Appointment, which seems to me to be a clear indication that these would at least in general terms - be the services that HTA would provide. If Mr Thomas had wanted to say that the letter should be given a different meaning, he could have given evidence to that effect. The obvious inference to be drawn from his failure to do so is that such an argument was rightly recognised by HTA as hopeless.
- I should record that, as a result of his poor memory and his lack of interest in the detail, Mr McGlinn accepted that he was quite unable to say exactly what agreement he had with HTA. That is one of the reasons why the documents referred to above are so important. In addition, there are other relevant documents, in the form of HTA's regular fee notes, which confirm that, generally, HTA were purporting to perform the Work Stages identified in the Architect's Appointment. Throughout their involvement on this project, HTA submitted fee notes which made express reference to those Work Stages. They also wrote letters to other parties, including Centurion, which made express reference to the RIBA fee scales and Work Stages. In those circumstances, it seems to me that these fee notes and other letters could only have confirmed to Mr McGlinn that HTA were carrying out the services set out in the original document sent on 12 August 1997.
- Of course, it is clear that there were certain elements of the Work Stages which HTA were not required to, and did not, perform. For example, the matters listed at paragraphs 14.1 14.4 of HTA's re-amended defence (paragraph 168 above) were matters which were all dealt with by WL, not HTA. Accordingly, my general conclusion is that HTA were obliged to carry out the services set out in the Architect's Appointment, save where it is clear from the evidence that those services were either not required at all or were required to be performed (or were performed) by some other professional or specialist contractor. Thus, it is appropriate to go on to consider in detail particular aspects of the case against HTA, each of which can be traced back to the uncertainty surrounding their appointment and the services which they were to provide. The particular areas with which I deal below are:
a) The absence of a specification (Section E3.2 below);
b) The vexed question of quality standards (Section E3.3 below);
c) HTA's design obligations, including their obligation to co-ordinate the designs of others (Section E3.4 below);
d) HTA's obligations as to inspection (Sections E3.5 and E3.8 below);
e) HTA's power to issue instructions (Section E3.6 below);
f) HTA's role as administrators of the building contract (Section E3.7 below).
E3.2 The Absence of a Specification
- Work Stage C of the Architect's Appointment requires the architect to prepare outline proposals, and Work Stage D requires the architect to develop a scheme design. Work Stage E requires the architect to develop that scheme design and to obtain the client's approval of the type of construction, quality of materials and standard of workmanship to be provided by the contractor. Work Stages F and G require the architect to prepare production information including drawings, schedules and specification of materials and workmanship and to provide information for the Bills of Quantities.
- As noted above, HTA had made it plain to Mr McGlinn, through their regular invoices, that they had undertaken all these Work Stages. There was no other professional who could possibly have produced most of these documents; whilst the Bills were for WL to prepare, the outline proposal, the scheme design, the detail design, and, in particular, the preparation, under Work Stages F and G, of drawings, schedules and a specification of materials and workmanship, were all plainly for HTA to produce. The only fair reading of their invoices was that they had carried out this work. In this regard, the cross-examination of Mr Salisbury on day 14 was extremely revealing. He was asked about the Work Stages:
"Q: They also require the architect to prepare a specification which reflects the requirements which have been identified?
A: I cannot answer the last bit, 'have been identified', but I can say that in general terms, what you have said is contained within the wording of the document [the Architect's Appointment] ...
Q: On the face of the analysis that Mr Selby has prepared, HTA in this case have charged for the completion of work stages A to G, have they not?
A: On the face of what Mr Selby has prepared, yes.
Q: You do not, I take it from your set of answers, regard the document which we find at G4/1069 [the Building Regulation Notes] as a specification from which a building could be carried out?
A:
This is not a building specification; this is a note for the States of Jersey."
- Accordingly, it seems to me clear that HTA were obliged to provide a specification in respect of these works. Equally clearly, they did not provide such a specification. No explanation was proffered as to why it was that HTA, the architects on this project, failed to provide such a basic document: Mr Thornton, the only HTA witness, agreed that, by the time his involvement started, Work Stages A-G had been completed. I draw the necessary adverse inference from the absence of any evidence from Mr Thomas, the only witness who could have shed any light on this point. I find that this was a major failing on the part of HTA.
E3.3 Quality Standards
- There seems to be no dispute between the parties that HTA were obliged generally to produce a design and, later, to inspect the works on site with the aim of producing a very high standard of finished product. Mr Thornton made plain that he always endeavoured to ensure that any completed project on which he worked was to a very high standard, although he said that, in this respect, he did not differentiate between Maison d'Or and any other property on which he might be working. However, I find that it was clear to HTA from the outset that this was a luxury house, being designed and built for a multi-millionaire, and nobody, certainly not anyone at HTA, can have been under any illusions that the completed work was to be of a very high standard.
- A related question which immediately arises is whether HTA adequately conveyed the need for this very high standard to Waltham. That is a difficult question for HTA to answer satisfactorily, given their failure to provide a specification, in which such a standard could have been clearly set out. The evidence from both Mr Jowett and Mr Salisbury was that, if a very high standard was required, it needed to be spelt out in the specification. Although the Bills contained some provisions relevant to the standard of workmanship (see Section C4 above) I consider that these clauses were couched in general terms and did not always clearly set out the very high standards that were required. Therefore, so it seems to me, the success (or failure) which HTA had in conveying to Waltham the very high standard required has to be judged principally against the finished product; in other words, the lack of a written specification can only emphasise the importance of HTA's periodic inspections.
- I should say that the obligation on the part of HTA to design and inspect with a high standard of finished product in mind was not without a practical limit. Their obligation did not extend to ensuring the completion of a building that was, in every possible way, perfect. A telling passage of evidence on this topic took place on Day 7, when Mr Thornton was being asked about alleged defects in the joinery in the master bedroom. He complained at one point that what he was being shown was one saw cut, on one louvre, to one cupboard door in the dressing room. He said:
"I think they could do some work to make it acceptable. I certainly would not reject the whole door out of hand for that saw mark. I know this room and I know the context of that, and I know what we are looking at there is a pretty microscopic mark on that door
Could we not see this room in context, so at least people have an idea of how many separate louvres are in that room? Probably, I do not know, 400, 500, and you have brought up one, which is probably smaller than the end of the white bit on my fingertip, to judge the whole of the room. I just find that is quite it does not put the thing into context, does it?"
- Accordingly, although I am in no doubt that HTA had to produce a design and inspection service with the aim of producing a very high quality finished building, this obligation did not extend to the production of a perfect building. It did not extend to the boat standard.
- There are a number of other reasons why I consider that Mr McGlinn's case as to the standard of finish that he was entitled to expect was, at least in some instances, over-stated. First, it was apparent from the evidence of the meeting on 17 May 2002, and a number of the witnesses (including Mr Dobbs of Charter) that a perfect standard of interior fitting and finish could only be provided by boat-fitting specialists, not construction contractors: see Section C5 above. Neither HTA, nor any of the other consultants, ever made any such arrangements, which indicates that they did not understand that a perfect standard was required. Secondly, if such a standard had been required by Mr McGlinn, it would have been recorded, because it was so unusual. It was not. Thirdly, it would mean that HTA, DJH and WL each fundamentally misunderstood their instructions from the start, and I am not prepared to make such a finding on the evidence.
- Accordingly, I find that at no time in 1997-1999 did Mr McGlinn require HTA, DJH or WL to produce or work to the boat standard, as opposed to a very high standard of finish. Perhaps he meant to; perhaps he thought that, because Mr Thomas had seen his yacht, however briefly, it was understood. But I find that he never expressly asked for such a standard and neither Mr Thomas, nor any of the other professionals, understood that a perfect standard was required.
- Confirmation of this finding can be found in the evidence concerning the reduction in the scope of works in late 1998. I have outlined the relevant facts in Section C7 above. I consider that it is inconceivable that Mr McGlinn would have requested WL to make the necessary reductions in scope, and then accepted the significant reduction in Waltham's price, without knowing that this would have had a clear effect on the quality of the finished product. As he himself agreed in cross-examination, he fully understood the correlation between quality and cost. The reductions were not inconsistent with the provision of a completed house of a very high standard. They were, however, inconsistent with the boat standard.
- In this context, there was a revealing exchange during Mr McGlinn's cross-examination:
"Q: From the nature of the savings that we have just looked at together, Mr Richards and Mr Hartigan and Mr Thomas, who were your team at the time, seemed to have been wholly unaware of your requirement for a specially high standard of finish like on a luxury boat, were they not?
A: It would appear so.
Q: If your case were true, you would have protested, would you not, saying you could not jeopardise your express and repeated requirements that the quality be the very highest, as on a luxury boat?
A: I can only assume I was away at the time and did not read this or read that into it".
In fact, Mr McGlinn expressly approved the savings and made no point about their effect upon the perfect standard of finish that he allegedly required. I consider that that is good evidence for the proposition that, although he required a very high standard, he did not require that it had to be effectively perfect.
- My conclusion that HTA had to design and inspect with a very high standard in mind, but not to the boat standard, is important in three ways. First, it means that, in the weeks and months leading up to Waltham's departure from site, Mr McGlinn, through Mr Tanner, was endeavouring to impose upon Waltham a standard of finish which was, potentially at any rate, more onerous than the standard that he was entitled to expect. Indeed, Mr McGlinn accepted this in the following passage in his cross-examination:
"Q: You wanted the finishes to have the same sort of look as a luxury yacht.
A: The same quality as a luxury yacht.
Q: When you realised the house was not going to look how you wanted it, you stopped paying the contractors, did you not?
A: I stopped the project yes ... when it was not finished.
Q: You stopped paying the contractors, did you not?
A: Yes, in the end, I did."
- This goes some way towards explaining why the frustrations towards the end of 2001 were not all on Mr McGlinn's side. Secondly, as a logical consequence of this, when the complaints were being formulated against HTA, one of the principal criticisms made by Mr Dobbs of Charter, and others, was that "the consultants didn't pass on the requirements of a 'boat standard' finish to the contactor": see Charter's notes of the meeting on 17 May 2002. This statement incorrectly assumed that Mr McGlinn had asked for the boat standard in the first place. Accordingly, I consider that, to this extent at least, the benchmark to which Charter and others were working when investigating the building was not entirely correct.
- The third point, of course, is that there are some Items in the Scott Schedule which may be affected by my conclusion that the boat standard did not form part of Mr McGlinn's instructions. They are dealt with in Section F2 below.
- Accordingly I find that HTA were obliged to design and inspect with a very high standard of finish in mind. That is of course linked to their failure to provide a specification for the works. If they had provided such a document, it would have made clear the very high standards of workmanship expected of the contractor in a way that the Approximate Bills do not fully make clear.
- Thus the failure to provide a specification had a particular consequence; it resulted in a failure by HTA to spell out in clear terms to Waltham the very high standard required by Mr McGlinn. In consequence of this, as I have set out in paragraph 189 above, the periodic inspections to be made by HTA were of particular significance, because this was the only way in practice in which HTA intended to get across to Waltham the standard required.
E3.4 Design
(a) HTA's Own Design
- At the time of the letter of August 1997, HTA's proposed design obligations were essentially unlimited; in other words, there was nothing in that letter which would have indicated to Mr McGlinn that HTA were not going to be responsible for all of the design. However, it is equally clear that, following the engagement of DJH (see Section G below) HTA could no longer be regarded as responsible for the structural engineering design and the mechanical and electrical design. Those were aspects of the design of Maison d'Or for which DJH would be responsible. HTA retained a responsibility to co-ordinate the DJH structural design, and the DJH M&E design, so as to ensure that it did not clash with their own design work. But, beyond that straightforward co-ordination obligation, HTA no longer had any primary responsibility for either the structural engineering or the mechanical and electrical aspects of the design process.
(b) Interiors/Finishes Design
- On the evidence before me, I am in no doubt that Mr McGlinn wanted TDD to be responsible for the interiors and finishes at the property: see paragraph 34 above. It appears that Mr McGlinn did not himself consider that this was a particularly extensive task but thought that, since Mr Disdale knew his likes and dislikes, he was the obvious person to involve in this aspect of the process. I also find on the evidence that Mr McGlinn under-estimated just how much design/specification work TDD were going to have to do relating to the interior of the property.
- That TDD were primarily responsible for the design and specification of the interiors and finishes at the property, and that this was a major task, can be seen in three different elements of the story of Maison d'Or. First, I find that Mr McGlinn made clear that only TDD could issue instructions to the contractor in respect of the interiors and finishes at Maison d'Or. I consider that the effect of Mr Thornton's evidence concerning the meeting in December (probably on the 14th) was that Mr McGlinn was adamant that only Mr Disdale could issue instructions in respect of interiors/finishes. I accept that evidence. Moreover Mr Thornton's recollection is the logical consequence of Mr Disdale's evidence that "I got his [Mr McGlinn's] agreement on things", in a way that was simply not open to Mr Thomas, to whom Mr McGlinn did not even speak.
- Secondly, it is clear that, between 1999 and 2001, TDD issued numerous instructions, drawings and the like to Waltham in respect of interiors and finishes. A number of examples of the nature and extent of these instructions were introduced into the evidence. It is unnecessary for me to set them out at length. The following evidence is of particular importance:
a) The letter from DJH to Mr Richards of 19 April 1999 which contained numerous references to instructions, requests and confirmations from TDD. In his oral evidence, Mr Disdale accepted that he was acting as the interior designer and giving instructions on Mr McGlinn's behalf;
b) Mr Disdale's acceptance that, throughout the project, TDD made many sketches, drawings and traces on Mr McGlinn's behalf, which were then passed on to Waltham;
c) Mr Disdale's acceptance that the scope of TDD's role was extensive. Mr Disdale agreed with the proposition put to him in cross-examination that there were interior design decisions that had to be made concerning the finishes and fit-out for every room in the house and the separate apartment.
- On the point about the scope of TDD's work, there was also clear evidence from Mr Berryman, who worked for TDD, to the effect that they produced a wide range of drawings on behalf of Mr McGlinn. Some of these contained very precise measurements, down to the nearest millimetre. Although Mr Berryman said that he thought that these drawings would be worked up into other drawings, perhaps by the architect, he agreed that, where the TDD drawings gave measurements in millimetres, those drawings were intended to be followed precisely. On a number of occasions he said that the TDD drawings were showing the aesthetic detail, rather than construction information, but he agreed that what the architect or builder did with the drawings would be a matter for them. Mr Berryman also confirmed, by reference to a number of contemporary documents, that TDD issued instructions to HTA which HTA were expected to follow. He said that all matters of "aesthetics, finishes and layout" came from TDD. Such instructions were not limited to HTA and Waltham; other documents demonstrated that, for example, Mr Berryman gave direct instructions, on behalf of Mr McGlinn, to the electrical sub-contractors, on an occasion when neither HTA nor WL were present. Mr Berryman accepted that, on this example, TDD had the authority to give instructions direct to the contractor and would leave it to the contractor to tell the architect what was going on.
- Thirdly, it is clear that, on at least one occasion, TDD complained that there was a risk that HTA were issuing instructions to Waltham without first getting TDD's approval for such instructions. This was demonstrated by a fax dated 26 January 2001 from TDD to WL. In this fax TDD expressed their concern that HTA "do not need our approval for any work carried out on site". Mr Berryman confirmed in his evidence that, on anything aesthetic, HTA required TDD's approval and that included small details like the positions of light switches, or indeed anything else which impinged on any aesthetic considerations. It seems to me that this is the clearest possible evidence that, in relation to the interiors and finishes of Maison d'Or, it was not HTA who were controlling TDD, but the other way round.
- In addition, the evidence demonstrated that TDD's involvement was not limited to pure aesthetics. For example, they suggested the replacement of stone in the floor of the garage with durable cobblestone because that would be better able to stand up to leaking petrol. Mr Berryman accepted that, on that point, therefore, TDD had applied their mind to the technical suitability of the materials, rather than just a matter of aesthetics. He also confirmed that, on that point, TDD's advice had been accepted.
- On the evidence, however, HTA's contractual obligations in respect of the design and specification of the finishes and interiors of the property were not entirely abandoned to TDD. First, it is clear to me that HTA had a similar co-ordination role to that which they performed in respect of the DJH structural and M&E design. Indeed, from the fee notes submitted by HTA, such as the note dated 1 May 1999, it can be seen that, although Mr McGlinn could not remember it, HTA charged an additional fee for co-ordinating TDD's interior design with their own design work. They therefore had an obligation to carry out the co-ordination of TDD's design with their own with reasonable skill and care.
- Secondly, I find that HTA's co-ordination role in respect of the interiors and finishes was, in practice, more onerous than in respect of, say, the structural work, because HTA had to form a view as to whether a particular TDD drawing could be worked to by Waltham and, if not, what else might be required in order for Waltham to build out the particular design element in question. There was inevitably a blurred line of demarcation between some features of the general design (which were HTA's responsibility) and aspects of the interiors/finishes (which were TDD's responsibility). As the architects, it was HTA's job to take reasonable steps to check with Waltham that they had all the information they reasonably required relating to any aspect of the interiors/finishes.
- Thirdly, I consider that HTA, who had a clear obligation to make periodic inspections generally, would have been bound to have included all the interiors and finishes of Maison d'Or in their inspections. Mr Thornton did not dispute this; indeed, later in the project, it was clear that his inspections were focussed almost entirely upon the interiors and the finishes.
- For the avoidance of doubt, I reject HTA's case that, because of the tender reductions in respect of the kitchen fittings and utility fittings in November 1998, the scheme for Maison d'Or at the end of 1998 involved a £1.6 million project to build the shell of the property, with no interior fittings or finishes at all. First, I do not consider that the omission of the kitchen and fittings meant that the property would simply have been a shell. Secondly, I note that when that point was put to Mr McGlinn he (not unreasonably) responded that "that was not my intention". He wanted a house to live in; that must have included a kitchen. Thirdly, I find that if HTA had seriously thought that, as a result of the reductions, Maison d'Or was simply going to be a shell, they should have pointed that out expressly to Mr McGlinn at the time. They did not do so.
(c) Summary
- HTA were not responsible for the detailed structural design, the detailed M&E design, and the detailed design of the interiors and finishes. They were, however, responsible for the co-ordination of those three aspects of the design with their own work. If there was a clash between any of those three aspects of the design, and HTA's own design work, then HTA had both to point out the clash and, perhaps in conjunction with the other professional involved, they had to endeavour to find a way to resolve it. This task was particularly important in relation to the interiors/finishes, for the reasons noted above. They were obliged to carry out their own design work, and their co-ordination role, exercising reasonable skill and care.
E3.5 Periodic Inspection
(a) The Law
- The classic statement of the architect's obligations to his client once the works have started on site is set out in the judgment of His Honour Judge Stabb QC, the former Senior Official Referee, in Sutcliffe v Chippendale & Edmondson (A Firm) [1971] 18 BLR 149. Although this case went to the Court of Appeal and the House of Lords on a different point, Judge Stabb's analysis of an architect's sitebased duties is the appropriate starting-point for any consideration of what supervision and inspection might actually involve. The relevant passages of his judgment are, I think, these:
"(a) Generally: It can be said that when a person engages an architect in relation to the building of a house, he is entitled to expect that the architect will perform his duties in such a manner as to safeguard his interests and that he will do all that is reasonably within his power to ensure that the work is properly and expeditiously carried out, so as to achieve the end result as contemplated by the contract. In particular the building owner is entitled to expect his architect so to administer the contract and supervise the work, as to ensure, as far as is reasonably possible, that the quality of work matches up to the standard contemplated.
(b) Supervision: The RIBA conditions of engagement state that the architect shall give such periodical supervision and inspection as may be necessary to ensure that the works are being executed in general accordance with the contract, and that constant supervision does not form part of the duties which he undertakes. It has often recently been said that as the architect now frequently has the power by means of final certificate of freeing the contractor from liability for defects, he, the architect, is required to accept a greater responsibility in his supervisory capacity in the detection of defective work during the progress of the contract. Mr Simpson agreed that one reason for supervision was to ensure that the defective work was spotted at an early stage, and indeed noted and subsequently reflected in an interim certificate if not previously remedied. I think that the degree of supervision required of an architect must be governed to some extent by his confidence in the contractor. If and when something occurs which should indicate to him a lack of competence in the contractor, then, in the interests of his employer, the standard of his supervision should be higher. No one suggests that the architect is required to tell a contractor how his work is to be done, nor is the architect responsible for the manner in which the contractor does the work. What his supervisory duty does require of him is to follow the progress of the work and to take steps to see that those works comply with the general requirements of the contract in specification and quality. If he should fail to exercise his professional care and skill in this respect, he would be liable to his employer for any damage attributable to that failure."
- The Judge went on to consider the question of interim certificates and said:
"Furthermore, since everyone agreed that the quality of the work was always the responsibility of the architect and never that of the quantity surveyor and since work properly executed is the work for which a progress payment is being recommended, I think that the architect is in duty bound to notify the quantity surveyor in advance of any work which he, the architect, classifies as not properly executed, so as to give the quantity surveyor the opportunity of excluding it."
- A number of points need to be made about these passages. First, they are concerned with an architect's obligation to 'supervise and inspect' which is what the old RIBA terms required. The obligation to supervise has now gone; there is now only an obligation to make periodic inspections. That is a potentially important reduction in the scope of an architect's services. Secondly, Judge Stabb's comments assumed, quite reasonably, that the architect would be closely involved in the valuation process. In many modern construction contracts, that is not the case and there can be a blurring of responsibility for interim valuations/certificates as between the architect and the quantity surveyor. That is a dispute in the present case to which I return below.
- In more recent times, the role of the architect in inspecting the work has been the subject of surprisingly few cases. Corfield v Grant [1992] 29 Con LR 58 was a case concerned with supervision, not inspection. In Consarc Design Ltd v Hutch Investments Ltd [2002] 83 Con LR 36, His Honour Judge Bowsher QC, indicated that the obligation to inspect was somewhat vague and it was difficult to know in real terms what was required, although, as he put it, "what is absolutely clear is that the architect does not guarantee that his inspection will reveal or prevent all defective work". I respectfully agree with that statement. I also respectfully agree with Judge Bowsher's adoption and approval of the relevant passages concerned with inspection in (what is now) the Fifth Edition of Jackson & Powell On Professional Negligence at paragraphs 8-236 to 8-249.
- In my judgment, perhaps the most helpful recent guidance in respect of the duty to inspect can be found in the judgment of His Honour Judge Hicks QC in George Fischer Holdings Ltd v Multi Design Consultants Ltd [1998] 61 Con LR 85. In that case, the consultant with the inspection obligation had defended himself on the basis that, on the balance of probabilities, he would not have seen the defective joints on the roof being formed and, if he had been there, the workmen would have taken particular care to get those particular joints right. Judge Hicks said:
"That defence fails at every level. As to missing the relevant phase of the operation, first, it is clear on the evidence that on visits of the frequency and length which Mr Gardner says he carried out elsewhere on site, and even without any special attention to this point, the likelihood is that he would on many occasions have had the opportunity of seeing lap joints formed and sealed. Secondly, the formation of the joints was so obviously crucial that even if the overall frequency of visits was not increased special attention should have been paid to ensuring that they fully covered this aspect. But thirdly, since this whole discussion predicates the acceptance by DLE of the very risky and inadvisable inclusion of lap joints in such shallow slopes, it was incumbent upon them to exercise the closest and most rigorous inspection and supervision of the process. The last point also disposes of the suggestion that workmen will 'put on a show' either they cannot do that all the time, or if they do, that achieves the object anyway. Moreover it is in any event part of the necessary skill of a competent inspecting officer to detect and make allowances for such behaviour."
(b) Summary of Applicable Principles
- In the light of these various authorities, I would summarise the legal principles relating to an architect's obligation to inspect as follows:
a) The frequency and duration of inspections should be tailored to the nature of the works going on at site from time to time: see Corfield v Grant and paragraph 8-240 of Jackson & Powell. Thus it seems to me that it is not enough for the inspecting professional religiously to carry out an inspection of the work either before or after the fortnightly or monthly site meetings, and not otherwise. The dates of such site meetings may well have been arranged some time in advance, without any reference to the particular elements of work being progressed on site at the time. Moreover, if inspections are confined to the fortnightly or monthly site meetings, the contractor will know that, at all other times, his work will effectively remain safe from inspection.
b) Depending on the importance of the particular element or stage of the works, the inspecting professional can instruct the contractor not to cover up the relevant elements of the work until they have been inspected: see Florida Hotels Pty Ltd v Mayo [1965] 113 C.L.R. 588 and paragraph 8-241 of Jackson & Powell. However, it seems to me that such a situation would be unlikely to arise in most cases because, if the inspecting officer is carrying out inspections which are tailored to the nature of the works proceeding on site at any particular time, he will have timed his inspections in such a manner as to avoid affecting the progress of those works.
c) The mere fact that defective work is carried out and covered up between inspections will not, therefore, automatically amount to a defence to an alleged failure on the part of the architect to carry out proper inspections; that will depend on a variety of matters, including the inspecting officer's reasonable contemplation of what was being carried out on site at the time, the importance of the element of work in question, and the confidence that the architect may have in the contractor's overall competence: see Sutcliffe v Chippendale and paragraph 8-242 of Jackson & Powell.
d) If the element of the work is important because it is going to be repeated throughout one significant part of the building, such as the construction of a proprietary product or the achievement of a particular standard of finish to one element of the work common to every room, then the inspecting professional should ensure that he has seen that element of the work in the early course of construction/assembly so as to form a view as to the contractor's ability to carry out that particular task: see George Fischer. That accords with Mr Jowett's evidence in the present case, with which Mr Salisbury agreed.
e) However, even then, reasonable examination of the works does not require the inspector to go into every matter in detail; indeed, it is almost inevitable that some defects will escape his notice: see East Ham Corporation v Bernard Sunley [1966] AC 406 and paragraph 8-239 of Jackson & Powell.
f) It can sometimes be the case that an employer with a claim for bad workmanship against a contractor makes the same claim automatically against the inspecting officer, on the assumption that, if there is a defect, then the inspector must have been negligent or in breach of contract for missing the defect during construction. That seems to me to be a misconceived approach. The architect does not guarantee that his inspection will reveal or prevent all defective work: see Corfield v Grant. It is not appropriate to judge an architect's performance by the result achieved: see paragraph 8-238 of Jackson & Powell. To that extent, therefore, I agree with the points made in paragraphs 49 and 50 of the written opening prepared by Mr Bartlett QC and Mr Hamilton on behalf of HTA.
(c) Analysis of HTA's Inspection Obligations and General Performance
- I consider that the principles identified in paragraph 218 above applied generally to HTA's performance of their inspection obligations in the present case. HTA were obliged to inspect the works being constructed to their design in accordance with these principles. In respect of the structural works, and the M&E works, HTA's obligation to inspect was more limited. It extended to ensuring that any co-ordination issues had been properly dealt with by Waltham, and it might possibly extend to any very obvious errors in the construction of these elements, but it would not be appropriate to impose upon HTA the same inspection obligation in respect of a detailed element of the work designed by, say, the engineer, as for an element of the work which they themselves designed. It is clear that in the former case, their inspection obligation must have been much less onerous. In addition, as set out in paragraph 210 above, HTA were obliged to carry out periodic inspections in respect of the interior/finishes, notwithstanding TDD's primary design obligations.
- One particular point that I should make concerns the obligation, identified at paragraph 218(d) above, to the effect that an inspecting professional should, in appropriate circumstances, encourage the contractor to complete one particular element of the work in advance of the rest, so that it can be inspected, snagged and approved, with the aim of ensuring that that completed element of the work can then act as the benchmark for its repeated installation/construction in the rest of the property.
- It seems to me that this was an obligation which HTA did have in mind towards the end of Watham's time on site. Mr Thornton said that, in late 2001, the joinery in Bedroom 4 was used as a benchmark for the standard to be achieved, a point that Mr McGlinn confirmed. Unsurprisingly, therefore, the Scott Schedule contains no express allegations in respect of the joinery in Bedroom 4 and it was not the subject of any oral evidence at all. However, this argument cannot be taken too far. I agree with Mr Williamson QC that the decision to use Bedroom 4 in this way arose out of Mr Tanner's inspection and snagging lists of November 2001, and that, to be effective, this quality benchmark if that is what it was - should have been established some time earlier.
- I deal with HTA's administrative functions (such as they were and such as may be relevant to the allegations against them) in Section E3.7 below. That includes an analysis of their limited role in respect of the interim valuation/certification process. As to the overlap between HTA's periodic inspections and WL's role, it seems to me that HTA were obliged to point out to WL, the quantity surveyors, particular elements of defective work, depending of course on their significance or importance. It would always be a question of degree; joinery in one room that exhibited 100 various defects should be pointed out, whilst one saw cut on one louvre on one door would not be. If the defects were pointed out, it would then be for WL to take appropriate account of them when producing the interim valuations. Mr Thornton's evidence was that, when he walked round the site after the site meeting, he was accompanied by Mr Richards and a representative of Waltham, and that, during this walk about, he pointed out areas of defective work which he required the contractor to put right. He left it to Mr Richards of WL to value, if that was appropriate, those defective works for the purposes of the interim valuations. It seems to me that, in the circumstances of this case, that was a generally sufficient approach, although I regret the complete absence of any record of these conversations, and I accept that whether or not it was enough in any particular instance might depend on the facts. It is also a matter of fact as to whether, in any given instance, Mr Thornton actually gave the necessary advice to Mr Richards.
- I am less convinced about the efficacy of the general pattern of inspections undertaken by Mr Thornton. I accept Mr Williamson QC's general analysis of the progress of works on site (see Section C11 above) to the effect that the main structure of Maison d'Or was constructed between January and October 2000. This was a critical period for inspections. During that period, the inspections by Mr Thornton were monthly and there was no evidence to suggest that they were arranged at a time that was suitable for the particular progress of the works on site. On the contrary, it appears from his evidence that, in general terms, Mr Thornton routinely made his periodic inspections on the same day as the monthly meeting, and not otherwise. I consider that, in line with the point of principle at paragraph 218(a) above, that was insufficient.
- I acknowledge that, in his re-examination, Mr Thornton referred to a number of visits that he made to the site, in the company of Mr Thomas, on other occasions between the site meetings. Despite a number of questions from Mr Bartlett QC as to the purpose of these visits, Mr Thornton resolutely refused to say that these were additional inspections in accordance with his inspection obligations. On the contrary, he said that the purpose of the visits was that:
"... We were actually quite proud of that building and we were quite happy with the contractor and it was quite nice to go there and have a look round. We felt the construction of that house on that site would actually promote the practice in Jersey and we were working towards having an office actually on the island and that would have been, I do not know, sort of a flagship thing for us.
Q: When you use the expression, having a look, what were you having a look at?
A: Just at the progress of the work, what the guys were up to, what was being built. It was not so much an inspection; more of an overall look at the progress."
- Accordingly, it seems to me that, whilst Mr Thornton did make other visits to the property during the course of construction, in addition to the monthly site meetings, it is very difficult, on that evidence, to say that they were part of a carefully controlled inspection process. Accordingly I find that the only relevant periodic inspections were those carried out by Mr Thornton once a month, on the day of the site meeting which had been arranged some time before. In general terms, I find that this was too infrequent and too rigid an inspection programme.
- Another criticism of HTA's performance of their inspection obligations, which I also consider to be justified, was the complete absence of any records generated by Mr Thornton, or anyone else at HTA, of what he saw and what he said during his inspections. An inspection can only be effective if the inspector clearly identifies what defects he has seen and what he wants done about them. If there is no record of the matters noted and the directions given, it will almost inevitably create conflict months later, over precisely what was said and when. The absence of any inspection notes is only one of numerous omissions in the documents kept by HTA: I would certainly have expected to see such records on a project of this sort.
- Unusually, there are no criticisms of Waltham recorded in the site meeting minutes. Mr Williamson QC suggested to Mr Thornton that this was because Waltham wrote the minutes. Mr Thornton disagreed, saying no criticisms were minuted because none had been made. However he accepted that it was unusual for there to have been no such criticisms. I find that there must have been such criticisms, which were not minuted because Waltham were providing only very brief notes of what was said.
- In one sense, this issue was linked to the confidence that Mr Thornton had in Waltham. This was a matter that was the subject of his re-examination. He said that he did not know about Waltham prior to his involvement on this project but that, in respect of this project, he was:
"
more than pleased with the quality of the work they were doing on the site... I think they were bending over backwards to actually accommodate all the changes and re-work the house, nearly every room and every aspect of it".
He further illustrated this by saying that, such was his perception of the care that Waltham were taking on the project, that Mr Prinn had joked with him that, once Waltham eventually handed the building over for snagging, HTA would not be able to find anything amiss with the building at all. He described Mr Prinn as "an incredibly boring and meticulous man".
- It is only possible for me to say whether or not Mr Thornton was right to place such confidence in Waltham by reference to the detailed findings made below in relation to the individual Items in the Scott Schedule. In general terms, if there were only a few Items which were demonstrated to be bad work, then Mr Thornton's confidence in Waltham might have been justified; if there were a lot of serious problems, it might be thought that such confidence was misplaced. My detailed findings in respect of the items in the Scott Schedule are set out in Section F2 below.
- However, I should say at this stage that, in my judgment, Mr Thornton was overly confident in the standard of work being performed by Waltham. There were a number of important elements of this construction which I find Waltham got wrong, or where they failed to display a proper standard of workmanship and finish. I have already said that it was a mistake that Mr Thornton, who was neither a partner in, nor associate of HTA, was left to oversee this project almost on his own, and that monthly visits, telegraphed in advance, were an inadequate performance of the inspection function. It appears from the range of building defects at Maison d'Or that Waltham did not always give this project the care and attention that it deserved and, whilst the standard of much of their work was high, there were important elements of the project where it fell significantly short of what might have been expected. It was for Mr Thornton to identify those areas and to ensure that they were corrected by Waltham. In the absence of any written inspection notes or instructions to that effect, it is difficult to say that he fulfilled this general obligation.
- One of the principal debates about HTA's role in carrying out periodic inspections concerns the overlap between those inspections and the snagging process. Given the importance of that topic to the case against HTA, I have dealt with this part separately at Section E3.8 below.
E 3.6 The Power To Issue Instructions
(a) Was There A Blanket Ban On HTA Issuing Instructions?
- As noted above, it was HTA's case that, from the outset, they were effectively prevented from issuing any instructions whatsoever to the contractors, Waltham. This case is now based solely on Mr Thornton's evidence as to what was said at the meeting on 14 December 1998. As we have seen, Mr McGlinn denied articulating any such ban. Mr Disdale, who was also there, had no recollection of the meeting at all.
- I accept Mr Thornton's evidence that HTA were not permitted to issue instructions as to interiors/finishes: see the point at paragraph 203 above, which I deal with in greater detail at paragraphs 242 243 below. But, beyond that, I have concluded that, on the evidence, Mr McGlinn did not impose a blanket ban on HTA issuing any instructions at all to Waltham. There are three reasons for that. First, I consider that, if he had issued such a blanket ban, Mr McGlinn would have remembered it and, much more importantly, HTA would have been bound to have recorded it in writing. They did not do so. Secondly, if that had been Mr Thomas' evidence, he could have said so; his failure to give evidence leads me to draw the inference that he could not support such a case.
- Thirdly, as Mr Thornton accepted in cross-examination, that is not what happened in practice. On the contrary, Mr Thornton accepted that he issued a number of instructions to Waltham, which were mainly, but not exclusively, oral. His evidence on Day 6 was as follows:
"Q: Walthams issued to you, HTA, by letter and no doubt at meetings as well, numerous queries and requests for information?
A: Correct.
Q: They also issued to you requests for instructions.
A: Correct.
Q: They also ... wrote numerous letters to you, did they not, saying 'we confirm your verbal instruction to do this, that or the other'?
A: That is correct.
...
Q: It is also right, is it not, that you issued numerous instructions to the contractor verbally or orally, which he then confirmed to you in writing?
A: That is correct.
Q: That did not happen once or twice; that happened a lot.
A: A lot, yes".
Accordingly, I find there was no blanket ban imposed by Mr McGlinn on HTA issuing instructions to Waltham, because, as Mr Thornton accepted, that is precisely what HTA did.
(b) Different Types Of Instruction
- It seems to me that, in reality, there was a certain amount of confusion mainly, it must be said, within HTA - over the possible status of different types of instruction. For the present analysis, I identify four different categories of instruction which were debated in the evidence: instructions to carry out additional work, as opposed to work that formed part of the contract workscope; instructions that were in writing, as opposed to oral; instructions in respect of the interiors and finishes of the property, as opposed to, for example, the structure or the exterior detailing; and instructions to rectify defective work. I deal with each of these categories below in a way which I hope explains HTA's role in relation to the issuing of instructions and the practical limitations that existed upon it.
(c) Variations/Confirmation of Existing Instructions
- Mr Thornton accepted in cross-examination that, in a normal situation, the architect had wide power to issue instructions but that, pursuant to the RIBA conditions, he was not entitled to instruct additional work or vary the existing work scope without the consent of his client. Equally, it appeared to be accepted by Mr Thornton that instructions which did not involve additional work or variations would be issued by HTA as a matter of course in order to meet the contractor's queries and keep the project on track.
- I find that in the performance of their role as architects on the Maison d'Or project, HTA were obliged to and more importantly did issue all kinds of instructions to the contractors, Waltham, as the project progressed, including variations. Whilst it appears that many (but not all) of these instructions were answers to queries and confirmation as to detail, and thus did not involve variations or changes to the design, that was not exclusively so. Where instructions did involve variations or changes to the design, HTA were obliged to obtain the permission of Mr McGlinn or his representatives before issuing those instructions, although I accept that Mr McGlinn's physical remoteness from the project, and his refusal to speak directly with Mr Thomas from January 1999 onwards, meant that a certain amount of leeway/discretion was plainly available to HTA in resolving such matters. They did not have to seek his approval for minor or insignificant variations.
(d) Oral/Written
- In his cross-examination on Day 8, Mr Thornton appeared at one point to draw a distinction between written and oral instructions. He said he distinguished between "issuing instructions" on the one hand and "instructing the contractor" on the other hand. He considered that issuing instructions meant issuing written instructions in the standard RIBA form, which he did not do, whilst instructing the contractor merely involved what he described as "a verbal thing or something that would be brought up in the minutes". The suggestion, I think, was that HTA were entitled to give oral instructions to the contractor but, in some way, they could not issue written or formal instructions.
- To the extent that this distinction was maintained by HTA, I reject it. It is plainly unworkable. Either HTA had the authority to issue instructions, or they did not: the form in which those instructions were issued must be wholly irrelevant. Indeed, in the present case, the form was clearly immaterial because, although Mr Thornton stuck to HTA's curious policy of always instructing the contractor verbally, and never issuing formal AI's, Waltham merely wrote back, confirming in writing his previous verbal instruction. All of the JCT Standard Forms of Contract make plain that a written confirmation by the contractor of a verbal instruction (if it is not disputed) must be given the same force and effect as if the instruction had been issued by the architect in writing in the first place. That is, in my judgment, pure common sense.
- Accordingly, although there is here a complete absence of formal AI's in any sort of standard form, ultimately I regard their absence as irrelevant. Their absence certainly does not demonstrate HTA's case, such as it is, that they were not empowered to issue such instructions: for all the reasons that I have set out above, they clearly did have that power and it was a power that they exercised. Moreover it would be wrong in principle to find that, because there were no formal or written AI's, HTA must have been prevented from issuing them; taken to its logical conclusion, that would allow any party who had failed to perform a contractual obligation to rely on that failure as irrefutable proof that there was no obligation to undertake the task in the first place.
- I should say that, in my view, the absence of written instructions should not generally be taken as a criticism of Mr Thornton (as opposed to Mr Thomas, the partner in charge). He was not employed by HTA when the original contractual arrangements were discussed with Mr McGlinn and the meeting in December was really his first involvement on the project. If he was confused as to the scope of HTA's role, it was for Mr Thomas, who had been involved in the project since its inception, to deal with any queries. The view which I have formed from the evidence is that Mr Thornton was left to run this project on behalf of HTA without any proper guidance from Mr Thomas, and I am supported in that view by the inferences that I have drawn from Mr Thomas' failure to give evidence.
(e) Interiors and Finishes/Other Areas of the Project
- I now turn back to the meeting attended by Mr McGlinn in December 1998, which was probably dated the 14th. Based on the evidence from Mr McGlinn and Mr Thornton, I have found that the discussion did not result in some sort of blanket ban imposed by Mr McGlinn on HTA issuing instructions to Waltham. However, as noted in paragraph 203 above, I consider that Mr McGlinn did issue a partial ban, effectively preventing HTA from issuing instructions to the contractor in respect of the interiors/finishes of Maison d'Or. It seems to me that, even by this stage, Mr McGlinn was unsure about Huw Thomas in particular and HTA in general. He was, however, sure that Terence Disdale of TDD, who had designed the interior of the Tigre d'Or, was capable of producing interiors which were to his taste. Therefore, I find that, at that meeting, Mr McGlinn made it clear that HTA were not to issue instructions to the contractors, Waltham, in respect of the interiors/finishes of Maison d'Or. If Mr Thomas thought that the ban on instructions went wider than that, he was wrong.
- Again, this finding is borne out by what happened thereafter. As we have seen, all matters relating to the design and finish of the interior of the house were put to TDD for their approval. In addition, TDD then issued numerous instructions to Waltham as to the design of the interiors/finishes of the house. No significant instructions in respect of the interiors/finishes were issued by HTA. Furthermore, when, on occasion, it appeared to TDD that HTA were issuing minor instructions to the contractor in respect of the interiors of the property, they complained and made it quite clear that it was they, not HTA, who had to have the final approval. They had regular meetings with Waltham at which HTA were not present. For the reasons that I have already explained, all of this confirms my view that, in respect of the interiors/finishes of the property, it was TDD, not HTA, who were in control of the design of Maison d'Or.
(f) Removal of Defects
- The JCT 1998 form contained, at Clause 8.3, the express power on the part of the architect to issue instructions for opening up and testing and, at Clause 8.4, the architect's powers in respect of work that did not comply with the contract. Pursuant to those provisions, the architect can require the work to be remedied in situ or to be repaired or replaced. Mr Thornton said that he was familiar with those provisions. More importantly, he agreed that, if it was appropriate, he would have utilised those powers:
"Q: Mr Thornton, I take it that your evidence is that if you had thought it appropriate, you would have exercised these powers or similar powers during the course of the Maison d'Or project?
A: If I had thought it was appropriate, I think it would have been carried out, yes.
Q: So for example, if you ascertained that work was sub-standard and the contractor was not bringing it up to standard, you would require it to be removed?
A: Yes, I mean, whether it was in provisions of a contract or not. If the work is sub-standard, it would be normal practice to have it removed, yes."
- There were no written instructions from Mr Thornton in respect of defective work. Mr Thornton said that, rather than write to Waltham, he pointed the matters out as he walked round the site with the Waltham representative. He said:
"As the contractor was with me when I was walking around site, it was easier for me to point it out to the contractor for him to pick it up and sort it out."
As I have already observed, the problem with this approach, like other elements of HTA's casual way of doing things, is that HTA were entirely dependant on Waltham's ability to understand what was required of them and to put in hand the necessary remedial work. It also means that now, six years later, there is no record of whether Mr Thornton actually did point out some of the matters which constitute the Items in the Scott Schedule.
(g) Summary On Instructions
- There was no blanket ban imposed by Mr McGlinn on HTA in respect of the issuing of instructions to Waltham. HTA were empowered to, and did, issue instructions to Waltham, the contractors. To the extent that HTA pursued a policy of giving those instructions verbally, as opposed to in writing, I find that this was entirely HTA's choice. It was not a policy which had, or could have, any legal significance. I also find that, in general terms, to the extent that variations or changes were being introduced by HTA, they needed the consent, either expressly or impliedly, of Mr McGlinn or his representatives but that, in the particular circumstances of this case, they were entitled to exercise a certain amount of discretion so as not to bother Mr McGlinn or his representatives in respect of minor matters.
- I find that there was a prohibition in respect of the issuing of instructions relating to the interiors and finishes of Maison d'Or. It is quite clear to me that Mr McGlinn wanted this work to be the responsibility of TDD, because he trusted them as a result of their previous involvement on his projects. Thus, at the meeting on 14 December 1998, it was in respect of the interiors/finishes that he made plain that all instructions were to come from TDD, not HTA. That, however, was the only ban which Mr McGlinn imposed.
E3.7 Administration
- I have previously made the point that there is no pleaded case against HTA in respect of their maladministration of the building contract: see Section D above. However, given that a number of these matters were pursued during the oral evidence, I ought, for the avoidance of doubt, to set out in summary form my conclusions on the points that were debated.
- It seems clear to me that HTA had no role in the valuation of Waltham's work. Although they issued interim certificates, those were always in the sum with which they had been provided by WL. They were not, therefore, themselves required to exercise any independent valuation function. Furthermore, I should say that it seems to me clear on the evidence that the actual issuing of the interim certificate was irrelevant to Waltham's cash-flow. Waltham were not paid on the basis of either the issue or the content of the certificate. When, in 2000, there was a delay on the part of HTA in issuing interim certificates, Waltham wrote to complain, but only as a matter of good order, and not because it meant that they had not been paid. On the contrary, Waltham said expressly:
"May we remind you that there are a number of monthly certificates due from yourselves for the above.
This has not caused us any difficulty as our client is paying against Wilson Large's paperwork, but it will keep the 'contract' paperwork up to date."
It seems to me that this is the clearest possible evidence that the actual issue of certificates by HTA was immaterial to the actual payment mechanism operated as between Mr McGlinn, WL and Waltham.
- I have already made the point that, if Mr Thornton saw defects in the work as he went round on his monthly inspections, he was obliged to point out those defects to WL and that, thereafter, it was for WL to decide the extent, if at all, to which those defects should result in a reduction in the amount of the next interim certificate. It was Mr Thornton's evidence that, following the site meetings, he walked the site with Mr Richards and did just that. However he made it clear that he never discussed valuations or money: as he put it "I never had any discussions on value with Mr Richards".
- There was a good deal of cross-examination on the extension of time claims made during the progress of the works by Waltham to HTA. It was not clear to me to which issue this line of questioning actually went. However, on the evidence that I heard, it seems to me that Waltham were making their claim for an extension of time to HTA because, in the draft form of contract which they had been sent by WL, HTA were referred to as the architect. For their part, HTA were not surprised to receive such a request but they appeared to do very little about it. Mr Thornton said that, when he wrote his response to Waltham (his letter at G5/1575) it was based upon information given to him by WL. He said he wrote the letter because he was asked to, and he refuted the suggestion that either Waltham or WL thought HTA were dealing with contractual matters.
- Accordingly, the absence of any detailed response to Waltham's extension of time claim, from HTA, or anyone else, is just one manifestation of the lack of clarity that existed throughout this project in respect of the differing roles of the professionals. I have dealt generally with that topic in Section D above. It has no direct bearing on any of the matters in the Scott Schedule.
- The other certifying function that an architect would usually have, and which is of some relevance here, is the certifying of Practical Completion. All of the evidence that I heard suggested that it was for HTA, in the present case, to conclude when Practical Completion had been reached and, when it had been reached, to certify accordingly. Mr Thornton never at any stage demurred from that proposition. It seems to me to be the only logical conclusion from the evidence. Of course, in the present case there was never any Certificate of Practical Completion. That in turn gives rise to a debate as to the absence of snagging lists issued by HTA to Waltham, a point addressed in Section E3.8 below.
- Finally, on this point, I should note that Mr Thornton agreed, when answering questions put to him by Mr Reese QC that, as far as Waltham was concerned, HTA acted as contract administrators. For the reasons previously noted, this was perhaps unsurprising, given the reference to HTA as architects in the unsigned building contract, and the fact that, as the correspondence demonstrates, there were times during the construction of Maison d'Or when HTA carried out tasks which could fairly be labelled as 'contract administration'. But that only takes us so far, because, on other occasions, there were times when WL were also undertaking tasks which could be similarly labelled. This is all part of the fundamental uncertainly over the contractual arrangements here, a point I have addressed at Section D above, but which is almost completely irrelevant to the pleaded allegations in this trial. However, for the avoidance of doubt, I should make clear that, particularly given the absence of evidence from Mr Thomas, I reject the suggestion that, in some way, HTA's perception of WL's role had any relevance to HTA's performance of their contractual obligations, or any relevance to the allegations with which I have to deal (see also paragraph 764 below).
E3.8 Snagging
(a) Usual Practice
- It is the usual practice in the UK construction industry, when a building is nearing completion, for the contractor to go through the building carefully and do the best he can to ensure that it complies in all respects with the contract. He then hands the building over to the architect for snagging purposes. The architect then undertakes his own careful inspection of the building and records, in a detailed snagging list, all those items which he considers to be patently incomplete or defective. The contractor is then required to correct all the items on the snagging list. Once the architect is satisfied that all the items on the snagging list have been corrected, then, unless some other event has intervened, the architect will normally issue a certificate of Practical Completion.
(b) Does the Architect Wait?
- An issue which arose repeatedly throughout the evidence in this case was the extent, if at all, to which an architect was entitled to wait until the contractor's handover of the building before undertaking a careful inspection and producing a detailed snagging list of the incomplete/defective work. It seems to me that the answer to this question comes in two parts. First, there can be no doubt that, if, during an inspection prior to handover/snagging, the architect identifies defective work, then he should point it out to the contractor and require it to be remedied. The reason for this is succinctly summarised by Judge Stabb in Sutcliffe. As he pointed out, if circumstances unexpectedly bring the contract to a premature end before such defects had been remedied, and assuming such defects had not been accounted for in the interim certificates, it would be difficult to see how the architect could avoid responsibility, if any consequential over-payment proves to be irrecoverable from the contractor. This, of course, links the inspection regime directly to the interim certificate process.
- Furthermore, Mr Thornton properly accepted as a matter of principle that it was better to deal with defective work as the works were progressed, rather than at the end. On Day 6 there were these exchanges during his cross-examination:
"Q: So it follows from that, does it not, Mr Thornton, that in considering whether work was defective, HTA, and that really means you, had to exercise a judgment as to whether it was more sensible to address defective work as it went along so to speak, or at the end.
A: That is correct.
Q:
If defects are left to the end, they may be very much more substantial and expensive to deal with, may they not, than if they were dealt with earlier?
A: They would be, yes.
Q: So it must follow, must it not, Mr Thornton, that if you identified that [insufficient clearance between the wooden floor and heating pipes] as an issue, the only sensible point at which to deal with it would be before the floor had gone in?
A: That is correct, yes.
Q: Because if you leave it till the end, it is going to be infinitely more expensive for all concerned?
A: That is right
Q: I think you agree with me that if there are defects, they would sensibly be addressed as the works proceed, not left until the end.
A: That is correct, yes."
- A little later in his cross-examination there was another important passage:
"Q: But Mr Thornton, leaving aside, which we will come to in due course, [Mr McGlinn's] particular expectations in any particular room, as a generality, snagging is not intended to deal, is it, with major defects in the work?
A: Not major defects, no.
Q: It is to do with minor items which can be swept up at the end?
A: That is correct".
- Plainly there will always be certain types of defects which must sensibly be remedied at the time, rather than at the end of the project. The alleged lack of clearance between the pipes and the wooden flooring, the example used by Mr Williamson QC during his cross-examination of Mr Thornton in the passages above, is a good example of that. If there is a problem with the depth of the screed, so that there is a risk that the clearance between the pipes and the wooden floor would be insufficient, any problem must be addressed before, rather than after, the wooden floor is installed.
- Equally clearly, there are going to be other matters, particularly concerned with final finishes, which not only could be left until formal handover and snagging, but which it is in reality sensible and productive to leave until that stage. That is the second part of the answer to the question posed above, and was a point made with some force by Mr Thornton on Day 8 of the trial. During his re-examination, there was this exchange:
"Q: Now, photographs were put to you during cross-examination on information from Mr Jowett with a criticism that you did not insist on immediate correction of things that were not right; do you remember?
A: Yes.
Q: What is your experience of how to get the best out of a contractor?
A: Well, you certainly wait until he has finished the job he is on. I mean, there is absolutely no point in ripping work out that is not even completed. I mean, the point I tried to make earlier is that I did not exactly know what the state of play with each item would be. So not knowing, you would ask. I mean, I do not know whether perhaps a piece of skirting board that is perhaps a bit mis-matched or the joint is not exact, I do not know whether that was the first job that perhaps an apprentice is working on. I mean, you certainly would not leap in with all guns blazing if you do not know what the circumstances are.
As far as I was concerned, when the job was complete, the contractor would say it was complete, and things like that would not have been passed."
- Mr Thornton was here repeating the point that he had made earlier in his cross-examination to the effect that it was bad practice, and indeed counter-productive, to be overly aggressive with the contractor during the carrying out of some of these items of finish and joinery. He reasonably emphasised that it was not fair to judge the work in progress by the standards applicable to completed works, unless and until the contractor had said that, in his opinion, those works were indeed complete. To put the point another way, the architect should only be condemning a defect; if the work is not yet finished, it cannot fairly be said to be defective.
- In this regard, I respectfully agree with and adopt the words of Mr Recorder Reese QC in Oval (717) Ltd v Aegon Insurance Co (UK) Ltd [1997] 54 Con LR when he said:
"An employer such as the plaintiff expects that the contractor will proceed in a regular and diligent fashion with the performance of its obligations, but it does not expect initial perfection in on-site performance by all operatives engaged in the works at all times (see generally the well-known observations of Lord Diplock in P and M Kaye Ltd v Hosier and Dickinson Ltd [1972] 1 W.L.R 146 with which I find myself in total agreement and respectfully follow)
It follows that, in my view, such temporary disconformities would not constitute either non-performance or non-observance of the terms of the construction contract."
Accordingly, if an item has been left incomplete when a contract comes prematurely to an end, the question is whether it is something which the contractor (or the architect) might fairly have regarded as work in progress, or whether it is something which should properly have been treated as complete.
(c) HTA's Obligations
- Accordingly, it seems to me that there would be certain matters which, if they had been or should have been noted by HTA during their periodic inspections, HTA were obliged to point out as the works progressed. Although in Sutcliffe, Judge Stabb put this obligation by reference to the interim certificate process, it seems to me that, even without the existence of that process or an architect's role in it, plain common sense dictates that that is what the inspecting officer should do. That is what Mr Thornton generally accepted should have been (and was) done in this case. On the other hand, there are other aspects of this case where I accept Mr Thornton's evidence that it would have been counter-productive for the inspecting officer repeatedly to point out purported defects in work that was still in the process of being carried out. Such an approach to temporary disconformities would simply have led the contractor to conclude that the inspecting officer was unreasonable, and would have disrupted the proper progress of the works. Thus, one of the issues for me, in respect of the Items in the Scott Schedule where a case is advanced against HTA by reference to their failure to inspect properly, is to decide into which of these two categories the particular Item falls.
(d) Practical Completion
- I have dealt with the factual situation in November 2001 - January 2002 in outline in Section C12 above. Based principally on the oral evidence of Mr Thornton, the person most closely involved in this aspect of the work, I find that:
a) In December 2001 he had expressly said that he was not willing to certify the works as practically complete;
b) He was aware that Mr McGlinn did not want him to issue a practical completion certificate "under any circumstances, until he was ready";
c) By January 2002, he considered that the building was close to, but had not reached, the stage of practical completion (particularly because there had still been no handover for snagging);
d) The works as at January 2002 could be described as 'substantially complete'.
- Mr Thornton was asked whether, in January 2002, the works were to the requisite standard. He replied:
"No, no snagging had been carried out. The contractor had not even said to us he was ready for snagging, so we had not accepted the building from the contractor even to start the snagging process. The snagging process may have then taken perhaps another four weeks, six weeks, eight weeks, depending on how we got on with it and how we felt we were happy with the building as it came along when he started the snagging process."
- I should also note that, when this topic was revisited later in Mr Thornton's cross-examination, it was suggested to him that Maison d'Or was "a million miles away" from Practical Completion. This was a suggestion which Mr Thornton refuted. If, however, such a case had been right, and the property really was "a million miles" from Practical Completion, then the 'temporary disconformity' point would inevitably have loomed larger and been of more assistance to HTA - in any consideration of the Items in the Scott Schedule.
F HTA'S LIABILITY FOR THE ITEMS IN THE SCOTT SCHEDULE
F1 Introductory Matters
F1.1 The Architectural Experts
- The Claimant's architectural expert was Mr Roger Jowett of Bickerdike Alan & Partners. He produced one main report, dated 26 July 2006, and a later document, which comprised answers to detailed questions raised by HTA, which was dated 3 October 2006. He also agreed a number of matters with Mr Salisbury, HTA's architectural expert, which agreements were recorded in a document dated 14 July 2006. Mr Salisbury himself produced one main report dated 26 July 2006, and a note to the Court dated 20 October 2006.
- As noted at the outset of this Judgment (paragraph 19 above) I considered that both Mr Jowett and Mr Salisbury were at all times endeavouring to assist the court on the numerous technical issues that had arisen and the potential liability of an architect for the defects that had been found. Both men were clear in the explanation and exposition of their views. As will be seen in Section F2 below, in my detailed consideration of the individual Items, I have been guided to a significant extent by what they had to say.
- However there are one or two general points which I ought to make about the evidence of Mr Jowett and Mr Salisbury, because some of my findings on the individual items in the Scott Schedule can, in certain instances, be traced back to these general views.
(a) Mr Jowett
- Mr Jowett is a well-known architectural consultant whose CV demonstrates the large number of major projects with which he has been involved. That involvement has almost always arisen when a problem has manifested itself in the building in question, and Mr Jowett and/or his practice have been asked to investigate the defects and suggest remedial solutions. Accordingly, although he has a wealth of experience in dealing with potentially defective buildings, Mr Jowett has rather less experience of practical day-to-day architecture. He has not, for instance, ever been the designer or the inspecting officer on a project of this sort. That factor is reflected in certain of my findings in Section F2 below.
- A related point concerns the architectural standards which Mr Jowett has sought to impose, retrospectively, on HTA and their performance. Although much of his approach is soundly based on British Standards and other technical documents, there are some passages in his report which demonstrate what I consider to be a slightly unrealistic approach to ordinary architectural standards. I consider that some of the criticisms that he has made of HTA spring from his unfairly onerous view of the standard to be expected of an ordinarily competent architect.
- I should also say that the rather laborious manner in which these defects were identified by Charter, and then subsequently made the subject of Mr Jowett's report, might explain why the Scott Schedule contained some Items which were, to put it neutrally, difficult for Mr Jowett to justify. As noted above, the defects and the basic criticisms were identified by Charter during the extensive opening up exercise, and given a Scott Schedule number. It was then apparently Mr Jowett's job to consider and, where possible, support those criticisms in his report. I have the impression that this chronology explains the inclusion within the Scott Schedule, and subsequently Mr Jowett's report, of criticisms of HTA which were, on any fair view, unjustified.
(b) Mr Salisbury
- Mr Salisbury had more experience than Mr Jowett of practical architecture and direct experience of designing and inspecting a property like Maison d'Or, although much of his time now is spent in various dispute resolution procedures. He had less experience than Mr Jowett in the preparation of reports for use in litigation of this sort. There were times when that lack of experience was apparent. There is no doubt that, in the round, Mr Salisbury was less thorough than Mr Jowett in his consideration of the Items in the Scott Schedule.
- In particular, I was surprised by the number of important background documents in this case which Mr Salisbury had apparently not seen prior to his cross-examination. Whilst of course I accept that, in a case of this sort, it is quite impossible for an expert in Mr Salisbury's position to see and take on board the contents of every document, there were in the present case a number of important documents generated before and after the building contract, many of which were expressly referred to in the Scott Schedule, which Mr Salisbury really had to see and digest in order to form a view as to the allegations against HTA. His failure to consider such documents, and his dogged reliance instead on what he repeatedly referred to as "my instructions" meant that there were times when Mr Salisbury was dealing with a completely different case to that which had been pleaded and advanced by the Claimant in the Scott Schedule.
- Mr Salisbury's performance during a lengthy cross-examination got stronger and more confident as it went on. But one of the effects of that was that Mr Salisbury became perhaps a little over-confident, and some of his answers in the latter part of his cross-examination amounted to unqualified admissions of liability on the part of HTA for particular Items. Although these answers were contradicted by Mr Salisbury's earlier evidence, and in certain instances, by his answers in re-examination, I have to consider very carefully the unqualified admissions made by HTA's own expert.
F1.2 The Critical Items
- Inevitably, as in any Scott Schedule case, there are certain Items here which are much more important than others. This was recognised by Mr Bartlett QC, who cross-examined Mr Jowett by reference to the order of precedence of the Items set out in paragraph 6.0.2 of Mr Jowett's report. That paragraph reads as follows:
"There are however some key items, which, as discussed later in relation to consideration of the scope of remedial works, are of central importance. These are as follows:
1. The roof. (Scott Schedule Section 4 and in particular Item 4.1.3, the positioning of sarking membrane at the eves or gutters and Item 4.1.1, the quality of the slates themselves) which lead to the roof needing to be replaced down to the main structure.
2. The detailing and quality of reconstituted stone in the external walls (Scott Schedule Items 1.1.1, copings 1.2.2/1.2.3) in conjunction with the window glazing deficiency (Item 2.1.1) and the fixing plate deficiency (2.1.6) which together would require major works to the external walls in order for the defects to be rectified.
3. The deficiencies in the under floor heating (Item 26), a Services Item in conjunction with the items relating to internal finishes internal joinery (Item 5.1), kitchen fittings (Item 5.2), floors (Item 5.4), internal stone (Item 6) which result in extensive works being necessary to the interior."
- In one sense, a different order of precedence was identified by reference to what the Scott Schedule (but no witness) labelled the "Lead Items". These Items arise in this way. Within the groupings of Items within the Scott Schedule, there are particular Items which are said to have required extensive remedial work. They are the so-called Lead Items. If remedial work had been carried out to rectify a particular Lead Item, such work would inevitably also have made good a series of other defects in the building, which are pleaded by way of other Items, sometimes in other parts of the Schedule. In some instances, only the Lead Items have been costed. Other (non-Lead) Items were not separately costed in the Scott Schedule, because they were said to be included within the Lead Item, although some extrapolated costings were provided as part of the Claimant's closing submissions.
- Important Lead Items within the Scott Schedule include Items 1.2.3, 2.1.1, 4.1.3, 5.1.1 and 5.2.1. Take Item 1.2.3 as an example of the difficulties created by this process. If I concluded that that Item was the responsibility of HTA, and that HTA are liable either for the rebuild or repair cost of that Item, then, on the Claimant's case, my findings on Items 1.1.1, 1.1.2, 1.1.3, 1.1.4, 1.2.1, 1.2.2 and 1.2.3 become irrelevant, because all those Items would have been made good by the repair/rebuild work said to be necessary under Item 1.2.3. However, if I rejected Item 1.2.3 (either as to liability or causation or on the basis that the remedial scheme proposed is unreasonable or unjustified), but found for Mr McGlinn on other Category 1.1 or 1.2 Items, there was a potential difficulty in arriving at an appropriate figure for damages, because none had been separately pleaded. In answer to my request for this information, an attempt was made to provide it by way of Appendix 2 attached to the closing submissions of Mr Williamson QC and Mr Selby. Where relevant, I deal with this exercise in Section L2 below.
- Despite Mr Jowett's emphasis on particular Items in his report, and the potentially distorting importance of the so-called Lead Items from a quantum point of view, I have decided that I should deal with the Items in this Judgment in the same order in which they are set out in the Scott Schedule. It seems to me that that is the only way in which proper clarity can be achieved. However, it is inevitable that both the Items stressed by Mr Jowett and the Lead Items will loom large in that analysis.
F1.3 My Approach to the Items
- There are a variety of points which arise on each of the Items in the Scott Schedule. The starting point for each dispute must be the pleadings, and in particular the Claimant's case as set out in the Scott Schedule, and HTA's response to that case. Subject to the particular matters that have been pleaded by the parties in respect of each Item, I have endeavoured to analyse the allegations in the Scott Schedule by adopting the methodology set out below.
(a) The Defect Itself
- For each item in the Scott Schedule, I have considered:
(i) the nature of the defect;
(ii) the relevant facts (if any) concerning how this defect came about;
(iii) the scope and extent of the defect;
(iv) the best evidence of the defect.
(b) Specification
- When the allegation concerns the failure on the part of HTA to provide any or any adequate specification, I have considered:
(i) whether the item was specified by HTA and, if so, whether that specification was adequate;
(ii) if the item was not specified, whether it should have been;
(iii) the relevance (if any) of the absence of (or inadequate) specification to the occurrence of the defect.
- This last point is important. There are a number of allegations concerning HTA's failure to provide a specification. As will be seen from Section F2 below, I consider that many of those allegations are made out. However, in some instances, I consider that the failure to provide a specification was ultimately irrelevant, for the reasons which I explain.
(c) Design
- Where the allegation against HTA concerns their deficient design, I have considered:
(i) the nature of HTA's design of this element of the works;
(ii) whether the design arose as a result of a change imposed later by Mr McGlinn and, if so, whether that makes any difference at all;
(iii) whether HTA's design was adequate in all the circumstances;
(iv) if HTA's design was not adequate in all the circumstances, how and why it was inadequate;
(v) the relevance (if any) of the inadequate design to the defect.
Again, this last point arises out of the fact that, for certain items, although HTA's design can be criticised, I consider that the evidence demonstrates that the defect arose for reasons unconnected to HTA's design.
(d) Inspection
- The vast majority of the items pleaded against HTA are based, either wholly or in part, upon an alleged failure properly to inspect. For these items I have considered:
(i) whether the item of work was in accordance with the specification and/or design;
(ii) if the work was not in accordance with the specification and/or design, the nature and extent of the divergence;
(iii) whether (adopting the principles set out in Sections E3.5 and E3.8 above) the divergence should have been seen by HTA on their periodic inspections and, if so, when and why;
(iv) if the Item should have been seen on periodic inspection, then was it noticed, and what is the relevant evidence to support such a contention;
(v) whether or not it was reasonable for HTA to conclude that this Item would be dealt with as part of the final snagging process;
(vi) the relevance (if any) of the failure to inspect to the occurrence of the defect.
- I should also say that, in respect of the allegations about inspection, I bear in mind two general points. On the one hand, I have been critical of certain aspects of the inspection regime adopted by Mr Thornton of HTA: see Section E3.5 above. But I am also conscious that some of the allegations of defective inspection set out in the Scott Schedule arise out of Items where Mr McGlinn plainly had a very strong case against Waltham for bad workmanship, but where, with the best will in the world, it is much more difficult to say that an ordinarily competent architect should have picked up on the defect in question during his periodic inspections. In other words, I have endeavoured not to lose touch with reality; the mere fact that the contractor would have been found liable for an item of defective workmanship does not automatically mean that there is a sustainable case against the architect for failing properly to inspect.
(e) Other Matters
- Depending on the pleadings and the evidence, there are some items for which extraneous matters are relevant. I have already touched on the question of client changes. Other Items in the Scott Schedule are said by HTA to have arisen only because of the neglect of the fabric of the building after Waltham left site in January 2002. For certain Items, therefore, this is something that I have expressly considered.
(f) Summary
- Accordingly, I have adopted the methodology set out above in arriving at my conclusions in Section F2 below. For reasons of concision, I have not always laboriously set out, in respect of each Item, each of the questions I have asked myself. However, having followed the methodology set out above, I consider that the answers to those questions can be clearly discerned in Section F2 below.
F2 The Individual Items
F2.1 Item 1.1.1 Inadequate Weatherproofing: Coping Detail
(a) The Defects
- The allegation concerns the copings at the tops of most of the external walls, and the copings on the walls around the pool terrace. There was no real dispute as to the existence or extent of the alleged defects.
- The principal design allegation is said to be the inadequacy of the protection afforded to the walls by the coping detail; it is said that the projection of the copings was inadequate, and less than recommended in BS5628.
- The other alleged defects are matters of workmanship, and thus inspection. It is alleged in the Scott Schedule that:
(i) The DPC was not visible and thus not to the full width of the wall;
(ii) The lead DPCs were inadequately sealed, and the flashings were not coated where embedded in mortar;
(iii) The cavity tray installation was defective and the weep holes were blocked.
(b) The Design
- The Expert's Agreement of 14 July 2006 records that "the copings were in some instances not wide enough". The experts also agreed that "account should have been taken of Code of Practice BS5628: Part 3: 1985 when preparing the design".
- The relevant part of the British Standard 5628 provides as follows:
"21.7 Cappings and Copings
Chimney terminals, free standing walls, including parapet walls
and retaining walls exposed to the weather, should preferably be provided with a coping. The coping
may be a pre-formed unit or it may be built up using creasing tiles. In either case, the drip edge(s) should be positioned a minimum of 40 mm away from the face(s) of the wall. Where for aesthetic or other reasons a capping (see 2.2) is used, special care is needed in the choice of materials, both for the capping and for the walling beneath
"
The effect of the experts' agreement, referred to above, is that, in breach of the BS, at least some of the copings projected less than the minimum 40 mm from the face of the walls.
- Mr Jowett's evidence was that the drip edge should be positioned at least 40 mm away from the face of the wall and HTA's failure to design and/or specify this was a significant failing on their part. In many ways, Mr Salisbury had no real answer to this. He agreed that the HTA drawings showed a projection which was less than 40 mm. He agreed that, if there was to be a departure from a British Standard recommendation, there would have to be a good reason for it, and he said that he had not seen any explanation as to why it was appropriate to depart from the British Standard in this case. He did not proffer one himself.
- HTA's closing submissions made the point that the British Standard expressly permitted a capping with no overhang at all and that what HTA had designed was more protective than a capping. They also pointed to the fact that, pursuant to HTA's design, rainwater was generally shed to the rear, into the lead gutter. They claimed that the coping was not "exposed to the weather" but was protected by render and paint and that, in those circumstances, the British Standard recommendation was not applicable.
- Taking into account all the evidence, I reject HTA's submissions. First, Mr Salisbury agreed with Mr Jowett as long ago as 14 July 2006 that account had to be taken of BS5628. As Mr Salisbury accepted, the design did not comply with the BS and there was no explanation as to why not. Mr Salisbury did not suggest that the British Standard was irrelevant. Moreover, in my view, the argument by reference to the capping alternative is not available to HTA in circumstances where they decided, for whatever reason, not to design a capping but instead to design a coping for this wall. Having made that decision, they were obliged to comply with the British Standard and there was no good reason why they did not.
- For those reasons, I consider that the failure to design and/or specify a coping in accordance with BS5628 comprised a breach of contract on the part of HTA.
(c) Workmanship
- There appears to be no dispute that there were some workmanship defects in respect of the DPC's. I note from the agreement between Mr Jowett and Mr Salisbury that they are agreed that:
(i) The horizontal DPC beneath copings was in places set back from the outer face and not supported across the wall cavity beneath, causing sagging, although Mr Salisbury noted that he had seen this on the south gable only;
(ii) HTA drawing 1120/29 showed a lead flashing detail beneath the coping on the outer face which had not been constructed;
(iii) Weep holes were provided but some were rendered over.
(d) Inadequate Inspection
- Taking first the defect at paragraph 298(i) above, I note that the experts are agreed that the setback of the DPC "was not reasonably observable by an architect during normal inspection unless he happened to see it being installed, but an architect would be able to have seen that the DPC was not visible and did not project". I also note that, during cross-examination, Mr Thornton was shown a still from the video which he had himself taken during the course of the works, which showed the underside of the coping before the render went on. Mr Thornton confirmed that it was clear from the still that there was no projecting DPC. He confirmed that this was a matter that he would have been aware of in 2000 and that he should have taken it up with the contractor if he had observed it.
- In addition, during his own cross-examination, Mr Salisbury accepted that there were items which should have been seen by the architect, particularly in respect of the DPC. On this particular point he said:
"Ideally the DPC, to accord with the recommendations, should have been allowed to expose beyond the face. Had that been so, it would have been visible to the architect on his inspections, yes. As we know from the video, it is not."
- For these reasons, therefore, I have concluded that the setting back of the DPC was something which could and should have been seen by HTA on their periodic inspections. I do not accept the points made at paragraphs 183 186 of HTA's closing submission, which seek to introduce arguments not explored in the evidence and which, in my judgment, does not offer any sort of defence to HTA in any event.
- As to the defect at paragraph 298(ii) above, I note that the experts agreed on 14 July 2006 that "the absence of projecting lead flashing, if required, would also have been visible [during periodic inspection]". I consider that this agreement must have made plain to HTA that there was a case for them to answer on the point, but it was not addressed in Mr Thornton's second statement, prepared just a few days before the start of the trial, nor was it satisfactorily dealt with by Mr Salisbury. HTA are therefore liable for this defect too.
- Plainly, the weep holes (defect (iii) at paragraph 298 above), some of which were blocked, would have been visible on inspection. However, unlike the other points, I am entirely confident that that was a matter that would have been dealt with prior to practical completion. I agree with Mr Salisbury's description of the matter as "utterly trivial".
- On the basis of the expert evidence, therefore, I consider that the majority of the defects in the workmanship at the copings should have been seen by Mr Thornton on his regular periodic inspections. They were not. I consider that, in consequence, HTA were in breach of contract.
(e) Remedial Work
- Mr Jowett and Mr Salisbury have agreed that the remedy for this defect was "to reposition the copings and, if that was not possible, to replace the copings if their condition was likely to lead to damage". There was no specific evidence as to whether or not it was possible to reposition the copings but it seemed to me to be doubtful. I also note that, in connection with this specific item, Mr Salisbury accepted that, on a new building of this kind, this type of defective work should be remedied so as to achieve a proper standard, regardless of whether there is actual damage. Whilst I consider that such a proposition is a matter of fact and degree, and must always depend on the defect in question, I conclude that it is applicable to copings protecting the top of the external walls of the house itself: there was at least a risk of water penetration in the future, and that clearly justified remedial work.
- Accordingly I consider that, regardless of questions of actual or imminent damage, Mr McGlinn was entitled to a new coping/DPC arrangement of the tops of the walls.
- There was a major debate about whether or not the copings had caused damage. For the reasons noted above, and in particular Mr Salisbury's clear admission that remedial work would be required, I do not regard the issue of actual damage as relevant to HTA's liability for this Item, although it is relevant to other Items, dealt with below. However, for completeness, I should say that, in my judgment, there was little evidence that the defects in the design and construction of the copings had caused any damage prior to demolition. If water had been getting in at the coping level, the render immediately below the coping would demonstrate signs of water penetration. No such water penetration is apparent from the photographs and there are no protimeter or other readings which would demonstrate that water had been getting in at that location.
- Furthermore, although there are some areas of peeling paint, the worst areas are not immediately below the copings but further down the walls. Mr Salisbury had a plausible explanation for that which I address under Item 1.2.3 (Section F2.8 below). For present purposes it is sufficent to say that I find that the peeling paint was not caused by water penetration at the copings.
(f) Summary
- I conclude that Item 1.1.1 is made out as against HTA, and I consider that, in view of the risk of water ingress, remedial work was required. The appropriate remedial remedy was the replacement of the copings.
F2.2 Item 1.1.2: Painted, Not Self-Coloured, Render
(a) The Defect
- This is the first Item in the Scott Schedule that arises out of Mr McGlinn's complaint that the completed building did not meet his original requirements. It is his case that he wanted self-coloured render, so that the fact that HTA specified paint on a sand/cement render and that is what was constructed - constituted a breach of contract on their part. Although the pleaded allegation was confined to the simple point that HTA had made an unauthorised change to the agreed workscope, there was throughout the trial a suggestion that the paint that was specified was somehow itself deficient. I am not persuaded that this allegation has been properly pleaded by the Claimant in the Scott Schedule. However, in view of the evidence that I heard and the firm views I have reached on the point, I deal with that additional allegation below.
(b) Self-Coloured Render
- As to the self-coloured render, Mr McGlinn asserted that this is what he had asked for. There was, of course, no other record of that alleged request, although Mr McGlinn accepted that he had had a conversation with Mr Thomas about the different kinds of render that had been used in the past, including the days when builders had added ox blood into the render to obtain colouring.
- Although Mr Thomas did not give evidence, so there was no direct evidence to challenge Mr McGlinn's assertion, I have concluded that, on the totality of the evidence, Mr McGlinn was mistaken. I find that, had a request for self-coloured render been made, a complaint/protest about the failure to implement the instruction would have been made (by Mr McGlinn or another of his representatives):
a) As a result of the planning application and drawings (which expressly referred to painted render);
b) As a result of the Bills prepared by WL (which expressly referred to painted render);
c) Throughout the progress of the works: if he had wanted self-coloured render, Mr McGlinn would never have accepted the use of the grey render, and its subsequent painting by Waltham, but the evidence was clear that he did.
- Mr McGlinn's later actions, and those of his representative, were only consistent with an instruction/requirement for painted render. That explains why the absence of self-coloured render was not raised as a complaint by Mr Tanner in the second half of 2001, or in his comments upon the Charter Schedule the following spring (paragraph 110 above) and, even more tellingly, why the first suggestion for self-coloured render was properly described by Charter as an 'enhancement' (see paragraph 128 above).
- For all these reasons, I reject Mr McGlinn's assertion that, at the outset, he asked for self-coloured render. The weight of all the rest of the evidence is contrary to such an assertion, and the inference that I am asked to draw arising from the failure to call Mr Thomas cannot alter my conclusion. I therefore reject the allegation that HTA made an unauthorised change to the workscope instructed by Mr McGlinn.
- There is one final point to be made about this allegation. Even if I had concluded that this was an unauthorised departure from Mr McGlinn's instructions, and therefore a breach of contract, what would have been the proper measure of loss? If there is no technical or aesthetic difference between self-coloured render and painted render (and no-one suggested that there was), then I would not have concluded that Mr McGlinn was entitled to the cost of re-rendering all the walls. That would have been out of all proportion to the breach; in accordance with the principle in Ruxley Electronics v Forsyth [1996] A.C.344 discussed at paragraphs 789 and 791 below, I would have found that only nominal damages were recoverable as a result of any breach.
(c) The Paint Itself
- Mr Thornton explained that he had recommended the use of a paint known as Keim Granital. He demonstrated that, according to the Keim catalogue, there needed to be two coats of paint in year 1, and then a further coat at year 16. That specification, according to Keim, provided 30 years protection of paintwork. Mr Thornton approved Keim Granital for use at Maison d'Or and required the application by Waltham of two coats at the first decoration.
- By reference to this same catalogue, Mr Salisbury concluded that the Keim Granital paint was suitable for use at Maison d'Or. Indeed, there was really no evidence to suggest that the paint was not suitable. Mr Jowett's complaint was not about the type of paint, but the way in which it had been applied. He said "whichever paint it was, it was put on too thin". That is a separate issue, dealt with under Item 1.1.3 below. Accordingly, I conclude on the evidence that the paint identified by HTA for use at Maison d'Or was suitable and appropriate. I therefore reject Item 1.1.2 against HTA.
F2.3 Item 1.1.3: Inadequate Paint Application
(a) The Defect
- The complaint in respect of Item 1.1.3 was that the paint had been applied inadequately and not in accordance with the manufacturer's requirements. There was a report by Chatfield Laboratories dated 1 May 2003 which demonstrated that the paint had been typically applied at approximately half the thickness expected from the specified type of paint.
- There was no challenge to the Chatfield report. It seems clear that this was a breach of contract on the part of Waltham, a view confirmed by the series of admissions set out in Waltham's responses to the Scott Schedule. Accordingly, the question for the Court under Item 1.1.3 was whether or not Waltham's failure to apply the paint properly was something which HTA should have seen on their periodic inspections. Thus, this is the first of the allegations in the Scott Schedule where the contractor (thief) was obviously liable but where, for economic reasons, Mr McGlinn needs to get home against the architect (policeman) instead.
(b) Inadequate Inspection
- I have no hesitation in concluding that this failure was not something which HTA could reasonably have been expected to see on their periodic inspections. I respectfully concur with the agreement of 14 July 2006 reached by Mr Jowett and Mr Salisbury which recorded, in relation to this Item:
"The alleged defect was not caused by the Architect. It was agreed that the architect would be unlikely to spot thin paint unless the inspection took place at the time of application."
Indeed, in the light of this agreement, it is a little difficult to understand why this allegation was maintained against HTA at all. I do not accept that it is appropriate for the court to do what Mr Williamson QC and Mr Selby urge me to do at paragraphs 255 and 256 of their closing submissions, and have regard to expert evidence from Mr Jowett that was contrary to the agreement he reached with Mr Salisbury. Neither do I consider that the failure to call Mr Thomas had any relevance at all to this issue.
- Furthermore, if there was any doubt about the inappropriate nature of this allegation, I should also note that, in March 2002, when Mr Wheeler of the Charter Partnership undertook his thorough inspection of the house, he failed to notice or report upon any problems with the paint. Accordingly, I find that, to the extent that the peeling paint shown in the later photographs was the result of its poor application originally, this was not something that would have been reasonably apparent to an architect in 2001 2002.
- Indeed, to be fair to Mr Thornton, in his evidence he said that, in late 2001, he had seen one or two small areas where the paint was flaking. He said that he raised this with the contractor, Walthams, who had said that, because of the delay between painting and practical completion, they would repaint the entirety of the outside of Maison d'Or prior to departure from site. I consider that this provides further confirmation of my view that no criticism can be made of Mr Thornton's periodic inspections in respect of the paintwork.
F2.4 Item 1.1.4: Insufficient Coats of Render
(a) The Defect
- A two coat render was specified (see paragraphs 45 and 316 above) and apparently applied by Waltham. The criticism of HTA is that a three coat render should have been specified. The dispute was therefore whether two or three coats of render should have been specified by HTA; that issue in turn centred on whether or not this was a severely exposed site, either in accordance with the British Standards, or at all. Mr Jowett, on behalf of the Claimant said that it was; Mr Salisbury, on behalf of HTA, said that it was not. It is accepted that, if the site was not severely exposed, three coats of render would have been unnecessary, and would not have constituted a breach of contract on the part of HTA.
- I also note that, although this was an Item which Mr Jowett's report supported, it was essentially an allegation that he had inherited from Charter. It is clear from the documents produced by Charter between 2002 and 2004 (see Section C14 above) that Charter advised that specific criticisms could be made of the design/specification of Maison d'Or because, in their view, the site was severely exposed and insufficient allowance had been made for that fact. It appears from the evidence that this element of Charter's investigations amounted to no more than an assertion by them that the site was exposed; the Charter witnesses agreed with Mr Bartlett QC in cross-examination that they had undertaken no calculations themselves in accordance with the British Standards in order to determine the exposure rating.
(b) An Architect's Assessment
- In one sense, it would be wrong to criticise Charter for failing to undertake detailed calculations because there was evidence that an ordinarily competent architect would assess the exposure rating of the site, not by reference to detailed British Standards, but simply by using his professional experience and judgment. Mr Jowett broadly agreed with this at the outset of his cross-examination on this topic:
"Q: Now, in regard to assessing exposure, I am going to suggest that an architect designing a new house has three principal choices in assessing the exposure of the site. The first choice would be he could choose not to carry out any detailed assessment but simply take a look around, use his common sense and adopt a conservative view to be on the safe side. That would be a reasonable approach, would it not?
A: It may be.
Q: Second choice: he could rely on local knowledge, if he has it, and local practice?
A: Yes. For example, it is quite common place in France to see the end walls of houses clad in zinc sheet, because of the exposure of those walls.
Q: And the third thing he could do would be to carry out a calculation using BS 8104 of 1992?
A: He could do that."
- There is no dispute that HTA did not regard the site as severely exposed. As I have previously noted, that view accorded with the views of Mr Salisbury. In assessing whether or not that was a proper view, I am hampered by the fact that I have not been to the site and never saw the house when it was built. However, on the evidence, I could understand why an architect, using his experience and professional judgment, might conclude that the site was not severely exposed, because of the surrounding slope, the trees and mature shrubs, and the other buildings in the vicinity. On the other hand, I could also see that an architect might be concerned by the fact that the site was close to the sea, on a hill above a harbour.
- Accordingly it seems to me that a reasonably competent architect, assessing this site to see whether or not it was severely exposed, might find such an assessment difficult to make. Those would then be circumstances in which the architect might positively conclude that he needed to do a more detailed assessment in accordance with the British Standards. Whilst it appears from the evidence that this was not something that an architect would always do (indeed, it would be quite rare) it seems to me that the competing factors in relation to this site were such that an architect, acting reasonably, might well have undertaken such an assessment.
(c) The British Standards
- There are two British Standards referred to in Mr Jowett's report that are relevant to the assessment of exposure. There is BS 5262: 1991 (Code of Practice for External Renderings), and BS 8104: 1992 (Code of Practice for Assessing Exposure of Walls to Wind-Driven Rain).
- The Claimant's case, as set out in the closing submissions, is put almost exclusively by reference to BS 5262. It is said that paragraph 19 of that BS required three coats of render "in severe conditions of exposure". By reference to the preceding paragraph 18, BS 5262 defines 'severe conditions' as:
"Exposure to the full force of wind and rain. Applies to buildings on hill sides and near the coast, and buildings projecting well above surrounding buildings in built-up areas."
Accordingly, it is the Claimant's case, as articulated by Mr Jowett, that Maison d'Or was plainly within this general description and was therefore exposed to 'severe conditions'.
- I do not consider that this is a fair reading of BS 5262. Importantly, paragraph 19 stipulates that three coats of render are necessary only where the wall in question is "dependent upon the rendering for protection". That makes sense, because it is a BS concerned with rendering. But the walls of Maison d'Or were not dependent on render to keep out the rain. Mr Jowett expressly accepted that an unpainted, unrendered cavity wall was considered in Jersey to be suitable to keep out the rain from the building; as Mr Salisbury put it, the walls of Maison d'Or would have performed quite satisfactorily without any render at all. The cavity construction of the walls formed the essential element of protection; to that extent, the render was simply a bonus.
- In my judgment, that was a complete answer to the criticism of HTA in respect of exposure and BS 5262. However, an equivalent answer can be found by reference to the other relevant British Standard, namely BS 8104. That identifies a methodology in which exposure can be calculated. Mr Jowett followed that methodology to arrive at the conclusion that just one wall, the south wall of Maison d'Or, fell within the definition of severely exposed. He achieved that by incorporating into his calculation the most extreme 'terrain roughness' rating and the most extreme 'obstruction' rating.
- I reject Mr Jowett's contention that the appropriate terrain roughness category was category 0. It is quite plain from the accompanying photographs in BS 8104 that this is a category applicable to flat, wind-swept coastal locations with no surrounding buildings, trees or slopes. It is simply impossible to say that the location of Maison d'Or fits within that description, given the contours of the ground around it, and the sheltering buildings and trees on either side and behind it.
- As to the obstruction factor, Mr Jowett effectively concluded that there were no obstructions. He said that he did not think it appropriate to rely on the trees around the property because they might be removed at any time. Again, I am bound to reject such a contention. Indeed, paragraph 5.2.7 of the BS expressly provides that trees should be taken into account in calculating the obstruction factor. It is therefore contrary to BS 8104 to ignore the presence of trees in the calculation of the exposure rating of the site.
(d) Summary
- In all those circumstances, I reject the attempt to classify the Maison d'Or site as a severely exposed location. It seems to me that an initial assessment of this site might have led a reasonably competent architect to conclude that the site might be severely exposed, or that it might not be: that assessment would be a matter of professional judgment, and not (except in extreme circumstances) the proper subject matter of an allegation of professional negligence. The reasonably competent architect may then have concluded that he should refer to the two appropriate British Standards; reference to either, for the reasons set out above, would have demonstrated that the Maison d'Or site was not severely exposed, and that therefore there was no requirement under the British Standards for there to be three coats of render. Thus, HTA's specification of two coats was not a breach of contract; indeed, it was, in my view, the right technical solution. In those circumstances, of course, it matters not that HTA did not do a detailed assessment of the exposure rating.
F2.5 Items 1.1.5 1.1.8: Wall Ties, Cavity Trays, Cavity Closures, etc
- I have already referred to these Items in paragraph 133 of this Judgment. They are not alleged against HTA, or indeed WL or DJH. They are purely matters of defective workmanship and, as such, they are alleged solely against Waltham. But they are not unimportant. For example, Item 1.1.5 is concerned with inadequate wall ties. It was this item which in the earlier Charter report tipped the scales against repair and in favour of demolition/rebuilding.
- Pausing here, at the end of my consideration of the Category 1.1 Items (ie, those concerned with the principal elements of the structure of the external walls), it will be seen that I have concluded that HTA are liable only for Item 1.1.1, concerned specifically with the copings at the top of the walls, and nothing else.
F2.6 Item 1.2.1: The Use of Reconstituted Stone
(a) The Defect
- This is the second of the Items which stem from Mr McGlinn's case that the original design/specification did not accord with his instructions. The complaint is that reconstituted stone was used, instead of granite. It is said that the reconstituted stone "was not in accordance with Mr McGlinn's requirements".
(b) The Relevant Facts
- I have set out the relevant facts in relation to this matter in Section C7.1 above. The change from granite to reconstituted stone resulted directly from Mr McGlinn's instructions to Mr Richards of WL to reduce the proposed workscope and, therefore, Waltham's contract price. The change from granite to reconstituted stone was made plain in documents which Mr McGlinn saw and which did not cause him to protest in any way. He even saw a Haddonstone catalogue.
- For all those reasons, I cannot see how it can be suggested that the use of reconstituted stone on the part of HTA was without more - a breach of contract. It was a change which, indirectly at least, Mr McGlinn had instructed. Further confirmation of that, were it needed, can be found in the complete failure on the part of Mr McGlinn (or his representatives) to complain about the use of Haddonstone. Instead, Mr Disdale approved the colour of the reconstituted stone on Mr McGlinn's behalf, and Mr Tanner never gave the matter any thought at all. Much later, when it was the subject of the Charter investigations, the proposed change back to granite was properly described as an 'enhancement' (paragraph 128 above).
(c) 'Informed Consent'
- During the hearing, much was made of the allegation that no proper explanation was given to Mr McGlinn as to the effect that the change from granite to Haddonstone would have, and reliance was placed on WL's letter of 20 November 1998, and the suggestion there that none of the changes (including this one) "alter the original design of the house". It was said on behalf of Mr McGlinn that although he may have approved the reductions, he did not give "informed consent" to the changes.
- This alleged lack of information might have gone to two matters: the appearance of the reconstituted stone, and any inherent deficiencies within the Haddonstone itself. As to appearance, I reject the suggestion that Mr McGlinn did not know that it would look different to granite: as I have already pointed out, he saw the brochure, and later his interior designer decided precisely what the Haddonstone would look like, because he approved the colour. Furthermore, I consider that the Claimant's reliance on the letter of 20 November 1998 is:
a) Irrelevant to HTA, because they did not write or approve it;
b) Unfair to WL, because the letter goes on to say in terms that there would be design changes as a result of the reductions.
- In short, I find that Mr McGlinn knew that the Haddonstone would look different to the granite; that he was happy with that change (perhaps because it reflected the look of the house shown in Mr Thomas' original watercolours); and that he never complained about the change in appearance. That just leaves the issue as to whether Mr McGlinn was told about any inherent deficiencies within the Haddonstone itself, which of course depends on whether there were in fact any such deficiencies. I therefore deal with that allegation under Item 1.2.2 below.
(d) Summary
- Accordingly, I reject the allegation that the mere use of Haddonstone was a breach of contract on the part of HTA. Item 1.2.1 therefore fails.
F2.7 Item 1.2.2: Staining of the Stone
(a) The Defect
- Mr McGlinn's complaint under this Item is that the Haddonstone had a variable water absorption which resulted in a patchy appearance after wetting, as it dried out. The allegation is that, whilst the Haddonstone complied with the capillary absorption levels in British Standard 1217, it did not comply with the surface absorption levels in the same British Standard.
- Accordingly, the specific pleaded criticism of HTA was that they failed to specify compliance with the ISAT surface absorption criteria of BS 1217.
(b) Mr Thornton's Evidence
- Mr Thornton said quite candidly that he had never heard of the ISAT criteria. He said that Haddonstone was a good quality product which he had specified before. When he specified it, he did not specify any tests that the product had to meet; as he put it, "I did not question the integrity of the company [Haddonstone] and I would not do so with any other manufacturer if they put a material forward".
- As to the patchy appearance when the stone dried out, Mr Thornton said that this was just the same as the variability in appearance when natural stone dried out.
(c) Mr Jowett's Evidence
- Mr Jowett accepted that reconstituted stone was widely used for the kind of decorative features for which it was utilised at Maison d'Or. He also accepted that Haddonstone was a well-known manufacturer of reconstituted stone products, and that Haddonstone was used on Grade I and National Trust properties. Accordingly, Mr Jowett's criticism was limited to the narrow point that the architect should have specified that the Haddonstone had to comply with the ISAT surface absorption test. I consider that this was an example of an Item where Mr Jowett's criticism was unrealistic, particularly as he himself had never before even specified the use of Haddonstone. There was nothing to suggest that the ISAT test was known to architects of ordinary competence and experience.
- In any event Mr Jowett was cross-examined about the STATS report that was concerned with certain samples of Haddonstone which they had tested, and to which he had referred at paragraph 6.1.27 of his report. The report stated that the porosity of the Haddonstone product was presumably intentional, in order to simulate the surface texture of Portland stone. It also stated that this variability in surface absorption almost certainly explained the patchy appearance that had been reported in the stone in wet weather and thereafter during the drying period. The text of BS 1217 was then put to Mr Jowett because that made plain that capillary absorption testing was suitable for cast stone products intended to exhibit weathered surfaces within the same time scale as many natural stones, whereas the ISAT test was more suitable for products with a denser surface, intended to maintain its initial appearance over many years.
- In other words, it was put to Mr Jowett that the Haddonstone used on Maison d'Or satisfied the relevant test, which was the capillary absorption test, because what mattered was Mr McGlinn's requirement for a weathered and aged look. The ISAT test was therefore irrelevant, because it was designed to test for something that Mr McGlinn had said he did not want, namely an appearance that did not age. Mr Jowett accepted that if Mr McGlinn wanted the aged appearance, that proposition was correct. However he maintained his view that the reconstituted stone had a very poor appearance.
(d) Mr Salisbury's Evidence
- It is right to note that Mr Salisbury accepted in cross-examination that the patchy appearance would have given him cause for concern. When asked whether it would have given "most people" cause for concern, Mr Salisbury was almost bombastic: "I am not most people; I am an architect". There was then this exchange:
"Q: If the client not Mr McGlinn personally, but a hypothetical client with this material saw it being constructed and it looked like that, he might well raise a question with them, might he not, as the architect: 'why does it look like that?'
A: Well, he might do, but these are used up and down the country, and they have not gone out of production yet, so something must be alright with it. It is just that everybody is not a fussy architect like me
I am not sure that any architect could be reasonably expected to know it has a patchy appearance. I have looked at the Haddonstone information and it does not say on its face 'watch out, this material has a patchy appearance'. It says nothing of that kind whatsoever. Nevertheless, Haddonstone is a very widely specified building product that finds acceptance with contractors, builders, clients, up and down the country. So it is difficult to agree with Mr Jowett. I suspect that Mr Jowett does not like Haddonstone; neither do I much, frankly, but that is not quite the point."
- As to the specification point, Mr Salisbury accepted that he had never heard of the ISAT test but he said that, if he wanted to satisfy the ISAT test, he would have to come up with "something that looks like alabaster. It is entirely smooth and without any colour variation on the surface at all; that is not like natural stone".
(e) Analysis of Allegations Re: Staining
- In my judgment, Mr Jowett's criticisms of HTA in respect of Item 1.2.2 were unrealistic and unfair, for the following reasons. First, I consider that, if an architect is specifying a reputable product such as Haddonstone, the identification of the required product is sufficient for specification purposes. It is unnecessary for an architect to specify the product of a reputable well-known manufacturer, and then go on to stipulate that the materials supplied then had to comply with various British Standards or other tests. Although there was no specification as such, for which HTA can be rightly criticised, any specification on this point would simply have referred to the requirement to use the Haddonstone product, which is what Waltham did. So, in respect of this Item at least, nothing turns on the lack of a written specification.
- Secondly, if I am wrong about that, and HTA should have sat down with the British Standards and worked out what tests they wanted the Haddonstone to comply with, they would have concluded that, because of Mr McGlinn's desire for an aged appearance, it was the capillary absorption test that mattered, not the ISAT testing. They would therefore have acted quite reasonably in not specifying compliance with the ISAT test in any event.
- Further and in any event, I consider that, from the photographs and other evidence, the patchy appearance that can be seen in the Haddonstone as it dries out is very similar to the look of ordinary stone in such conditions. Natural materials like stone tend to have a patchy appearance when they dry out; thus, to that extent, the Haddonstone was simply reflecting the natural elements, like stone, which Mr McGlinn had emphasised to HTA. That is a yet further reason why I do not consider that this Item is a justifiable criticism of HTA.
(f) Repairs
- On a number of occasions during the trial, reference was made to photographs which showed that repairs had been carried out, during the works, at the top of the columns. Mr Jowett considered that such repairs were unacceptable and seemed to be suggesting that the entirety of the columns would have to be replaced because of these small areas of repair.
- HTA complained that this was not a pleaded allegation in the Scott Schedule and, having considered the point carefully, I consider that they are right. However, this conclusion does not make any difference to the result because, in my judgment, it was in any event unreasonable to contend that the small repairs that existed on the stone columns should lead to the complete replacement of those columns. Whilst, as I have already said, the existence of a defect in a house of this kind (no matter how small) will often entitle the employer to complete replacement of the item in question, whether or not there is damage, this will always be a matter of fact and degree. In this instance, I do not accept that the existence of such small (and entirely cosmetic) repairs could justify the wholesale condemnation of the columns.
- For all these reasons, therefore, I reject the claim against HTA set out in Item 1.2.2 of the Scott Schedule.
F2.8 Item 1.2.3: Horizontal Ledges/Lintels
(a) The Defect
- There are two alleged defects concerning the Haddonstone quoin stones, string courses, plinths and lintels. The first is that the protruding edges of the quoins and string courses were not weathered, with the result that there was a horizontal edge which allowed water in behind the paint and staining/splashing back. The second complaint, concerning the lintels, was that there was no drip.
- Despite the fact that this Item was principally concerned with the Haddonstone features of the external walls which were, in my view, correctly described by Mr Thornton as "just the detailing elements of the house", I noted (with some surprise) that this was a Lead Item in the Scott Schedule, and the alleged remedial work said to be necessary to rectify Item 1.2.3 would also remediate Items 1.1.1, 1.1.2, 1.1.3, 1.1.4, 1.2.1 and 1.2.2 (and others as well). Thus, it is apparently the Claimant's case that, if I find in his favour on this Item, all the preceding findings on liability in Section F2 of the Judgment are rendered irrelevant, because, on this basis, the entirety of these walls would have had to be demolished and rebuilt in any event. I am bound to say that I find that a very curious result, and one which requires careful analysis.
(b) Drips to Lintels
- There is no doubt that British Standard 5390 provides that there should be a drip in the lintel to prevent water running back into the building. Although there was a good deal of evidence about the existence of some buildings on Chancery Lane with drips, and at least one building in Jersey without (as well as the lintels in the new building at Pembroke College Oxford, which Mr Salisbury designed, some of which had drips and some of which did not), it seems to me that it is inappropriate to judge this allegation by reference to anecdotal evidence about the design of diverse buildings in the vicinity of the RCJ, or anywhere else. What matters are the requirements of good practice, and the British Standard is therefore a proper place to start.
- BS 5390 requires a drip, and for good reason: the drip deflects water away from the edges of the windows themselves. Thus, the absence of a drip was, prima facie, a design defect on the part of HTA. They should have produced drawings which demonstrated a drip in accordance with BS 5390. Alternatively, they should have produced a specification which required compliance with the relevant part of BS 5390. They did neither.
- Accordingly, Mr Salisbury was driven to argue that whoever wrote this part of BS 5390 "did not have much idea of what was going on generally, if he wrote that". It is always unattractive for a Court to ignore the recommendations of a British Standard unless there is a good reason for doing so; Mr Salisbury's extravagant criticism of the author of this BS did not amount to a good reason for departing from its recommendations.
- Accordingly, I conclude that the absence of drips to lintels was a design defect for which HTA are responsible.
(c) The Absence of Weathering
- There was a good deal of debate about the absence of weathering to the edges of the quoins, string courses, etc. It was suggested that, because the protruding edges were horizontal, rather than sloping, they acted as a source of splash back for rain and, possibly more importantly, for water to penetrate behind the render. It was said that they failed to comply with BS 5628 and BS 5390 in consequence. The principal defence mounted by HTA in relation to this item was that, because the rectangular projection was so small (10 mm or so) the weathering would have made no difference: such a detail was said to be impractical for these stones.
- Taking the British Standard point first, I am not persuaded by HTA's argument that the recommendation as to weathering was not applicable to projections of 10 mm or so. Mr Jowett disputed this in his cross-examination, although at one point he said that the size of the projection meant that it was a matter of judgment as to whether or not it should or could be weathered. Mr Salisbury accepted that the BS recommended weathering, which HTA had not provided, and he also accepted that the BS was not, on its face, limited to substantial projections.
- I have concluded that HTA should have followed the BS unless there was good reason for them not to do so. Even if this was simply a matter of judgment, there was no evidence that either HTA, or any reasonably competent architect, were entitled to conclude that the recommendation in the BS could be safely ignored in this instance.
- I also reject HTA's submission that it would have been impractical or meaningless to specify weathering for these decorative features. Indeed, the pages of the Haddonstone catalogue with which I have been provided make clear that the different quoin stones and the like illustrated there are all weathered (i.e. the sides are all sloping, and none of them have sharp 90 degree edges). I have not been provided with any Haddonstone product information which showed non-weathered edges.
- I understand HTA say that the sloping edge was a purely decorative feature of the Haddonstone, rather than an essential weathering feature. I recognise that the sloping edges are shown at both the top and bottom of the Haddonstone products in the catalogue, and that the sloping edge at the bottom would not have any weathering function. However, the fact remains that Haddonstone products are marketed on the basis that they have an upper sloping edge which could serve a weathering purpose in accordance with the BS, and yet the stone specified by HTA here had no such weathering.
- I should also note that there was no explanation as to why the stones used here did not match those illustrated in the Haddonstone catalogue. Mr Thornton did not offer an explanation, and Mr Thomas of course gave no evidence at all.
- For these reasons, I have concluded that HTA should have specified weathered edges. Again, that could have been done either expressly or by reference to the relevant part of British Standard 5390. Again, therefore, I find that HTA were in breach of contract in consequence.
(d) Damage
- The real difficulty (and the topic that occupied much of the cross-examination) in respect of Item 1.2.3 arose in relation to damage and remedial work. Dealing first with the lintels, there is no evidence that the absence of a drip in the lintels caused any damage at all, let alone water ingress into the building. Furthermore, there was some evidence that a groove could have been cut in the lintels to form the missing drip, although it was agreed that this would not be at all straightforward. Looking at the lintel point in isolation, it is plainly fanciful to suggest that the entirety of the external walls in the building had to be torn down and rebuilt, simply so that lintels with the necessary drip or groove could be installed above the windows. On the other hand, lintels with drips were required, whether they were new lintels or modified existing lintels.
- The same difficulties affect the absence of the weathered edges. I am not persuaded on the evidence that weathered stone would have made any significant difference, either in terms of the appearance of Maison d'Or, or in respect of the nature and extent of any water penetration behind the paint work. As to appearance, I found just one photograph which indicated that, in one particular area, there may have been some water splashing back from the Haddonstone string course. I could see no other suggestion of staining as a result of this problem.
- There was no evidence of significant water penetration in or around the stone features with the horizontal edge. Again there were no protimeter readings or any other analysis which demonstrated that water had got in behind the stone. Indeed, in my judgment, it was at this point that the small size of the projection became relevant, because Mr Salisbury demonstrated effectively that, on a projecting ledge 10 mm wide, the rainfall would not be retained on such a surface, and would not therefore penetrate behind the stone (see in particular his sketch at D2/5940). At most, there was a slight risk of increased water penetration as a result of the absence of the weathering.
- There was some evidence of paint peeling by 2002 (see paragraphs 321-322 above). The experts were agreed that the paint was peeling chiefly in areas about 1 metre below the horizontal copings and about 1 metre away from the vertical stone string courses down the edge of the wall. In other words, the peeling was not immediately below the copings or immediately next to the string courses and quoins, but was instead some way from both, although still recognisably towards the corners. Mr Salisbury explained that this was because, when working with render, the labourer has to be very careful when approaching the corners and that, very often, he reworks the render too much in those areas, with the result that the paint does not properly adhere to the reworked or over-worked render. It seems to me that that explanation fits precisely with the areas of peeling paint work that can be seen in the photographs and videos at Maison d'Or. The locations of the peeling paint are not consistent with any significant water penetration in the areas of the horizontal ledges.
- Accordingly, I do not consider that the absence of weathering caused or was likely to have caused any significant damage to Maison d'Or. At most, there was a slightly increased risk of such damage.
- Thus, although I find that Item 1.2.3 constitutes a breach of contract on the part of HTA, I reject the Claimant's case that, in consequence of that breach, there has been actual water damage or even a significant risk of such damage.
(e) Remedial Work
- There is ambivalence at the heart of the Claimant's own case as to the appropriate remedial work necessitated by Item 1.2.3. At paragraphs 6.1.37 and 6.1.38 of his report, Mr Jowett concludes as follows:
"6.1.37 There is no easy solution to the deficiencies identified in the reconstituted stonework. Superficially, the patchy appearance could be overcome by painting, but this would change the appearance from stone to paint and an essential feature of the intended design would be lost. Furthermore, the absence of weathering details in the reconstituted stone elements would be likely to seriously impair the durability of such paintwork. Similarly, a clear waterproof coating could be applied to the reconstituted stone which initially might give it a more consistent appearance, but any moisture retained in the stonework or gaining entry through the interfaces between units or between units and the rendered areas would then tend to cause a "bloom" to appear on the surface as salts in the construction drawn to the stone surface beneath the applied coating.
6.1.38 The only way therefore in which a reliable and consistent stone appearance could be achieved would be by replacing the reconstituted stone elements with those of a different specification and different detailing. The consequences of such replacement would be that the entire outer leaf of the external wall would have to be replaced, which in turn would impact on the windows and doors and the roof edge detailing and require adjustment or replacement of wall ties, support fixing and damp proof courses."
- These paragraphs raise a variety of questions. It was unclear what precisely Mr Jowett meant by "the deficiencies identified". When asked about that in cross-examination, he appeared to say that, at the very least, he included both Items 1.2.2 and 1.2.3, and that this was his conclusion as a result of the cumulative effect of these two Items. Of course, as noted above, I have rejected the allegation against HTA at Item 1.2.2. That was obviously an important element of the advice in Mr Jowett's report at paragraphs 6.1.37 and 6.1.38 (hence his repeated references to the appearance of the stone). Moreover, it is clear from paragraph 6.0.2.2 of his report (paragraph 276 above) that the taking down of the external walls was only justified, on his analysis, because the wall defects had to be taken together with the various allegations concerning the windows (Category 2 in the Scott Schedule). However, for the reasons set out in detail below, I have rejected each of the major window Items against HTA. There is therefore no evidence at all from Mr Jowett, or indeed from anybody else, that Item 1.2.3 on its own, justified the demolition of all the external walls: indeed, it is clear that, taken in isolation, even on Mr Jowett's case, it could not do so.
- More importantly still, because I have rejected the suggestion that this Item gave rise to any actual damage, or anything other than a slightly increased risk of water penetration, the basic assumptions behind these paragraphs of Mr Jowett's report must fall away. Indeed, it is clear from the evidence, both in relation to the external walls generally, and Item 1.2.3 in particular, that it would be absurd to suggest that, because of the absence of weathering on a 10 mm decorative projection, which caused and would have caused no significant damage, the entirety of the external walls must be demolished and rebuilt. Such a suggestion offends against common sense. A reasonable and prudent house owner, when given the facts about the protruding edge, would clearly want to do what he could to protect himself from possible future problems, even if he had been told that the risk of such problems was small. But no house owner would agree to the complete demolition of the external walls of his house, with all the attendant mayhem that that would involve, simply because the decorative stone banding had not been weathered and the lintels did not have drips.
- In addition, and for the avoidance of doubt, I accept the submission made by Mr Bartlett QC and Mr Hamilton, at paragraph 253 of their closing submissions, that paragraphs 6.1.37 6.1.38 of his report showed that, even on the (incorrect) assumptions that he was making, Mr Jowett "was concerned that the proposed remedy for staining was out of proportion to the perceived problem". I consider that that is a fair reading of that part of Mr Jowett's evidence. For the reasons that I have explained, I consider that Mr Jowett was right to believe that such a remedy might be out of all proportion to the problem; in my judgment, it plainly was.
- As I have already noted, Item 1.2.3 is a Lead Item. There was no evidence from either Mr Jowett, or Mr Fitch, the quantum expert, that either of them had advised or suggested that Item 1.2.3 should be presented as such. For the reasons which I have explored above, I consider that it should not have been a Lead Item, because it was principally concerned with a relatively minor defect in a decorative element of the external walls and the lintels above the windows. For the reasons which I have given, I reject the suggestion that such a defect justifies the complete demolition and rebuilding of the external walls. It patently does not. Further confirmation of that, were it required, can be seen in Mr Fitch's build-up sheet for this Item (D5/1228) which, even on the Claimant's case, includes numerous elements of work which are plainly unconnected to the remedial work required for this Item. This finding, therefore, gives rise to a particularly difficult question as to the assessment of loss. I come back to that in Section L2.2 below.
F2.9 Item 1.2.4: Gable Coping Stability
(a) The Defect
- This is a relatively minor matter. The complaint is that where the copings are at an angle, and running either into the conical turret roofs or onto the short horizontal copings, they are unstable. It is said that HTA were at fault in two ways. First, that, on the southern and north eastern gables, abutting the turret roofs, galvanised straps were specified and the fixings should instead have been stainless steel. There were just three such straps in total. The second complaint is that, on some of the sloping gables, where the slope was long and the horizontal run short, there was no mechanical restraint.
- It should be noted that, as a result of my finding of liability against HTA on Item 1.1.1, the copings themselves would have had to have been replaced anyway. It is therefore unnecessary for me to spend too long on this separate Item.
(b) Galvanised Straps
- This is a point that arises in relation to a number of items. The allegation is that, by reference to British Standard 5628: Part 3: 1985, the site of Maison d'Or was severely exposed, so that galvanised steel was inappropriate. The BS makes clear that, save for conditions of severe exposure, galvanised steel was appropriate.
- For the reasons set out in Section F2.4 above, I have rejected the suggestion that this was a severely exposed site. That finding is sufficient for me to reject this Item. Moreover I note that BS 5628 makes clear that the architect simply has to give consideration as to whether or not he uses stainless steel straps. In other words, the use of such straps was a matter for judgment for HTA, and there is no evidence to suggest that they failed to exercise that judgment properly.
(c) Absence of Mechanical Restraint
- On the evidence, this alleged defect may have existed in just two places. Furthermore there was no evidence that, in either location, the sloping gables were unstable or should have had some other form of mechanical restraint. The cracks relied on by Mr Jowett as evidencing movement were agreed to be very narrow, and I accept Mr Salisbury's view that they were more likely than not to be shrinkage cracks. Mr Salisbury demonstrated, by reference to the mass of the horizontal coping in his sketch at D2/581, that there would be no lateral movement in these locations. Mr Jowett accepted the principle of the sketch. Mr Salisbury also made the point that there was no evidence of any lateral cracking which might have demonstrated that there had been any such movement.
- Accordingly, I have concluded that this Item is a theoretical criticism with no basis in fact. I reject the suggestion that HTA's design was unstable because it did not provide for gable copings.
F2.10 Item 1.2.5: Lack of Drip to Apartment Window
(a) The Defect
- Although this is a minor, one-off item, and is concerned with an alleged failure of design in the apartment windows to prevent water ingress, it is of course linked to Item 1.2.3, for which I have found HTA liable.
(b) The Lintel
- I accept that, because the wall was of dressed granite finish, water would run off the leading edge of the granite, rather than back along the lintel. But I still consider that HTA were obliged to comply with BS 5390, and specify a drip to the lintel, unless it could be shown that they had good reason to depart from it. There is no evidence of any such good reason, and they are therefore liable for this Item.
(c) Water Ingress
- I should add that, as Mr Bartlett QC demonstrated in his cross-examination of Mr Jowett, the leak above the window which gave rise to considerable water ingress was wholly unconnected to the lack of a drip. The photographs and the stills from the videos demonstrated that this leak was not there when Waltham left the site and may well have been caused as a result of later opening up work. Mr Jowett confirmed that the water ingress was unconnected to the absence of any drip in the lintel.
(d) Summary
- Accordingly, I find that the window lintel should have had a drip, but that this was wholly unconnected with the leak in this area and the extensive damage thereby caused. The fact that this leak was allowed to continue doing damage for so long, without any attempt at rectification, provides good evidence of the neglect of this property following the departure of Waltham, about which HTA, and the other Defendants, now complain.
F2.11 Item 1.2.6: Insulation to Window Reveal
(a) The Defect
- The complaint is that there was inadequate insulation to the window reveal in the apartment. The criticism of HTA was put by reference to an alleged inconsistency between two of their drawings.
(b) The Omission of the Thermal Board
- In his cross-examination, Mr Jowett accepted that the missing thermal board was shown on the relevant HTA drawing, and that, by reference to that drawing, thermal board would have been expected. The real complaint, therefore, was that Waltham had not complied with the HTA drawing. Mr Jowett accepted that this Item was an omission by Waltham; that it was not a criticism of HTA's design; and that it was simply a criticism of the construction work itself.
- In the light of that evidence, I was surprised to see it suggested, at paragraphs 294 and 295 of the Claimant's closing submissions, that HTA had decided not to require the insulation shown on their drawing, and that this was something on which Mr Thomas would have been cross-examined. There was no evidence that HTA did not require what was shown on their drawing, and, in the light of Mr Jowett's evidence, no design matters on which Mr Thomas' evidence was required. For the same reasons, I also find that the condensation calculations, discussed by both experts, were irrelevant to the issue before me.
(c) Inadequate Inspection
- Given the admission as to the adequacy of HTA's design, the only remaining issue on liability was whether or not Waltham's failure to install the thermal board in this one location should have been picked up during HTA's periodic inspection. Unfortunately, this was not pleaded in the Scott Schedule, and was therefore not a matter which was the subject of the expert's agreement. However, on proper analysis, it seems to me that it could not possibly be said that this one-off error was something which HTA should have spotted on their periodic inspections. This was one small area of a large site where the insulation board would have either been put in (or omitted) quickly, and the relevant area then covered up. I reject the suggestion that this defect can therefore be the liability of HTA.
F2.12 Item 1.3.1: Weatherproofing on Balconies 1 and 2
(a) The Defect
- The Scott Schedule makes allegations in respect of the balconies to both Bedrooms 1 and 2, to the effect that the detailing to the balcony perimeters and balustrade posts was inadequate and that, in consequence, there has been water penetration to the underside of the balcony and through the French doors.
(b) Balcony to Bedroom 2
- At paragraph 6.1.75 of his report, Mr Jowett said:
"The upstand on balcony 2 did follow conventional practice for the height of perimeter upstands but on both balconies, it was noted that the base fixings of bronze extensions to the balustradings penetrated directly through the perimeter lead capping and waterproofing beneath and was reliant only on a mastic seal. Unlike balustrade posts which are set into concrete or stone, and which do not breach the weatherproofing, these balustrade posts should have been detailed as penetrations through a roof membrane, for which conventional practice would be to form an upstand with a weathered capping
"
Mr Salisbury's report, at paragraph 16.11.4, took the opposite view. He said:
"A solid support for a metal post could not be provided unless it was dropped into a socket formed into the concrete of the perimeter upstand. This fixing could not be achieved without penetrating both the lead and the waterproof membrane beneath it. However, if the felt was properly fixed down, penetrating the lead, which is not used as the waterproof membrane, it would have been of no consequence."
- Although Mr Jowett accepted that there was no actual leak via the posts on the balcony for bedroom 2, he maintained that the design was deficient and that there was a risk of such water penetration. On balance, I have concluded that Mr Jowett's view is to be preferred. The design was deficient; at the very least, it required a standard of workmanship which an ordinary builder would not easily be able to attain.
(c) Balcony to Bedroom 1
- The first point to make in respect of the balcony to Bedroom 1 was that the design deficiency in Bedroom 2, noted above, was also present here. In addition, there was evidence of water penetration in/around the balcony to Bedroom 1, although I accept that neither the cause, nor the timing, of this leak are entirely clear-cut.
- The more important point about the balcony to bedroom 1 was the evidence, noted in paragraph 91 above, that this balcony was extended part way through the contract. The inevitable consequence of that extension work was the raising of the height of the balcony floor level itself. That was the direct result of the extension plate fitted onto the balcony. HTA said that, as a result of this change, the balcony and the French doors were the best that could be provided in the circumstances and that, to the extent that there was a problem with the final design, this resulted from the design change made by Mr McGlinn.
- I reject that defence at every level. If the change that Mr McGlinn wanted meant that the detailing of the balcony was going to be less than satisfactory, the very least that HTA should have done was to spell out what the adverse consequences would be. They did not do so. It is no excuse to say now that, if all the work had been properly redone, the existing French doors would have had to have been scrapped and replaced by new French doors, in circumstances where that option was not made available to Mr McGlinn at the time.
- In addition, I note that Mr Salisbury was asked in cross-examination whether or not he believed that the late changes requested by Mr McGlinn provided an excuse for the defects. After a certain amount of fencing, he properly accepted that the changes could not excuse the inadequate design. Mr Jowett made clear in his own cross-examination that the eventual detailing of the balcony to Bedroom 1 was not reliable and that there was a real chance of significant water ingress.
- Accordingly, in all the circumstances, I conclude that this aspect of the design of the balconies to both Bedroom 1 and Bedroom 2 was defective, and that HTA are liable for Item 1.3.1 in consequence.
F2.13 Item 1.3.2: Perimeter Detailing to Terraces
- This Item is not alleged against HTA.
F2.14 Item 1.3.3: Balustrading to Balconies
(a) The Defect
- The allegation is that the balustrade to the balcony of Bedroom 2 was too low in relation to the level of the balcony floor. There is a similar allegation in relation to the balustrade to the balcony to Bedroom 1. However, the experts agreed on 14 July 2006 that "the balustrade to the Main Bedroom (Bedroom 1) was of adequate height and this item should be deleted". Accordingly, I deal below only with the balustrade height for the balcony to Bedroom 2.
(b) The Issue
- The real issue at stake in respect of this Item was extremely theoretical, and centred on the plinth in which the railings were set. The Jersey Byelaws stipulated that the railings had to be at least 1,100 mm in height. If the top of the railings on balcony 2 was measured from the paving level of the balcony, it was in excess of 1,100 mm; as a result, the experts have agreed that "the balustrade height
was adequate in relation to the paving level of the balcony surface." However, because the railings were set into a plinth, the Claimant's argument is that the plinth should be ignored for measurement purposes. It was agreed that the balustrade height was "inadequate if the plinth was taken to be the finished floor level."
- There is a photograph which demonstrates the point in issue, and the role of the plinth. It seems to me clear that anybody standing on the paving level of the balcony would not be in danger of falling over the top of the railings, because the height of the top of the railings from the floor level of the balcony was well in excess of the stipulated 1,100 mm. For a person to be in any danger when standing on that balcony, they would actually have to step up onto the plinth in which the railings are set. I consider that this would be the equivalent of someone starting to climb up decorative wrought-iron railings. It would take the situation outside that contemplated by the Bye-Laws.
- There has to be a certain amount of common sense in the interpretation of the Bye-Laws. Railings that have been set in a plinth will be higher than the equivalent railings that have not been so positioned. Therefore I consider that it is absurd to exclude the plinth from the measurement of the height of the railings, or to take the top of the plinth as the operative floor level. It patently is not.
- For these reasons I reject this allegation against HTA. Confirmation, if it were required, that this is not a sustainable claim against HTA can be found in the fact that, although the evidence was that Mr Wheeler of Charter would have noted any defect in the balustrade in March July 2002, he failed to identify this Item as a defect at all.
F2.15 Item 2.1.1: Glazing to Windows and French Doors
(a) The Defect
- The allegation is that the glazing system was inadequate. In the Scott Schedule, the principal criticism concerned the use of glazing beads, but Mr Jowett accepted that a system using such beads was acceptable. Accordingly the real criticism was HTA's alleged failure to specify a moisture vapour permeable sealant in accordance with BS 8000, a point expressly identified in paragraph 6.2.5 of Mr Jowett's report.
- This is an Item where there was a potential absence of clear evidence concerning the nature and extent of the alleged defect, and any damage caused thereby. First, it is not entirely clear how widespread this alleged defect was. Mr Salisbury only inspected the one window section in the possession of Bickerdike Allen, where a hard setting glazing compound had been used. Perhaps more importantly, there was no evidence of any significant leakage through or around the glazing compound that was used; at the most, one window in one photograph may have leaked through the compound.
(b) Design/Specification
- The first allegation against HTA is in respect of their design. It is said that the HTA drawings provided considerable detail in relation to the windows and French doors, but they gave no details as to the precise method of glazing, and thus there was no specification of a suitable sealant in accordance with BS 8000: Part 7. I consider that these criticisms are unfair. Mr Jowett accepted that, by reference to the British Standards, the choice of window sealant is regarded as a workmanship issue, rather than a matter of design. Therefore, it seems to me that it was a matter for Waltham or, more importantly, their joinery sub-contractor, to ensure that the windows were properly made using an appropriate sealant. A reasonably competent architect would not specify the precise make or type of sealant to be used; that would be a matter for the specialist joinery sub-contractor. Indeed, I formed the impression that this allegation had only been made against HTA because of the unusual amount of detail that had been otherwise included in their window drawings, the suggestion being that, because HTA had gone further than an architect might normally go in providing window details, they should also have specified the precise sealant to be used, however unusual that might be. I do not consider that this was a fair or reasonable basis on which to found an allegation of professional negligence.
- Of course, whatever detail might have been included in their drawings, HTA did not provide any sort of written specification, let alone one that dealt with detailed matters such as sealants for windows. But, because I accept the proposition that the choice of the appropriate sealant was a matter for Waltham, I do not, in this instance, regard the absence of a specification of a particular sealant as a breach of contract on the part of HTA. However, even assuming that I am wrong about that, and the mere absence of a written specification was a breach of contract by HTA, I am in no doubt that it was not causative of any loss, because, regardless of HTA's omission, an appropriate specification was provided to Waltham in any event.
- As set out in paragraph 44c) above, the Bills of Quantity prepared by WL, and relied on by the Claimant as part of his contract with Waltham, made express reference to BS 8000. Accordingly, even though HTA might have been unaware of it, it appears that, if Waltham had complied with their contract, the moisture vapour permeable sealant would have been used.
- This point was anticipated by Mr Salisbury during his cross-examination:
"Q: That the architect has failed to specify the need to comply with BS 8000 in respect of the type of sealant used?
A: As far as I am I have not seen a requirement to comply with BS 8000. Whether or not that was the case, I simply do not know.
Q: Well, assuming, Mr Salisbury again, we have to defer in relation to facts to others, but assuming there is no specification to comply with BS 8000, that was a critical omission, was it not, the architect having chosen this particular glazing method?
A: There may well be a general 'cover all clause' in the specification which says where a BS is applicable and should be applied, but certainly it would be wise in the circumstances to make some kind of reference to BS 8000, I agree with you
"
It seems to me, therefore, that even if, contrary to my primary finding, HTA were in breach of contract because they failed to specify the particular sealant to be used in the window construction, that failure was not causative of loss, because the contract documents made plain that Waltham had to comply with BS 8000. Thus the existence of what Mr Salisbury described as "a general 'cover all clause'" meant that any specification failure on the part of HTA in respect of the sealant did not ultimately make any difference.
(c) Inspection
- There was a suggestion that this allegation could be put as a matter of inspection, the argument being that HTA should have seen the hard setting sealant being installed during their periodic inspections. This was not expressly pleaded in the Scott Schedule. Further, when he came to be cross-examined on the point, Mr Jowett accepted that, on inspection, the architect could not be expected to identify the particular type of glazing compound being used in the installation of the windows. This was, in my judgment, entirely consistent with Mr Jowett's view that the choice of sealant was a workmanship issue.
(d) Damage
- I should also say that, even if I had concluded that HTA were in breach of contract in respect of the absence of a specification for the glazing sealant, and that the breach was causative of Waltham's default (both of which suggestions I reject for the reasons noted above) I would not have found HTA liable for the cost of new French doors and windows. That is because there was no proper evidence of any actual or imminent water ingress through the French doors or windows, much less any evidence of ingress because a hard setting compound, rather than a moisture vapour permeable sealant, had been used. With the exception of one stained window sill, the cause of which was entirely unclear, there were no photographs of leaks in and around the windows. In addition, I find that there was nothing to suggest that there was any real risk of leakage in the future as a result of the choice of the hard setting compound by Waltham's joinery sub-contractor.
- Mr Jowett's evidence on this topic was revealing. Having admitted that 'any water ingress owing to the contractor's use of the wrong sealant [was] very minor,' he endeavoured to emphasise the risk of possible leakage in the future. However, when he was cross-examined on the point, he reverted to his fundamental argument that, because this was a high quality house, anything that might be regarded as defective has to be replaced or done again. He said "even a small amount of leakage would be regarded as completely unacceptable
" I reject that argument on the facts of this Item for the reasons set out above; there was no evidence of any leakage, actual or prospective. Furthermore, in contrast to some of the earlier Items, I conclude on all the evidence that there was nothing to suggest even a slightly increased risk of water penetration around the windows as a result of the choice of a hard setting compound.
- For these reasons, had there been any causative breach of contract on the part of HTA, I could not have concluded that such a breach necessitated the complete replacement of the windows and doors in any event. As a result, one of the important matters relied on by Mr Jowett in support of the demolition of the external walls (see paragraph 6.0.2.2 of his report) falls away.
F2.16 Item 2.1.2: Turret Window Mullions
(a) The Defect
- The defect alleged here is the inadequate seal to the mullion-to-mullion and/or sill joints in the turret window mullions. The criticism appears to be that HTA's drawings did not provide details of how the sub-frames were to be fixed or sealed into the mullion and that, in practice, the mullion had been formed in two pieces with no (or no adequate) water bar to prevent water ingress between the sections and no adequate seal at the sill joint.
(b) The Relevant Facts
- Mr Thornton gave some evidence in relation to this Item. He said that there was a change between the HTA drawings and the way in which the windows were in fact constructed. He made it plain that, when agreeing to the change, he relied on the advice of the specialist joiner, with the clear inference that, in his view, such reliance was reasonable. He said:
"A: I mean, in a situation like this, if a sub-contractor feels I am not a joiner; I am an architectural technologist, and if a joiner feels, because of his specialist knowledge and his working practices or whatever, I am not somebody that would completely disregard a sub-contractor's or a specialist contractor's knowledge and utilities of the materials.
Q: So on this item, your position is that you were entitled to rely upon the specialist advice of the sub-contractor?
A: I would rely on any specialist advice, yes."
(c) Mr Jowett's Evidence
- Mr Jowettt accepted that an architect would not tell the joinery specialist how to do his job. It seems to me therefore difficult to say that these windows, which were manufactured by a specialist joinery sub-contractor, contained defects which were the responsibility of HTA. Although I accept that there is not the sort of full paper trail there perhaps should have been, showing how the design evolved, I have concluded that HTA were not in breach of contract in respect of this Item.
(d) Remedial Work/Damage
- Further, in a similar fashion to the previous Item, I am not persuaded that there was any evidence of water ingress around these windows. It appears that, again, the highest that it could be put is that, in one location, there was one capture from a video which seemed to show some water ingress. I regard that as insufficient evidence to justify the wholesale replacement of all the turret window mullions.
F2.17 Item 2.1.3: Billiard Room Door Unrebated
(a) The Defect
- The Claimant contends that Waltham failed to construct the meeting stiles as shown on HTA drawing 1120/33A and installed an unrebated meeting stile to the French door. This construction defect is admitted by HTA. The issue is whether this was something that should have been, or indeed was, seen during Mr Thornton's periodic inspections.
(b) Inspection
- It was Mr Thornton's evidence that he knew that the door was defective and that he had instructed Waltham to replace it. The difficulty, of course, for Mr Thornton was that, if he had given any such instruction, it was not recorded in writing and there was no note of it anywhere. Furthermore, without any such record, it is not possible to say that a deduction from the appropriate interim valuation had been considered by WL, let alone made.
- I take the view that an ordinarily competent architect should do more than Mr Thornton did if he notices an item of defective work such as this. He must take all possible steps to ensure that the defective element is replaced. In this case, he should have written to Waltham and made it plain that, if they did not rectify the defect immediately, a deduction would be made from the interim certificates. I conclude that his failure to do this renders HTA liable for this Item.
F2.18 Item 2.1.4: Softwood Window Surround to Dormers
(a) The Defect
- In the central tower of Maison d'Or there are four dormer windows. The allegation is that those dormer windows should have been hardwood but were in fact made of softwood.
(b) Specification
- Essentially, therefore, the allegation against HTA is that they failed to specify hardwood windows in this location, and that they allowed the installation of inferior softwood instead. I reject that allegation. There is nothing in the documents to indicate that Mr McGlinn required hardwood window surrounds for these four windows; neither is there any part of a British Standard, or other technical guidance, which requires the use of hardwood in this location.
- Further and in any event, I reject the notion that, because the windows were softwood rather than hardwood, this caused or could have caused a greater maintenance obligation, and was therefore not in accordance with Mr McGlinn's general requirement for a low-maintenance property. The softwood window surrounds were painted, as they would have been if the wood had been hardwood, and they therefore would have required repainting at some stage in the future, just as hardwood windows would have done.
- For these reasons, I reject this Item against HTA.
F2.19 Item 2.1.5: Ironmongery to Windows and French Doors
(a) The Defect
- There are three alleged defects under this item. As set out in the Scott Schedule they are pleaded as follows:
"(a) Lever handles to windows have a plated finish on base metal. This is inadequate for a marine location.
(b) Lever handles to doors are lacquer finish on brass. A lacquer finish is unsuitable for a marine location.
(c) Locking mechanisms for windows are of plated mild steel with plated steel screw fixings. This is inadequate for a marine location."
Accordingly, the essential allegation is that the internal ironmongery for the doors was not suitable for the marine location of Maison d'Or.
(b) Relevant Facts
- Mr Thornton gave evidence about the ironmongery on the doors. He said that Waltham built a complete window, together with all the proposed ironmongery (such as handles, locks, etc) for inspection and approval by TDD. TDD inspected and approved all the lever handles and locking mechanisms. That ironmongery was then installed throughout the property. According to Mr Thornton, HTA operated on the basis that the ironmongery that is now criticised had been approved for use by Mr McGlinn's interior designer.
- Mr Disdale said that stainless steel would not have been an appropriate alternative specification. Mr Berryman of TDD went one step further and said that he often used lacquered metal on boats; he said: "most of the door hardware we use is plated brass, which is lacquered". This was important evidence, because TDD's principal business concerned the fitting-out of luxury yachts; therefore, it might be thought that Mr Berryman's knowledge and experience of appropriate ironmongery for ocean-going vessels was of some considerable relevance to the allegation that lacquered brass was unsuitable for a marine location.
(c) Exposure
- I have already made the point that, in my view, this site was not severely exposed and that, although the proximity of the sea was a factor to be taken into account when the design and specification was being considered, it is important that this point is not overstated. Furthermore, the boats for which Mr Berryman commonly specified lacquered brass were exposed to a much more extreme marine environment than Maison d'Or.
(d) Specification
- There is no suggestion that Mr McGlinn had requested a particular type of ironmongery. Neither is there any British Standard or other published recommendation with which it is said the lacquered brass at Maison d'Or failed to comply. Given the evidence of Mr Thornton and Mr Berryman, it is difficult to see how this alleged breach of contract can be made out against HTA. The Claimant's closing submissions say that the ironmongery was "obviously unsuitable" but in truth the only evidence relied on is that of Mr Jowett, who had much less experience of the use of lacquered brass in a marine environment than Mr Berryman. In my judgment, HTA acted reasonably. They specified internal ironmongery of a type used by a specialist interior designer of luxury boats. They sought and obtained the approval of that ironmongery by that interior designer. In those circumstances, I do not consider that there is any basis for suggesting HTA were in breach of contract.
(e) Damage
- There was a certain amount of debate as to the extent to which this ironmongery had been corroded by the marine environment. The photographs demonstrated a certain amount of corrosion of some screw heads, although, in my judgment, this was relatively modest. Furthermore, it is at least possible that this corrosion was in part the product of the neglect of the building following its substantial completion in January 2002.
- For all these reasons, therefore, I conclude that HTA are not liable in respect of Item 2.1.5.
F2.20 Item 2.1.6: Use of Galvanised Steel Fixings for Windows
(a) The Defect
- The allegation concerns the fixing plates and screws in the windows. They were made of galvanised steel. The allegation is that they should have been stainless steel.
(b) Specification
- Many of the same considerations apply here that have already been set out in respect of the preceding Item. Again, Mr Jowett accepted that there was no British Standard that stated that the straps had to be stainless steel rather than galvanised; on the contrary, he accepted that galvanised steel straps were commonly used to fix windows. Again, therefore, I do not consider that HTA were in breach of contract because they approved Waltham's use of galvanised straps.
- I note that, at paragraph 314(2) of the Claimant's closing submissions, it is said that "galvanised steel fixings are plainly unsuitable. The proof of the pudding is in the corrosion and loss of galvanising protection which has occurred". In my view, the evidence of damage in this instance, such as it is, does not prove the alleged unsuitability of the fixings at all (see below).
(c) Damage
- The experts agreed that such straps as had been photographed or otherwise examined "were not significantly corroded". Mr Jowett said that some straps that he had seen were marked with superficial rust. Mr Salisbury said that, in one of the videos, you could see some of the windows piled up where the straps were "bright", and therefore uncorroded. I must say that, in my view, the few photographs of corrosion scattered throughout the bundles were unimpressive. Thus, taking that evidence together, I find that the straps were not significantly corroded and many (perhaps most) were not corroded at all. I therefore find that the performance and reliability of the windows would not have been affected by the fact that the straps were galvanised rather than stainless steel.
- This is important because, even if I had concluded that HTA were in breach of contract in respect of Item 2.1.6, I would not have found that the measure of damage was the replacement of the entire windows, as alleged by the Claimant. Mr Jowett defended the pleaded case that the windows had to be taken out, but he made clear that that was only if it could be shown that it was likely that the windows were rendered unreliable by the galvanised steel straps. If they were not unreliable, therefore, it was unreasonable even on Mr Jowett's view - for the windows to be taken out.
- I have concluded on the evidence that the windows were not unreliable and that, even if HTA had been in breach of contract, it was wholly unnecessary to take out the windows simply to replace these small straps. In those circumstances, I reject the Claimant's claim under Item 2.1.6 in any event. This is an important conclusion, not only in relation to this Item, but because success on this point was a necessary ingredient of Mr Jowett's view as to the need to demolish the external walls (see paragraph 6.0.2.2 of his report).
F2.21 Item 2.2.1: Quality of Timber to Windows and French Doors
(a) The Defect
- This Item relates to all the windows and the French doors. The pleaded defect is that the idigbo was poorly selected and contained machine marks, notches, and poor quality jointing. The allegation against HTA is of a failure properly to inspect.
- The quality of the photographic or other evidence in relation to this Item was poor. Mr Jowett confirmed that there were only two recorded instances where the timber contained "shakes". He also said that there was some staining, but it was difficult to say what had caused it. There was no evidence of any other specific problems with the quality of the timber.
(b) Inspection
- I draw a distinction, as the experts did, between the two windows that evidenced shakes (splits) and the other allegations to the effect that HTA should have pointed out deficiencies in the timber.
- As to the windows with shakes, I note that the experts have agreed that "these should have been replaced before Practical Completion". I take that to mean that HTA should have done something positive well before the end of 2001 to get those windows replaced. In my judgment, that is what should have happened. It is clear that the two windows in question were unacceptable and would always have had to be replaced. There was simply no point in waiting until the handover/snagging process before HTA condemned these windows: for the reasons set out at length in Section E3.8 above, when faced with work that was plainly defective but purportedly finished, as these windows were, HTA should have condemned them well before the end of 2001.
- Accordingly, I consider that HTA were in breach of contract in respect of the two windows which exhibited shakes.
- As to the other matters, it seems to me that the position is very different. Mr Jowett properly said, at paragraph 6.2.35 of his report, that, apart from the two instances of shakes, "the remaining deficiencies were generally of a type which might be called snagging defects, in that they would probably have been capable of in situ remedy and making good". This seems to me to be a clear statement that the other deficiencies in the timber were matters which could properly indeed should properly have been left by HTA to the snagging/handover process. In those circumstances, it seems to me that it would be inappropriate to criticise HTA as a result of the existence of those items.
- At paragraph 328 of their closing submissions, Mr Williamson QC and Mr Selby endeavour to get round the difficulty created by Mr Jowett's frank opinion that the remainder of the deficiencies in the timber were snagging items. They say that this view has to be read in the context of Mr Jowett's evidence as a whole, and his emphasis on the need for proper snagging lists and the like. However, in my judgment, this argument ignores the fundamental point that these were matters which, in accordance with the principles outlined in Section E3.8 above, HTA were entitled to leave to Waltham until the snagging/handover process, because they had not yet been completed. Since the snagging/handover process had not even started, HTA cannot be criticised for the absence of proper snagging lists. Thus the argument at paragraph 328 does not bite.
- Accordingly, I take the view that HTA were liable for failing to inspect and condemn the two windows that exhibited the shakes. They are not liable in respect of any other of the deficiencies alleged under Item 2.2.1.
(c) Specification
- There was a large amount of debate about the use of the expression in the Bills "wrot oak". It was suggested that this was inadequate to define the intended quality of the timber. There are a number of points which arise from this.
- First, this allegation is redundant in view of my findings above. The two windows that exhibited shakes should have been condemned much earlier, and HTA were in breach of contract in consequence. The other deficiencies are snagging items which could be rectified in situ. Neither of those situations is linked or connected in any way to the use of the words "wrot oak" in the Bills.
- Secondly, the expression "wrot oak" was not used by HTA, but by WL in the Bills. HTA cannot be criticised for an entry in a document which they did not prepare. Thirdly, since the oak was changed to idigbo, the words "wrot oak" in the Bills were rendered meaningless and irrelevant in any event.
- Finally, to the extent that it is suggested that HTA failed to specify the high quality timber required, it seems to me that, in this instance, the specification allegation is misconceived. I address below, under Item 2.2.3, the use of idigbo where, amongst other things, I conclude that idigbo was a high quality material that was suitable for use at Maison d'Or. Thus the failure on the part of HTA (if that is what it was), to produce a written specification for a high quality timber for use at the house, was rendered irrelevant by their approval of idigbo. For all these reasons, therefore, I consider that the allegation in relation to the words "wrot oak" in the Bills ultimately went nowhere.
(d) Damage
- I should also make the point that Item 2.2.1 has not been separately costed in any event. The Scott Schedule operates on the assumption that it would have been rectified automatically if Item 2.1.1 (the glazing compound allegation) had been made out against HTA and had justified the complete replacement of the windows and French doors. Since, for the reasons set out in Section F2.15 above, the Claimant's case on Item 2.1.1 has failed, it is irrelevant for the purposes of quantification. Thus the Claimant now has a difficulty because, even if, contrary to my findings, I had concluded that HTA were in breach of contract in respect of all the elements of Item 2.2.1, there is no identifiable remedial work to which a damages figure could attach. The same problem applies specifically to the replacement of the two windows with shakes, which I have found to be the limit of HTA's liability. I return to that point in paragraph 857 below.
F2.22 Item 2.2.2: Inadequate Surface Protection
- In the Claimant's closing submissions, at paragraph 539, this Item was withdrawn against both HTA and WL.
F2.23 Item 2.2.3: The Use of Idigbo and Not Oak
(a) The Defect
- This is the third and final Item in the Scott Schedule based on the changes to the original work scope. This concerns the change from oak to idigbo. It is again said that, as a result of HTA's default, Mr McGlinn did not give 'informed consent' to this change.
- It is important to note that the architectural experts are agreed that the use of idigbo was "technically suitable". There was no suggestion that idigbo was an inferior wood, or in some way unsuitable or inappropriate for use in the locations that it was used at Maison d'Or.
(b) The Relevant Facts
- The relevant facts concerning this change are set out in Section C7.2 above. The change to idigbo was known to Mr McGlinn, who saw a sample of it, and whose interior designer, TDD, approved it at the meeting in April 1999. In my judgment, there can be no possible ground now, in the light of the experts' acceptance of the idigbo as technically suitable for use here, for an allegation that HTA were in some way in breach of contract for changing the oak to idigbo.
(c) 'Informed Consent'
- As to the suggestion that Mr McGlinn did not give informed consent to the change from oak to idigbo, I consider that this argument is untenable for the reasons already noted in connection with the Haddonstone. Indeed, in respect of the Haddonstone, there was at least the point that could be taken (albeit ultimately unsuccessfully) that the reconstituted stone looked different and performed in a different way to granite. But the idigbo looked the same as oak and, as the experts have agreed, was technically suitable. There was therefore no relevant information that was withheld from Mr McGlinn; if there was, it was information that could have only strengthened his view that the proposed change was acceptable.
- For all those reasons, therefore, I reject this aspect of the Claimant's case, and I agree with paragraph 320 of the closing submissions of Mr Bartlett QC and Mr Hamilton, where they express their puzzlement as to what it is that Mr McGlinn claims he did not sufficiently understand about idigbo. In my judgment, there was nothing that he did not understand, and I find that no relevant information was witheld.
(d) Staining
- Finally, I should deal with the suggestion that in some way the idigbo was prone to staining. This was not fully developed in the evidence. Mr Thornton said firmly that idigbo was no more prone to staining than oak, and that it stained in a similar way. There was nothing to counter this view. To the extent that this criticism is maintained, therefore, I reject it.
F2.24 Item 3.1.1: Joinery to the External Doors
(a) The Defect
- This is a complaint about the three external doors: the one to the main house, the one to the service flat, and the one to the garage. The complaints are put in precisely the same terms as the complaints at Item 2.2.1, which, save for the 'shakes' point, I have previously rejected in Section F2.21 above.
(b) The Main Front Door
- Mr Salisbury described the main front door as "luscious". Whilst that may not be an adjective with which the Claimant's advisers agree, Mr Jowett accepted that the main door for the house was not defective, and that is recorded in the experts' agreement of 14 July 2006.
(c) The Other Two Doors
- The condition of the other two doors was unclear. There did not appear to be any photographs of these doors. The experts agreed that some damage to those doors appeared to have occurred after Waltham's departure from site. Perhaps more importantly, Mr Jowett accepted in cross-examination that such defects as there were to the other two doors could fairly be described as snagging items. In accordance with the principles set out in Section E3.8 above, I find therefore that they were matters which HTA were entitled to assume would either be rectified by Waltham prior to handing over for snagging, or at the snagging stage. HTA are not liable to Mr McGlinn for these snagging items in the doors, even assuming that they existed prior to Waltham's departure.
- For those reasons, therefore, I find that this allegation is not made out against HTA.
F2.25 Item 3.1.2: Inadequate Surface Protection
- In the Claimant's closing submissions, at paragraph 539, this Item was withdrawn against both HTA and WL.
F2.26 Item 3.1.3: Oak to Idigbo
- This Item repeats, in respect of the three doors, the allegation concerning the use of idigbo at Item 2.2.3 of the Scott Schedule. At Section F2.23 above, I have explained how and why that change cannot be a breach of contract on the part of HTA. Accordingly this Item also falls to be rejected.
F2.27 Item 3.1.4: Ironmongery to the External Doors
(a) The Defect
- This Item concerns the ironmongery on the three external doors. The allegation repeats Item 2.1.5 of the Scott Schedule, which I have dealt with and rejected for the detailed reasons set out at Section F2.19 above. Those reasons would also have been applicable to this Item, but I note that this allegation was abandoned in the Claimant's closing submissions.
(b) Staining
- It is also pleaded in the Scott Schedule that various components have caused staining as a result of their reaction with idigbo. However, Mr Jowett and Mr Salisbury agreed that "there is no evidence of staining from the external doors". I therefore reject this separate allegation; it is clearly contradicted by the agreed evidence of the experts.
F2.28 Item 4.1.1: Quality of the Slates
(a) The Defect
- The allegation is concerned with the roof slates. Although there are pleaded points to the effect that the slates have a high water absorption rate and low bending strength, the principal criticism is that they were defective because, after Waltham left site, they exhibited extensive pyrites staining.
- This is another Item where the photographic records this time of the pyrites staining - were unsatisfactory. The Claimant relied principally upon three photographs taken in the summer of 2002 which allegedly showed some pyrites staining on some slates on two of the 19 roof slopes. Mr Salisbury, rather surprisingly, then identified some more photographs which he said were relevant. But there is no clear record of the extent of the pyrites staining at the time the roof was removed, either in respect of the whole roof, or its individual slopes. The best, I think, that can be said is that there was some staining on most slopes by 2004.
- It was common ground that at least some of the batches of slates supplied to Waltham were of poor quality. The suppliers, a reputable organisation called Villar del Rey, apparently provided a guarantee, but it does not seem that Mr McGlinn has ever endeavoured to rely on or activate that guarantee.
- [Not Used]
(b) The Relevant Facts
- As noted in Section C6 above, Waltham's original tender was expressly based on the provision of Spanish slates. Mr McGlinn accepted that tender. Later, on 24 March 2000, Waltham wrote to HTA in the following terms:
"We are ready to place our roof slating contract with a mainland contractor and he is proposing to use Best Quality Grade A Spanish Slates supplied by Villar del Rey. We enclose details and certification for the slates and seek your approval for their use."
The letter enclosed a series of documents relating to these slates, including test certificates and the like.
- Mr Jowett was asked about these technical documents, and whether they could be fairly criticised. This passage of his cross-examination was important:
"Q: Villar del Rey are a quarry who have been supplying slates for 300 years; is that not right?
A: If you say so.
Q: They are a well-known and reputable supplier, are they not?
A: I believe so.
Q: And the slates were said to exceed the requirements of the British Standard, BS 680?
A: Yes.
Q: And the 75 - year guarantee was offered?
A: Yes.
Q: And in your view, the specification agreed by the architect was satisfactory?
A: Grade A and compliant with British Standard 680, yes."
(c) The Allegations Against HTA
- There are two allegations against HTA in respect of the quality of the roof tiles. The first is that they fail to provide any or any adequate specification for the roof slates. The second is that they failed to identify the deficiencies in the slates "during normal periodic inspection of the work".
(d) Specification
- The first point to make is that the Claimant's pleaded case, and the report of Mr Jowett, proceeded on the incorrect assumption that the use of Spanish slates was a change from the original contract requirement. Actually, as we have seen, the original Waltham tender, which Mr McGlinn accepted, was expressly based on the use of Spanish slates. There was therefore no change.
- HTA never provided a specification in respect of the slates. Technically, therefore, they were in breach of contract in failing to specify at the outset the slates to be supplied. However, on the evidence of Mr Jowett, such a breach was irrelevant and not causative of loss. During his cross-examination, the Claimant's pleaded case as to the failure to provide an adequate specification was put to Mr Jowett, in the light of his view that the specification of the slates in March 2000, in the terms of the Waltham letter, was satisfactory (paragraph 478 above). There was this important exchange:
"Q: If the agreed specification was satisfactory, do you know what the relevance of that allegation is supposed to be?
A: I think that it is for the court to decide, but the allegation is actually correct, I think, in that there was no specification, or detailed specification.
Q: If an architect agreed that the specification was satisfactory, can you help his Lordship at all as to why that allegation was included and is still maintained today?
A: No, I cannot."
- On the basis of Mr Jowett's evidence, it therefore seems to me that the allegation in relation to the specification must fail. It is true that Mr Salisbury referred to "confusion" surrounding what was specified, but his rather fragmented evidence on this point was possibly explained by the fact that he had not actually seen the letter of 24 March 2000 prior to his cross-examination.
- Although it is also fair to say that Mr Salisbury was somewhat dismissive about Spanish slates, it seems to me that no criticism can attach to HTA in respect of the use, per se, of such slates on the roof. I think it is fanciful to suggest that HTA should have required the slates to be the subject of water absorption or bending strength tests. These were slates which were, on the face of it, appropriate, being supplied by reputable suppliers and with the benefit of a proper guarantee. I think it is artificial to conclude that HTA should have done more in relation to the specification of these slates. The problem concerned the quality of the particular batches of slates that were supplied. As against HTA, that can only be an issue of inspection.
(e) Inspection
- As noted above, the allegation is that the pyrites should have been seen by an ordinarily competent architect on his periodic inspections, and that this would have led HTA on a train of enquiry which would have ended up with all of the slates being condemned. Accordingly, there are two sub-issues: i) when should HTA's inspections of the roof have been carried out; and ii) what should have been seen on such inspections?
i) Timing of Inspections
- Clearly, an architect making periodic inspections would be obliged to inspect the roof as it was being laid. It was such an important element of the construction that, in the present case, the roof probably should have been the subject of at least two inspections during the summer/autumn of 2000, one early on in its construction, and one at the time that it was completed.
- Between the autumn of 2000 and the end of 2001, the roof had been completed, and the vast majority of the works on site were thereafter going on inside Maison d'Or. It appeared to be part of the Claimant's case during the cross-examination of Mr Salisbury that, during this period, HTA should have carried out further periodic inspections of the completed roof. I reject that contention. I agree with Mr Salisbury that, once Mr Thornton had inspected and approved the completion of the roof, he had no need to look again at the roof on his next visit. I accept Mr Salisbury's evidence in cross-examination that "to look for deterioration in a building during the construction period is really not something that one does on regular inspections." In my view, it would be artificial, and unduly onerous, to impose upon an architect making periodic inspections the duty to re-inspect areas of work which have been completed and approved at an earlier stage of construction.
- An architect carrying out periodic inspection would also be obliged to carry out a further inspection of the roof at the snagging/handover phase. Of course, that phase was never reached in the present case. Thus, it seems to me that, apart from the inspections at the time that the roof was first laid and then completed, and the final inspection for snagging/handover purposes prior to Practical Completion, an ordinarily competent architect carrying out a periodic inspection function would have had no obligation to inspect the roof in the intervening weeks or months, unless there was something about the roof which triggered a concern, and which therefore justified a further inspection. I note that this approach was broadly agreed by Mr Jowett in his cross-examination:
"Q: I suggest, I do not know whether you know this from your own experience or not, but a project architect making periodic inspections to see if the work was generally satisfactory would usually look at the slates when they were first done and then again at the end of the contract; is that fair?
A: More or less, yes."
ii) Adequacy of Inspections
- There was no evidence of any pyrites staining when the roof was laid in the summer/autumn of 2000. This point was expressly confirmed by Mr Jowett in his cross-examination:
"Q: You have not seen any evidence, have you, that pyrites was visible when these slates were first laid?
A: No. I mean, I have looked at that particular point and I think the photographic evidence that there is is that the slates looked reasonable at the time in those locations where the architect or whoever was photographing them.
Q: So you are not suggesting that Huw Thomas should have commissioned an investigation into these slates while the contract was still running?
A: When the slates were being fixed, I think that I would not have expected Huw Thomas from the evidence that I have seen, to have seen that the slates contained pyrites and that was something which would have alerted him to anything
"
- I respectfully agree with Mr Jowett's assessment of the photographic and other evidence. There was simply nothing to indicate that, in the summer/autumn of 2000, there was any sign of defects of the slates. Mr Williamson QC complains that, in his statement, Mr Thomas indicated that this was a topic on which he was going to give evidence, and so he submits that I should draw the inference from the failure to call Mr Thomas that there was such evidence in the summer/autumn of 2000. I am unable to draw that inference in the light of the clear evidence to the contrary of Mr Jowett, the Claimant's own expert.
- Of course, for the reasons set out in Section C13 above, this project never reached the snagging/handover stage, so there was in fact no inspection in late 2001/early 2002. The crucial question then becomes whether, as Mr Jowett put it, "towards the end of the job" there was sufficient sign/warning of pyrites to lead HTA on a chain of enquiry which would have led to the condemnation of the slates. I have considered the evidence on this point very carefully and I have concluded that, whilst there may have been the odd pyrites stain that might have been visible to HTA (had they been looking for it) before Waltham left site, there was nothing which would have led them to decide to re-inspect the roof more closely, and nothing which would have triggered the necessary chain of enquiry to lead to the condemnation of the slates. My reasons for that view are set out below.
- The best evidence of what could be seen in late 2001/January 2002 comes from the records from January 2002 onwards, there really being no other material available. The starting point is the Waltham video made on 24 January 2002. There is nothing in that video which indicates pyrites staining, even though Mr Prinn of Waltham appears to have looked at the roof quite carefully on that occasion, because he points out missing slates.
- More tellingly, Maison d'Or was the subject of a thorough inspection by Mr Wheeler in the spring and early summer of 2002. As noted in paragraphs 109-115 above, Mr Wheeler's detailed schedule made no mention of pyrites staining. Mr Bartlett QC and Mr Hamilton therefore take the not unreasonable point that, if such staining was not apparent to Mr Wheeler doing a thorough inspection some months after the project came to an end, it cannot possibly be argued that HTA should somehow have seen (and acted upon) such staining months before.
- The Claimant's attempted answer to that is to say that the Wheeler inspection was largely internal and that the external inspection was short. I do not accept that. The evidence that I have summarised at paragraphs 112-113 above was clear: Mr Wheeler was requested to do a thorough investigation of the property, with no qualifications. The fact that there were many more alleged defects inside than out merely reflected the fact that, at least at that time, the problems were largely felt to relate to the finishes and internal works. After all, in the spring/early summer of 2002, the external works looked largely as they had looked for the preceding 18 months, and it might be thought that, if there were aspects of the external works which Mr McGlinn did not like or considered to be defective, they would have been pointed out well before then. It is therefore unsurprising that the list of external items in Mr Wheeler's schedule is much shorter than the list of internal items. In any event, within that list of external items, there was a reference to slipped slates. Mr Wheeler therefore inspected the roof; equally plainly, he did not identify the pyrites staining. I am not prepared to find that HTA should have noted the pyrites staining in late 2001 when Mr Wheeler failed to do so in the spring/early summer of 2002.
- In order to make his criticisms of HTA's inspections, Mr Jowett relied on three photographs of two different roof slopes, only one of which had an exposure that allowed the slates to be clearly identified. The photographs were taken in the summer of 2002. It was Mr Jowett's evidence that, by reference to these photographs, on one slope 40 out of 420 slates were affected by pyrites, and on another, 40 out of 320 slates were similarly affected. He said that these were the slopes with the most pyrites staining. He also said that there was a total of about 8,000-10,000 slates on the 19 different roof slopes.
- Mr Salisbury gave similar evidence as to what could be discerned from these photographs, although he originally counted 40 slates on the whole roof that had a pyrites crystal on them. Later in his evidence, he referred to additional photographs from the same period, including some of roof slopes not referred to by Mr Jowett, which he said also showed some pyrites staining and some other dark staining which he maintained was not pyrites. He reiterated his view that these would not have been apparent during normal periodic inspections.
- Accordingly, on the basis of all this evidence, I make the following findings:
a) There was no evidence of pyrites staining when the roof was laid in the autumn of 2000.
b) Some very limited pyrites staining was developing during the latter part of 2001, and can be seen, in more advanced form, in the photographs referred to by Mr Jowett and Mr Salisbury dating from 2002.
c) This very limited pyrites staining that was beginning to develop in the latter part of 2001 would not have been apparent on Mr Thornton's periodic inspections, particularly since he had no need or obligation to re-inspect the roof at this point (see paragraphs 486 and 487 above). Such staining would certainly not have been sufficient to trigger any alarm bells on the part of HTA just as, a few months later, it rang no alarm bells for Mr Wheeler.
d) Accordingly, although it is likely that there was some very limited pyrites staining by the end of 2001, when Waltham left site, it was not at that point sufficient to have triggered any obligation on the part of HTA to re-inspect the roof or to embark on any chain of enquiry that would have led to the condemnation of the slates.
(f) Causation
- I should also say that, even if I were wrong about that, it is clear on the Claimant's own case that the very earliest that there could have been any pyrites staining that should have triggered a concern on the part of HTA would have been sometime in the middle of 2001. Even if, which I do not accept, HTA should have spotted a problem in, say, June/July of 2001, it would not have been a straightforward (or quick) matter to investigate the state of the tiles, condemn the roof and get it re-laid. Such a drastic result could only have been achieved by first obtaining a detailed report on the roof slates. The report on the slates that was obtained in this case took three months from commissioning to production. On that basis, if such a report had been commissioned in June/July 2001, it would not have been available until September/October 2001. The report would then have had to have been considered by all parties, including the supplier, before a way forward could be discussed and (hopefully) agreed, and it was not inconceivable that further samples would have needed to be taken, particularly if there was any suggestion of relaying the whole roof. Even then, it is not clear when any replacement slates might have been delivered.
- In other words, even if, contrary to my earlier finding, HTA should have picked up on pyrites staining in the middle of 2001, I find that, on the balance of probabilities, the roof would not have been re-laid by the time Waltham had left site. An alternative case, that HTA should have advised WL to withhold money in respect of the roof during the latter part of 2001, is not pleaded and would in any event be fraught with difficulty. When should the deductions have been made? How much should have been deducted? How was that to be calculated, and how did it relate to the actual number of slates with pyrites staining? What was the effect of the guarantee on the appropriateness of any such deduction?
(g) A Reality Check
- It is perhaps worthwhile pausing at this stage for a reality check in relation to this Item. Some of the slates were from a bad batch or batches: whether they justified the complete replacement of all the slates on the roof is a difficult question on the evidence, but the defects were such that they plainly justified the replacement of some of the slates on some of the slopes. This would have been Waltham's responsibility under the terms of the building contract because the slates were not fit for their purpose. Waltham in turn would have been able to pursue the suppliers of the slates who had, after all, guaranteed those slates in the first place. There would thus have been a clear and simple claim passed down the appropriate contractual chain.
- That this has not happened is because Waltham are in administration and are playing no part in this trial. Thus the Claimant has been forced to look elsewhere for his remedies. The obvious place for a Claimant in the position of Mr McGlinn to look is the architect, given his obligation to carry out periodic inspections. However, there will always be complaints about defective materials, underpinning even potentially large claims like this Item, where it is just not appropriate to try and render the architect liable for something which, on any fair view, was simply not his fault. As noted in Section E3.5 above, an architect's periodic inspections are not intended to (and do not) ensure that the materials supplied by reputable suppliers, and installed by the building contractors, are free from all defects. For all these different reasons, I reject this Item against HTA.
F2.29 Item 4.1.2: Slate Fixing
(a) The Defect
- The alleged defect is the use of small pieces of slate instead of 'slate-and-half'. The allegation is one of negligent inspection.
(b) Inspection
- The experts are agreed that:
"
Use of small slates on the tower mitred hip details were the only items of those alleged which could reasonably be expected to be discovered during normal periodic inspection of the work. It was agreed that wide slates had been used on the tower."
- In cross-examination, Mr Jowett described this item as "minor". When he was pushed on the inspection point he said that he was not saying that HTA should necessarily have picked up the use of the small slates. It seemed to me that that was a fair answer, and demonstrated that this was not an Item which could be legitimately sustained against HTA. In my judgment, this allegation was another example of the Claimant's use of the periodic inspection obligation to claim against HTA every defect in Waltham's work, no matter how small or obscure. I reject this Item against HTA.
(c) Damage
- I note that, even if I had found that this was an item for which HTA were responsible, the experts agreed that the remedy was simply to replace the small slates with slates that were correctly sized. This, of course, would be a relatively minor task in all the circumstances, and not one that had been separately costed.
F2.30 Item 4.1.3: Roof Membrane Beneath Counter Battens
(a) The Defect
- The defect is in relation to the positioning of the sarking membrane. Beneath every roof slope, the membrane has been positioned beneath the counter batten (or turret boarding where applicable) rather than above the counter batten. It is agreed that this has created at least the potential for a water trap.
(b) The Relevant Facts
- According to Mr Thornton, the original design stipulated that the sarking membrane was to go above the counter batten. He said that, at some point before the roof was laid, Waltham proposed putting it beneath the counter batten. He said that HTA agreed to this proposal because it was acceptable to the manufacturer, although there was nothing to indicate that the manufacturer had even been asked about it. It also appears that Mr Thornton considered the possibility that a water trap would thereby be created in this location. As a result, he stipulated that a solid piece of plywood should be used in the installation to ensure that there was no such trap. Mr Jowett agreed that the plywood was a good design solution, but said that the difficulty was that the plywood was simply not installed by Waltham. He also said that this omission would have been "obvious" to HTA.
(c) The Failings on the Part of HTA
- I consider that the allegations at Item 4.1.3 in the Scott Schedule exhibit a number of failings on the part of HTA. First, I consider that Mr Thornton did not fully think through the significance of the plywood piece to prevent the water trap. If he had done so, he would have provided a better and clearer drawing of the plywood than the one provided to Waltham and included in the trial bundles. It was, with respect to Mr Thornton, extremely difficult for Waltham to see where that piece of plywood was supposed to go and what its purpose really was. However, given that this was not an Item where the allegation was of defective design, I make no specific finding in this regard.
- However, the uncertainty as to what was required by way of a design solution emphasised only too plainly Mr Thornton's failure to check carefully on site to make sure that the plywood was installed in accordance with the HTA drawing. After all, this was a change to the original design. It was therefore something to which Mr Thornton should have paid special attention when he was making his periodic inspections, particularly given the significance that the plywood piece would have in order to prevent the water from being trapped. He failed to spot it even though, as Mr Jowett put it, its omission was "obvious". Mr Salisbury did not address this point in his report and I did not discern any real challenge to it during his cross-examination. I therefore find that HTA were in breach of contract because they failed to note that the key ingredient of their design solution had been omitted by Waltham.
(d) Different Locations
- The only real point taken in Mr Salisbury's report was the suggestion that, in some locations, the proportionate remedy would be to lower the facia board by an inch or so to remove the trap, a point with which Mr Jowett expressly disagreed in his own report. Mr Jowett's point was that, because of the inherent trap, the defect could only be corrected by opening up and redetailing the base of the roof and that, given that the roof slating was fixed from the bottom to the top, all the roof slating had to be removed in order to correct the detail.
- When Mr Jowett came to be cross-examined, Mr Bartlett QC put to him the possibility of different remedial solutions for different parts of the roof. Mr Jowett was not persuaded that lesser schemes were viable and said on more than one occasion that he doubted whether the propositions being put to him could be carried out in practice.
- The suggestion that different remedies were available for different parts of the roof reached its apogee in HTA's closing submissions, which identified four different areas affected by this defect and made different submissions in relation to those four areas. I set out my views on those submissions below:
(a) Sloping Valley Gutters
- It is suggested by HTA that no remedy is required in these areas. This was not put to Mr Jowett and was not dealt with in Mr Salisbury's expert's report. I would therefore be reluctant to accede to HTA's submission on that point. Moreover, in view of my other findings in relation to these locations, I think it unlikely that the sloping valley gutters in isolation would comprise a significant aspect of any proposed remedial work.
(b) Horizontal Parapet Gutters
- HTA's suggestion here is that the risk of a trap was remote and that, in consequence, the remedial works are disproportionate. Mr Jowett did not accept that the works were disproportionate and repeatedly made the point that this was an inherent defect of considerable significance, so that evidence of actual water damage was itself irrelevant. It seems to me that Mr Jowett was generally right about that: see paragraphs 517 and 518 below.
(c) Straight Eaves
- Again Mr Jowett disagreed that the risk of a trap was remote and disagreed that the remedial works were disproportionate. Again, I consider that there was nothing in Mr Salisbury's evidence which should lead me to take issue with Mr Jowett's views.
(d) Circular Eaves to Turrets
- This is a slightly different situation because the plywood tilting piece did not apply. Accordingly, the allegation is one of failure to spot the upturn of the membrane during inspection. There was a photograph of this location which demonstrated that the upturn of the membrane at the base of the turrets could have been (and was) seen on that inspection. Accordingly it seems to me that HTA were at fault for failing to spot the point in this location too.
- For these reasons, therefore, I do not consider that HTA's attempt to break this Item down, by reference to four different locations, ultimately makes any difference to my finding that, in respect of Item 4.1.3, they were in breach of their duty to carry out proper periodic inspections.
(e) Water Damage
- I accept HTA's case that there was no evidence of water becoming trapped on or in the membrane in large quantities and thus no evidence of water dripping from this source into the building. However, this does not mean that the importance of this Item can be downplayed, as HTA seek to do. It was extremely important that the roof of Maison d'Or was properly designed and constructed; it always is on any house, let alone this high quality private residence on Jersey. This was an error that could have had potentially important consequences. The water trap meant that there was a clear risk of water ingress through the roof and into the house. In my judgment, in respect of such a vital element of the construction as the roof, there should have been no risk at all. This was an Item which, had they spotted the omission of the plywood, HTA would have been bound to instruct Waltham to rectify the deficiency, no matter what stage the works had reached. In that regard, it can be contrasted with, say, Item 2.2.1, where it was by no means clear that such an instruction would have been given in respect of the particular compound used in the window construction.
- Therefore, as a matter of fact and degree, I consider that the risk of the water trap, existing throughout this large and complex roof, was unacceptable, regardless of the evidence of actual damage or the degree of the risk involved, and that this stemmed from HTA's default.
(f) Appropriate Remedial Scheme
- As noted above, it was Mr Jowett's view that the roof would have to be stripped and the membrane put in the correct position before the roof was relaid. Mr Salisbury's evidence on the same point in his report was limited to the suggestion that, at the turrets the facia board could be lowered, although, as we have seen, HTA expanded this argument in cross-examination. The difficulty with this proposition was that there was no detailed alternative scheme put forward in Mr Salisbury's report, and no alternative costings provided by Mr Linnett, HTA's quantum expert. It was always open to HTA's experts to set out a detailed case to the effect that, even if HTA were liable for this Item, the remedial works should have been carried out to a different (lesser) specification which would have been valued at a lower cost than the one for which the Claimant claimed. In my judgment, HTA have not pleaded or put forward such a coherent alternative case. Moreover, where they have referred to possible alternatives (the lowering of the facia boards, for example) the architectural experts have agreed that this would be very difficult and would involve much more work than might initially be thought.
- In those circumstances, it seems to me that, on the evidence, having found that this Item constituted a breach of contract on the part of HTA, and having concluded that it created a clear and unacceptable risk of water ingress through the roof as a whole, I also find that HTA are liable for the remedial works proposed by the Claimant. I address the relatively modest dispute between the parties as to the quantification of this Item in Section L2.2 below.
F2.31 Item 4.1.4: Ventilation/Membrane
(a) The Defect
- The defects alleged under this Item are in respect of the valley gutters. The first concerns the non-provision of a sheathing membrane beneath the lead sheeting. The second concerns the absence of provision for ventilation beneath the lead sheeting at the valley or parapet gutters.
(b) Sheathing Membrane
- The pleaded allegation against HTA was that their drawings did not indicate any sheathing membrane. However, Mr Jowett accepted that the omission of the membrane was not a breach of duty, and the experts agreed that some of the guidance documents indicated that the lead of the valley gutters should be installed directly on plywood. Thus, this aspect of the pleaded Item was always going to fail, a point belatedly recognised at paragraph 389 of the Claimant's closing submissions.
(c) Ventilation
- This is pleaded as a design, and not an inspection, allegation. However, the position on this aspect of the Item is unsatisfactory. The Claimant's closing submissions say that Mr Thornton accepted that HTA's drawings did not provide for ventilation, and that HTA did not cross-examine Mr Jowett on paragraph 6.3.15 of his report. HTA submit that, on the contrary, Mr Thornton said that ventilation was provided and paragraph 6.3.15 was not concerned with ventilation. I find that:
- Mr Jowett's report makes no mention of ventilation in paragraphs 6.3.15 6.3.16;
- Mr Thornton's witness statement and oral evidence (Day 7/156-157) concentrated on the membrane, rather than the ventilation holes.
- Accordingly, it seems to me that this allegation has not been made out by the Claimant.
F2.32 Item 4.1.5: Defective Installation
- This Item concerns an allegation of inadequate insulation at the overhanging eaves. It is not an Item alleged against HTA.
F2.33 Item 5.1.1: Inadequate Internal Joinery
(a) The Defect
- This Item is concerned with the internal joinery, and includes doors, architraves, skirtings, window boards, panelling, cupboards and fitments. The alleged defects in that joinery are defined in the Scott Schedule as:
"Open mitre joints/badly fitted joints.
Poor colour/grain match.
Surface damage/splits/saws cuts.
Imprecise cut-out for ironmongery.
Poor filled holes/unfilled holes.
Plane marks."
- There is no indication in the Scott Schedule of where these defects are said to have been found. It appears, however, to be the Claimant's case that these defects existed, to some degree at least, in all the internal joinery in almost every room in the house. The remedial work claim for this Lead Item is based on the complete replacement of all the internal joinery.
(b) Evidence
- There was a difficulty with the evidence in respect of this allegation. The photographs of the defective joinery are scattered throughout a series of different files. There was no clear pleading, and no collated photographic evidence, in respect of the relevant locations of these defects, other than those which were the subject of the particular photographs put to the witnesses in cross-examination.
- That said, I acknowledge that detailed cross-examination was directed at both Mr Thornton and Mr Salisbury relating to the photographs of Bedroom 1, the Billiard Room, the Dining Room and Bedroom 3. I also accept Mr Williamson QC's general submissions that:
- It would have been impractical and disproportionate to put yet more photographs to the HTA witnesses;
- The four rooms chosen for this exercise were representative of the joinery generally, although not perhaps the joinery in Bedroom 4 (which had been approved by Mr McGlinn after the late 'benchmarking' exercise).
(c) Specification
- There was no Specification in respect of the quality of joinery. Mr Jowett made plain that, in his view, it was for the architect to identify clearly in the written specification precisely what standard was required. Mr Salisbury did not disagree with that, saying "in the usual course of things, I would look for a far more precise specification than I have read in connection with this job, yes
" Accordingly, it seems to me that, in line with my reasoning set out above, HTA were in breach of contract in failing to provide this specification. They knew that a high standard of joinery was required; they knew or should have known that, as architects, they had to specify that high standard; and they failed to do so. Of course, whether that breach was causative of loss depends on what the overall quality standards of the joinery actually were on site. That in turn brings in the second allegation against HTA, namely their failure to carry out proper periodic inspections in relation to the quality of the joinery.
(d) General Quality
- Mr Thornton was of the view that the general quality of the joinery was high. Mr Salisbury was of the same view. Even in his re-examination, Mr Jowett remarked that the overall quality was of a "reasonably high standard".
- However, what mattered to the Claimant's case was the existence of numerous specific items of unacceptable joinery, scattered throughout the building and, on his case, justifying wholesale replacement. As to the general evidence about that, I note that:
- On 16 January 2002, WW Pro Interiors Ltd produced a report on the state of the joinery at Maison d'Or. This report concluded:
"I can understand the client's dismay at the finishes that have been achieved throughout the house as the quality of the manufactured installation is not up to the standard of 'Good Joinery'.
There have been some fundamental mistakes made in the manufacture process such as the jointing of timbers, the use of veneers in the wrong applications, and the lack of cleaning up when the timber comes off the machine.
"
- The Charter reports from March 2002 onwards featured extensive criticisms of the standard of joinery throughout Maison d'Or. These were, of course, later corroborated by Mr Jowett. Mr Salisbury's inspections of the joinery were less extensive.
- It seems to me that I should draw two conclusions from the general evidence as to the quality of the joinery. The first is that, although the quality was reasonably high, there were numerous examples of defective work and poor finish. Secondly, I conclude that, whilst the neglect of the building after January 2002 may have served to exacerbate some of the deficiencies in the joinery, it was plainly not the real cause of the problem. WW Pro and Charter were finding major deficiencies right at the outset of the period of neglect, in January 2002.
- In the light of the above findings, I conclude that HTA's failure to specify a high standard of joinery was directly linked to the deficiencies in the joinery actually supplied and installed. However the real issue in respect of the joinery was the alleged failure on the part of HTA to carry out proper periodic inspections, with the result that there were numerous specific defects which should have been, but were not, rectified by Waltham long before they left site. It is to that issue that I now turn.
(e) Inspection
- It is the Claimant's case that if Mr Thornton had carried out proper inspections, he would have condemned much of the internal joinery and got it replaced well before Waltham left site. As noted in Section E3.8 above, Mr Thornton disputed this, saying that, since work was ongoing, it would have been quite wrong for him to demand wholesale replacement in respect of work that had not yet been finished.
- I have concluded from the photographic evidence, the comments of witnesses on the standard of internal joinery generally, and by reference to specific examples, that the vast majority of those specific areas of joinery about which complaint is now made were indeed unacceptable, and that Mr Thornton should have instructed Waltham to replace much of it long before they left site in January 2002. For the avoidance of doubt, I have reached this conclusion by reference to the very high (but not perfect) standard which Mr Thornton was obliged to apply, and which he said that he intended to apply. I have not applied the boat standard. Furthermore, I accept Mr Williamson QC's submission that the joinery which is criticised and which can be seen in the photographs failed to meet even an ordinary standard of workmanship. Examples of the joinery which I consider to be of a wholly unacceptable standard, and which have led to these conclusions, are as follows:
Bedroom 1
- Two different types of moulding buffeting up against each other which Mr Thornton described as "not particularly acceptable".
- Mouldings "not properly jointed together" (Mr Thornton, day 7, page 165, line 12).
Billiard Room
- Panels not lining up which, according to Mr Thornton "would not be accepted in that condition".
- Big gaps at top of the panel with filler sprayed all over the woodwork.
- Large knots in the wood which, again according to Mr Thornton, "would not be acceptable".
- Panels not lining up which again Mr Thornton accepted were not acceptable.
- Unfilled nail holes which again Mr Thornton accepted were "not particularly acceptable".
- Inadequate joints to skirting which, again, Mr Thornton agreed was "not acceptable".
- The existence of open "scruffy" joints according to Mr Thornton.
Dining Room
- Large gaps at the joints.
- Gaps between doors and thresholds which Mr Thornton said were "not acceptable".
- A lot of filler in the mitre joint which Mr Thornton said was "not really acceptable".
- Other examples of a liberal spattering of filler all over the wood.
- Unacceptable mitre jointing.
Bedroom 3
- Gaps and poor joints which Mr Salisbury accepted were "not ideal".
- The moulding not sitting square on the skirting board, mitre jointing not acceptable.
- Gaps where the central detail meet the rafter which Mr Salisbury then described as "not ideal".
- The joinery shown in photograph 37 which Mr Salisbury described as "a shocker" and which required the replacement of 2½ feet of cover piece.
- The existence of numerous nail holes, which Mr Salisbury said "I would rather not see".
- The existence of damaged timber which Mr Salisbury described as "bad".
- Poor joints which Mr Salisbury said "I do not like".
- Deficiencies in the skirting board, one of which was described by Mr Salisbury as "horrible". In addition on the same photograph to unfilled nail holes and an uneven cover piece.
- The repeated use of filler which Mr Salisbury described as "not good" principally because it had not been matched in.
- The big gap between the dado and the plaster which Mr Salisbury described as "a serious problem".
- I do consider that a few of the joinery items about which the Claimant now complains were snagging items which Mr Thornton would have required Waltham to rectify before they left site, but which it was unreasonable to expect him to require Waltham to remedy at an earlier stage. Examples of this include the saw cut on the single louvre (paragraph 190 above) and those items which were put to Mr Thornton and Mr Salisbury which they said would be dealt with by rubbing down or other snagging works. However, I have concluded that these were very much in the minority, and I consider that, in the round, I am justified in treating them as 'de minimis'.
- Accordingly, I conclude that HTA are liable for the majority, if not quite all, of the individual matters raised under Item 5.1.1. There is one particular area of joinery where I reject any liability on the part of HTA and, because it makes a difference from a quantum point of view, it needs to be set out here.
- I have concluded that there were no actionable defects in the joinery in the wine cellars which formed a major joinery element of the works. The relevant joinery can be seen in the photographs. There is nothing to indicate any defects in this work, either by reference to the photographs, or the reports, or the oral evidence. In view of that finding, I consider that HTA have no liability in respect of that element of the claim under Item 5.1.1.
(f) Causation
- HTA alleged that they could not be liable for all or part of the cost of the replacement joinery because their failure to point these matters out on inspection did not result in loss. I reject that submission for two reasons. First, it seems to me that, because HTA are liable for the failure to specify the appropriate quality of joinery in the first place, the foreseeable consequence of that default was the carrying out of inadequate work which, when it came to be replaced, could not be completed by the original contractor free of charge. That is, of course, exactly what happened. Secondly, since I have found that HTA should have alerted Waltham to the errors in their joinery work long before Waltham left site, their failure to ensure that these matters were put right meant that they were liable for the costs of remedial work if, as turned out to be the case, Waltham were no longer in a position to carry out the works or pay financial compensation. It seems to me that that finding is entirely in accordance with Sutcliffe, and I do not consider that the absence of an allegation in relation to the interim valuations makes any difference to my conclusion.
F2.34 Item 5.1.2: Threshold
(a) The Defect
- This is a slightly unusual allegation. It concerns the internal ground floor doors in areas where there is a stone or hardwood floor finish. Those doors have a raised threshold, as if to accommodate a carpet finish. It was said by Mr Jowett that this forms a trip hazard, Mr Salisbury accepted that it was 'higher than usual'.
(b) The Relevant Facts
- HTA's suggestion is that TDD produced the threshold design in question and that it was intended to deal with the position where, on one side of the door, there would be carpet, and on the other side there would be stone or wood.
- Neither of these factual scenarios survives analysis. Mr Thornton accepted that there was nothing to show that TDD had produced a drawing of the relevant threshold. Mr Disdale could not recall it, and Mr Thomas was not called. In addition, there was nothing to show that, at any stage in the development of the design, anyone had intended that carpets would be laid in these ground floor areas.
(c) Failure to Co-Ordinate
- The position appears to be, therefore, that the threshold was unnecessary because there was in fact no carpet. That was therefore a design failure on the part of HTA. If, which I do not accept, the threshold had been originally specified by TDD, then HTA, as the architect responsible for co-ordinating TDD's design, should have pointed out that the threshold was unnecessary and potentially unsafe. Further and in any event, Mr Thornton accepted that the safety of the overall design was HTA's responsibility.
- For all these reasons, therefore, it seems to me that this is an Item for which HTA are liable.
F2.35 Item 5.2.1: Kitchen Fitting
(a) The Defect
- The alleged defect concerns the entirety of the kitchen fittings. It is said that the carcasses of the fittings are inadequate to support the granite worktops. Perhaps more importantly, it is said that the use of lacquered MDF fitments was not in accordance with the generally high quality specification expected by Mr McGlinn.
- There was little dispute as to the poor standard of kitchen fittings. Mr Thornton said candidly that "quite frankly
the kitchen was a load of rubbish". There seems to me no doubt at all that the kitchen was not in accordance with the standard for which everybody was striving in the rest of Maison d'Or. The question for me is whose fault that was.
(b) Specification
- It is alleged that HTA failed to provide a specification in respect of the kitchen and that they were in breach of contract for failing so to do. HTA say that they were never required to design the kitchen and that this was a matter for TDD.
- It seems to me that, at the outset, HTA were responsible for designing the kitchen because, until TDD became involved at the end of 1998, HTA were on any view responsible for the entirety of the design. They should have provided a specification of the kitchen by the time that the works went out to tender in October 1998, and could be said to be in default because they did not do so. However, it is unclear whether this default led anywhere, given that Waltham's tender figure for the kitchen was £50,000, which is £10,000 more than the claimed cost of a new kitchen now. In other words, Waltham seemed to appreciate what was required, notwithstanding the lack of a written specification.
(c) Reduction in Scope
- The next complication was that, in accordance with Mr Richards' list of reductions in work scope, the kitchen fittings priced at £50,000 - were omitted in their entirety. Thus, at the end of 1998, it may have been unclear whether HTA had any ongoing liability for the kitchen, because it had ostensibly been omitted. However, this seems to have had no effect on the work that was subsequently carried out: it does not appear that anybody thought for a moment that this house was being designed and constructed without a kitchen. So the omission by WL of the kitchen in late 1998 appears to have made no difference, because Mr McGlinn obviously wanted a kitchen in the property and ended up paying about £30,000 odd for the kitchen that was supplied and installed by Waltham.
(d) Design
- There can be no dispute that, as Mr Thornton said, and the documents made clear, the kitchen which Waltham installed was specified and designed by TDD. That was expressly confirmed by Mr Berryman of TDD. Thus, the use of MDF fitments, which might seem a slightly surprising choice for the house of a multi millionaire, and was the subject of much criticism, was the choice of TDD. Indeed, on the evidence before me, it appears that all the aspects of the kitchen design, about which complaint has since been made, can be traced back to TDD's design/requirements.
- Neither can it be said that these design deficiencies arise in any way out of HTA's obligation to co-ordinate TDD's design with their own. HTA's obligation to co-ordinate in relation to the design of the kitchen was to ensure that, for example, the location of water pipes and the like married up with TDD's design of the kitchen itself. It was no part of HTA's co-ordination obligation to check whether TDD were right and Mr McGlinn really did want painted MDF in his kitchen. Accordingly, I reject the allegation that the defaults in the design of the kitchen were in any way the responsibility of HTA.
(e) Inspection
- The next problem with the kitchen was that the standard of workmanship was unacceptable. The photographs demonstrate that there were all sorts of problems with the internal joinery and worktops, with numerous examples of poor finish, poor jointing and failures to match up adjacent materials. These problems simply served to highlight the slightly curious design/specification required by TDD.
- However, unlike the position in relation to the internal joinery generally (Item 5.1.1) it seems clear that, in relation to the kitchen, HTA (and others) pointed out the deficiencies to Waltham. Indeed, on the evidence, it is apparent that everybody, including Mr McGlinn, was only too aware of the problems with the kitchen. Thus, by way of example:
- Mr Tanner's notes for his visit of 13 July 2001 record a number of deficiencies in the kitchen;
- At a meeting on 19 July 2001, WL and Mr Thornton discussed the outstanding problems in the kitchen;
- On 23 August 2001 Mr Tanner required from Mr Thornton a detailed list outlining all work still to be carried out in the kitchen prior to its re-presentation to Mr McGlinn for his approval;
- Mr Tanner's list of 7/8 November 2001 contained further criticisms of the kitchen;
- Mr Tanner's visit on 23 November 2001 identified various elements of the kitchen which were now considered to be acceptable, and others which still required work.
- Accordingly, there can be no doubt that everybody, including Mr McGlinn and his representative, Mr Tanner, was well aware of the deficiencies in the kitchen and was working on the basis of an agreed plan to get Waltham to complete the works to the highest possible standard. Therefore, it seems to me that there can be no sustainable case against HTA in respect of their alleged failure to carry out proper periodic inspections of the kitchen. They, along with everybody else, were only too aware of the problems, and were endeavouring to get Waltham to rectify them.
- Even if I had concluded that HTA were in breach of their inspection obligations in respect of the kitchen, I would still not have found them liable for this Item. The reason is this. On the evidence of Mr Thornton, by the summer of 2001, Mr McGlinn and/or Mr Tanner had made plain their (entirely reasonable) dissatisfaction with the kitchen. For the reasons which I have previously given, that dissatisfaction was essentially rooted in the design/specification decisions taken by TDD. It appears clear from the documents that Mr McGlinn was seriously considering at that stage stripping out the existing kitchen and replacing it, lock stock and barrel. According to Mr Thornton, having contemplated that possibility, Mr McGlinn then made it plain that, instead, he wanted Waltham to complete the kitchen, when he would then make a decision, based on its completed condition, as to whether he retained it or not. That was something that was discussed at the meeting on 19 July 2001. In the subsequent letter from WL to HTA of 23 July 2001, Mr Richards wrote:
"Kitchen We have decided to complete the kitchen fit out ready for painting. A further inspection will take place and a decision taken at that stage."
- The "decision" that was to be taken once the kitchen had been completed was Mr McGlinn's decision as to whether or not to strip it out and replace it. Accordingly, at the time that Waltham left site, Mr McGlinn had expressly chosen to proceed with the existing kitchen. In those circumstances, it seems to me that, even if HTA had been liable for the inspection allegations, Mr McGlinn could not have claimed against them for the cost of a new kitchen, in circumstances where it was he who decided to proceed with the original kitchen in any event.
(f) Conclusions
- The story in relation to the kitchen is complex, and I am entirely satisfied that I have only heard some of the evidence relating to its unhappy genesis. HTA's default (in failing to produce a specification originally) was not causative of loss. The real problem with the kitchen was its defective design/specification, which I find was entirely the responsibility of TDD. These problems were compounded by Waltham's poor workmanship. However, HTA were not in breach of their inspection obligation in this regard: everyone knew of the deficiencies in the kitchen, and Mr McGlinn took an informed decision to continue with the kitchen to completion. For all these reasons, the claims against HTA under this Item must fail.
F2.36 Item 5.2.2: Installation of Granite Worktops
- This is a specific allegation in respect of the kitchen, concerning the defective installation of the granite worktops and plinths. I have dealt with this as part of my consideration of the allegations under Item 5.2.1 above. No further findings are necessary. This Item fails against HTA.
F2.37 Items 5.3.1, 5.3.2 and S3: Feature Trusses
(a) The Defects
- These allegations concern the feature trusses. In Bedrooms 1, 3 and 4 it is said that there was variable staining to the timber surfaces. In addition, in Bedrooms 1 and 3, by reference to item S3 of the Scott Schedule, it is alleged that there is poor construction, with open joints, of the feature trusses.
(b) Staining (Item 5.3.1)
- The experts are agreed that although there was variable staining, "this was not a defect". I therefore do not need to deal further with this allegation, although I note that the Claimant's closing submissions make no reference to this agreement at all.
(c) Open Joints (Items 5.3.2/S3)
- Mr Salisbury's evidence on this item was clear. He said that the roof trusses were not well secured and that this should have been seen on periodic inspection. In the light of that evidence, I find that HTA are liable for Item 5.3.2/Item S3.
F2.38 Item 5.4.1: Floor Infestation
(a) The Defect
- It is alleged that there was active infestation of wood boring insects in the panel of second-hand timber used in the floor inset to the dining room.
(b) The Relevant Facts
- The floor inset in the dining room was specified as weathered, old timber. Although the timber that was installed had old wormholes, Mr Thornton said that there was no evidence of any current infestation when it was put in. Accordingly, although the suppliers had recommended that "the boards are treated on site if required", it does not appear that any treatment was carried out, because no-one considered that it was required.
- Next, there was a report on the timber flooring produced by WW Pro dated 16 January 2002, to which I have previously referred. The report was rather equivocal on this point: although the author indicates a belief that the oak was actively infested, he goes on to put it no higher than that "if it is to be proved that beetle is indeed active", then there was a risk to the rest of the woodwork. Mr Jowett accepted that, beyond the equivocal words in this report, there was no other evidence of infestation, either at the time that WW Pro produced their report or subsequently.
(c) The Allegations Against HTA
- The allegation against HTA is based on a failure to make adequate inspections. However Mr Jowett agreed as he was bound to do - that HTA should not have required the timber to be rejected simply because it had wormholes: the whole point of the timber was that it was old and weathered, and therefore the existence of wormholes did not mean that the timber was in any way defective. Accordingly the issue was whether the timber was in fact the subject of active infestation in 2000 or in 2001 and, if so, whether this should have been spotted and sorted out by HTA. But as I have said, there was no unequivocal evidence that there was any active infestation during the contract period, or indeed subsequently. Thus, there was nothing to say that HTA should have done anything differently, or that there was anything further that they should have checked. Accordingly, I reject this item against HTA. It seems to me that, on the evidence available, the fact of actual infestation on which it is based cannot be made out.
F2.39 Item 5.4.2: Jointing in Floors
(a) The Defects
- The defects complained of concern the mitre jointing in the hardwood floors. It is said that the mitre joints have opened up in the hardwood flooring perimeter strips in the billiard room, the drawing room and the hall. The allegations against HTA are put in two ways. First it is said in the Scott Schedule (albeit in the Claimant's Response column) that HTA failed to make any allowance for the likely moisture movement of the timber. Secondly, it is said that the opened joints should have been seen and dealt with during HTA's periodic inspections.
(b) The Evidence
- Unfortunately, there was a major dispute about the extent of this problem. HTA's closing submissions made the point (at paragraph 442) that any badly made mitre joints were "few and far between". That appears to be linked to the submission at paragraph 437 that Mr Salisbury was only aware of two examples of open mitre joints in the flooring. I have explained above that Mr Salisbury's visits to the site were considerably less numerous and less extensive than those undertaken by Charter and Mr Jowett. This Item is, perhaps, a good example of the difficulties thereby created. At Appendix QA10 of Mr Jowett's answers to questions of September 2006, 15 different mitre joint/junctions are identified as being defective. They are cross referenced to videos or photographs taken by Charter and Bickerdike Alan & Partners.
- Accordingly, I conclude on the evidence that this problem was much more widespread than suggested by HTA/Mr Salisbury.
(c) The Failure to Accommodate Expansion
- The architectural experts agreed that:
"
expansion of timber boarding load in a panel surrounded by a mitre jointed strip would tend to open up the mitre joints unless some provision was made in the floor to accommodate the moisture expansion."
I consider that, during his cross-examination, Mr Salisbury did make an attempt to resile from this agreement, which I reject. The agreement is clear: provision had to be made to accommodate the moisture expansion.
- I take the view that this provision should have been stipulated by HTA, either in a specification or in a design drawing. At the very least, HTA should have checked with Waltham that sufficient account had been taken of the need to accommodate moisture movement in the timber. Accordingly, the absence of either a specification, or a drawing, or any evidence that this was a point that they took up with Waltham, lead me to conclude that HTA were in breach of contract in relation to this allegation.
(d) Inspection
- Mr Jowett was of the view that HTA ought to have identified the poor formation of joints and done something about it. There was no real answer to that from Mr Salisbury. Certainly, this was not a defect which could be described as being appropriate to be left for the snagging/handover process because, if a corner joint was badly formed, it was agreed that a large amount of flooring would have to be taken up to remedy the problem.
- In addition, it seems to me that this was not something which HTA picked up on inspection because this was not an aspect of the construction about which they appeared to be greatly concerned. The failure to provide the necessary accommodation for movement demonstrated their failure to get to grips with the potential problems at these joints. The absence of a proper inspection is really another aspect of that same failure.
(e) The Effect of Neglect
- Mr Thornton said that a number of these joints were not noticeable whilst Waltham were on site and the suggestion was that the joints had opened up as a result of the neglect of the building after January 2002. I accept the proposition that the problems may have been exacerbated by the period of neglect after January 2002 although, since there was no provision to allow for any moisture movement, it might be said that HTA were responsible for that in any event. More fundamentally still, there was clear evidence that there were problems with the mitre jointing before Waltham left site. Indeed many of the Charter photographs, taken only a few months after Waltham left site, make clear that the gaps visible in those photographs have been in existence for some time.
(f) Summary
- Accordingly, for these various reasons, I conclude that HTA are liable for this Item. They could and should have specified a means whereby there was sufficient allowance for moisture movement at the joint, and they should have raised the open joints expressly with Waltham on their periodic inspections. It may well have been that, had they done so, they would then have realised that expansion of boarding laid in a panel, surrounded by a mitre jointed strip, would tend to open up the mitre joints, unless there was proper provision to accommodate any moisture expansion. A solution could then have been found. Thus, if Mr Thornton had dealt with this Item properly during his inspections, the cause of the problem could have been identified and dealt with.
F2.40 Item 5.4.3: The Floor Screed and the Under Floor Heating
(a) The Defect
- This Item concerns the under floor heating. It is said that the gap between the timber floor boarding and the under floor heating pipes was not in accordance with the manufacturer's requirements. The two rooms identified in the Claimant's Location Schedule as being relevant to this Item are the Billiard Room and the Dining Room.
- It is important to note that this is not a criticism of the screed depth itself: the expert structural engineers have agreed that the screed depth in the Dining Room was 53 mm and in the Billiard Room was 46 mm, and have said that "there is nothing to suggest that the screed depths in these floors are not acceptable". Accordingly, what mattered was where the pipes were within the screed, and, if they were too close to the floor, how that had come about.
(b) Were the Pipes Too Close to the Floor?
- The floors in the Billiard Room and the Dining Room were laid on battens. In the Billiard Room, Mr Jowett said that the pipes "go over the batten, they come up to the top of the batten
": in other words, they were immediately beneath the wooden floor surface. That seems to be the same as the situation in the Dining Room because, at paragraph 6.5.11 of his report, Mr Jowett says that "where pipes pass through the battens, the pipes in fact touch the timber boarding".
- There can be no doubt that this was not the situation envisaged by the manufacturers of the under floor heating system. All of the diagrams and sketches in the bundle show a significant screed cover between the tops of the pipes and the bottom of the flooring itself. I find, therefore, that this was a defect.
(c) How Did the Defect Come About?
- In my judgment, there were two reasons why this defect came about: a failure to appreciate the effect of the battens, and a failure to spot the disparity between the maximum temperature of the heating system and the maximum temperature that the timber floor would withstand.
- As to the battens, DJH had done a drawing (424/913) which showed a screed cover above the pipes of between 35 and 70 mm. HTA had a copy of this drawing. In addition, HTA had a copy of the Rehau catalogue sent to them in June 1999 by DJH, which showed cover of up to 75 mm between the pipe and the floor. In addition, HTA had been asked to confirm on more than one occasion the screed thicknesses required, although there was never at any time a response by HTA to these written requests.
- Accordingly, it seems to me that, on the evidence, HTA were aware that there had to be a screed cover between the top of the pipes and the underside of the timber flooring. However, although they were asked to specify precisely what the depth of that screed cover should be, they failed to do so. There is nothing to suggest that HTA ever gave any consideration to the point that, where the floor was battened, pipes laid over the battens would come to the top of the batten and touch the underside of the floor.
- As to the temperature point, HTA had been sent information which showed that the under floor heating system manufactured by Rehau could operate at temperatures up to 55 oC. HTA were also aware of the technical literature provided by Junckers, the supplier of the timber flooring, which made it plain that the flooring would not withstand temperatures in excess of 27 oC. At no time did HTA ever point out or address this potential discrepancy.
(d) Was There A Failure To Co-Ordinate?
- In relation to both the screed cover point, and the temperature point, there was a clear failure to co-ordinate. Mr Thornton was of the view that this was a matter for DJH, but I reject that contention. DJH were responsible for the design of the under floor heating. But the main problem that existed here was not with the heating itself; it was the absence of a proper gap between the under floor heating and the timber floor, which floor was being designed by HTA. The related problem was that the flooring, specified by HTA, could not accommodate the maximum temperature of the heating system. As the designers of the floor, and as the architects, it was therefore HTA's obligation to ensure that these two elements of the overall design fitted together.
- I take the view that this was a classic example of a failure to co-ordinate. HTA were the only professional being paid to co-ordinate the designs of others. It was therefore for them to co-ordinate the designs to produce a proper gap, and they failed to do so. They are therefore liable for this Item.
(e) Replacement of Floors
- These defects meant that the floor would have been damaged by the heating system, and therefore extensive remedial work was required. I note that Mr Jowett agreed that the defects in the performance of the under floor heating itself, which are Items 26.5-26.23 in the Scott Schedule (and not alleged against HTA) meant that the floor would have had to have come up in any event. That, however, does not seem to me to make any difference to the liability of HTA for this Item. HTA were in breach of contract and their breach of contract meant that the hardwood floor would have had to have been replaced, and other work done to the location of the pipes, even if the system worked perfectly. If DJH were liable for the failures in the performance of the under floor heating, then it may mean that DJH would be liable for some of the same items of cost to Mr McGlinn. But, always provided that Mr McGlinn does not obtain double recovery as between the two Defendants, both Defendants are liable (for different reasons) for the cost of the same (or some of the same) elements of remedial work.
F2.41 Item 5.4.4: Cupping
(a) The Defect
- The alleged defect concerns the cupping of the timber floor boards in the Dining Room, Living Room and Billiard Room. There appeared to be no dispute that the cupping was present, at least in the Dining Room. HTA's case appeared to be that this was due to events, such as leakage and neglect, that occurred after Waltham left site.
(b) When Was Cupping Apparent?
- Mr Thornton agreed that he had seen cupping prior to the departure of Waltham. Although he said he had given instructions to Waltham to deal with the problem by sanding, there was no other evidence of this, and certainly no written notification. Cupping is also expressly referred to in the WW Pro Report of January 2002, which talks of "boards curling up under the skirting board" and "movement due to excess moisture". Furthermore, Mr Salisbury, having considered all the photographs, offered the view, without even being asked, that the cupping was "quite clearly visible in the video that Mr Prinn made on 24 January 2002
cupping was present".
(c) Inspection
- It seems to me, therefore, that there is overwhelming evidence that the cupping was present prior to Waltham's departure from site. There was nothing in writing to indicate that Mr Thornton drew this defect to the attention of Waltham. It seems to me that he should have done; there was certainly no reason to wait for the snagging/handover process before this item was dealt with. In addition, it is clear from Mr Salisbury's evidence that sanding (which Mr Thornton said was the work he asked Waltham to do) was not the best solution; Mr Salisbury said "the better option is to deal with the cause of the cupping, if that is a problem, first, and that would probably mean taking up the floor boards, in which case you might as well replace them."
- In the light of that answer, even if I had found that Mr Thornton had pointed out the cupping to Waltham, I would have found that the work he instructed in consequence was superficial, and not in accordance with the recommendation of HTA's own expert. Accordingly, for all these reasons, I conclude that HTA are liable for this Item.
(d) Which Rooms?
- Finally in relation to this Item, I should identify and resolve an unfortunate dispute concerning the rooms in which the cupping was apparent. I made the point during the trial that, although the Claimant's Scott Schedule had a column entitled 'Defect and Location' it was rare that any actual location was identified in the Schedule. In respect of this Item, the column appeared to identify the cupping as having occurred in the Dining Room only. That is now a point taken by HTA, despite the existence of the Defects Location Schedule, produced by the Claimant late in the trial, which suggested that the cupping also existed in the Living Room and the Billiard Room. No cross-references to other evidence to support this suggestion were identified in the Defects Location Schedule.
- I have concluded that there was no pleading and no evidence concerning cupping in any locations other than the Dining Room floor. I therefore consider that the references in the Defects Location Schedule to the Living Room and the Billiard Room were not in accordance with the Claimant's pleaded case and unsupported by evidence. That may well explain why there are no cross-references in the Defects Location Schedule to any photographs or other material relating to these other locations. I therefore find that HTA are liable only for the cupping in the Dining Room floor.
F2.42 Items 5.5.1 5.5.5: Staircases and Balustrades
(a) The Defects
- The defects complained of concern the main stairs (Items 5.5.1, 5.5.2, 5.5.4 and 5.5.5) and one defect in the stair to the attic (Item 5.5.3). In the main stairs, the defects are said to be:
a) Loose treads and creaking in the treads and risers;
b) A poor colour match in the handrail;
c) An unsafe design of the handrail because it was discontinuous; and
d) The use of MDF strings.
The allegation in respect of the attic stair was that there was a trip hazard at the top tread.
(b) Main Stair Allegations
- I consider that the existence of loose treads/creaking was plainly a matter that would have been dealt with at the snagging/handover stage. It was a classic snagging item, as Mr Salisbury explained. It is not therefore a breach of contract on the part of Waltham and it was not something for which HTA can now be blamed. Item 5.5.1 therefore fails.
- As to the allegation of a poor colour match, Mr Jowett properly conceded that this was unfinished work: the staining had yet to be completed. It is not open to the Claimant to seek to blame HTA for ongoing work (see Section E3.8 above). I therefore reject Item 5.5.2.
- As to the handrail being discontinuous and thus a breach of contract (Item 5.5.4), it seems to me that this is an unsustainable allegation. There was no question of any breach of the relevant Bye-Laws or British Standards. In addition, although the allegation was that the handrail was unsafe, there was nothing to suggest that it was: indeed, since it did not contravene any Bye-Laws, the inference must be that it was safe. In any event, this was an aesthetic choice which would have been plain and obvious to Mr McGlinn long before Waltham left site, and with which he never took issue. It was not a breach of contract on the part of HTA.
- As to the point about the MDF strings (Item 5.5.5). I do not accept that the mere fact that MDF was used for the strings must somehow mean that the joinery was defective or inferior. Although it is said that the use of MDF here was contrary to good practice, no British Standard or other technical literature was relied on to support this allegation. Both Mr Thornton and Mr Salisbury explained how and why MDF was appropriate for this element of the work, and I accept their explanations. I therefore reject this Item. It therefore follows that I reject all of the allegations in relation to the main staircase.
(c) Attic Stair
- The allegation of the trip hazard at the top tread (Item 5.5.3) centred on the use of nosing for carpeting. In their pleaded response, HTA said that the nosing had been provided on the assumption that there would have been carpet in this location and, once Mr McGlinn had changed his mind, and switched from carpet to hardwood, this would have been dealt with by the installation of a hardwood nosing before practical completion. Mr Thornton's evidence supported this explanation and he was not cross-examined on it.
- It seems to me that this is an example (one of only a few) where the alleged defect arose because of a change to the works. Furthermore, on the evidence before me, there is no reason to believe that this minor Item would not have been dealt with as part of a final snagging/handover exercise. I therefore reject the allegation at Item 5.5.3 against HTA.
F2.43 Item 6.1.1: Gaps Between Stone Panels
(a) The Defect
- The alleged defect is the existence of large gaps at the junctions between the stone panels to the side of the stairs and the timber staircase itself. It is also said that there is edge damage to these stone panels. The architectural experts agreed that, where the gap was greater than 10 mm, the stone panel should be replaced. They also agreed that "at some stage prior to completion, the architect should have instructed that the defective stonework be replaced".
(b) Analysis
- In the light of the experts' agreement, I consider that this is an Item for which HTA are liable, on the basis that there is no evidence that they instructed Waltham to replace the defective stonework. Unlike the previous Item, this was plainly not a matter that should have been (or needed to be) left to the snagging/handover process. Although Mr Thornton said that this matter was in hand, HTA's complete failure to record this in writing meant that his assertion was not supported by any other evidence. I therefore consider that HTA are liable for this Item.
F2.44 Item 6.1.2: Stone Floor in Hall
(a) The Defect
- The Item concerns the stone floor to the hall. It was said that the design of the stone and bedding thickness was not co-ordinated with the design and/or installation of the under floor heating system. It was said that, as a result, there was a possible risk of cracking. The experts agreed that "no damage to the stone had been seen". They did not agree on the likelihood of future cracking. Probably as a result of this, the Item was abandoned at the outset of the trial.
F2.45 Items 6.2.1 (En Suite 3 access panel) and 6.2.2 (MDF support for stone panelling)
(a) The Defects
- Item 6.2.1 is a complaint concerning the stone access panel to the plumbing in the en-suite to Bedroom 3. The particular allegation is that the removable panel shelf for the concealed surfaces was obstructed by the door architrave.
- Item 6.2.2 is a complaint about allegedly defective support to the stone panelling in the same location and the inadequate/incomplete finish to that panelling.
(b) The Clash (Item 6.2.1)
- The problem in the en-suite was a clash between the panel and the door architrave. Mr Thornton's evidence made clear that the panel was designed by TDD. However, the TDD drawing that showed this design could not be described as detailed. Although I accept Mr Thornton's evidence that, in each instance, he formed a judgment as to whether he would redraw the TDD information, or just pass it on to Waltham as it was and deal with any subsequent queries they may have, it seems to me that, on each occasion when he adopted the latter course, Mr Thornton had to be particularly careful to ensure that the undimensioned TDD drawings did not clash with other aspects of the design.
- It was always for HTA to ensure that the TDD design was co-ordinated with the overall design, so that these clashes did not arise. Mr Salisbury said that "the width of the architrave had been overlooked". In my judgment, that was a fault on the part of HTA, and a predictable result of passing on undimensioned drawings to Waltham without properly considering the consequences. For the avoidance of doubt, I reject the suggestion that this was a small error that did not indicate negligence; it was, in my view, an error which arose from a failure to have in place a proper co-ordination system in respect of the use of TDD's undimensioned drawings. Accordingly the "conflict", as Mr Salisbury described it, was the responsibility of HTA.
(c) MDF Support (Item 6.2.2)
- There was little evidence in relation to these matters. To the extent that they are said to be matters of design they seem to come from TDD and, since they do not apparently involve any failure of co-ordination, I consider that HTA were entitled to rely on these aspects of TDD's design. There was no duty on HTA to warn of errors in TDD's design. In any event, the Claimant did not demonstrate that the MDF had been incorrectly specified; whilst Mr Jowett was generally against the use of MDF in a wet environment, the evidence was that some types of MDF were suitable, and it was not known what type was used here.
(d) Summary
- Accordingly, I am of the view that HTA are liable in respect of Item 6.2.1 due to a failure to co-ordinate different aspects of the design, but not liable in respect of Item 6.2.2, where there was no co-ordination failure.
F2.46 Items 7.1.1 and 7.2: Plaster and Paint
(a) The Defects
- The allegation at Item 7.1.1 has never been pursued against HTA. The allegation at Item 7.2 concerned what were pleaded as "various minor instances of damaged or defective plaster work and paint wall finishes". It was properly abandoned at paragraph 539 of the Claimant's closing submissions.
F2.47 Item 8.1: Bronze Doors
(a) The Defects
- This allegation concerned the design of the bronze doors into the sitting room. It is said that the doors distorted because the bronze section used (ie, the thickness of the metal) was inadequate, preventing them from opening and closing freely. The evidence suggested that the particular problem was that these heavy doors have caught on the wooden floor. This was an allegation of defects in HTA's design.
(b) The Design
- I am not persuaded that HTA's design was deficient. When Mr Bartlett QC came to cross-examine Mr Jowett on this point, Mr Jowett was unable to do anything other than repeat the general criticism in the Schedule, and to say that the detail of the allegation was really for a specialist bronze fabricator. The furthest Mr Salisbury would go was to say that it was "debatable" whether there was a fault. Moreover, he said that he swung on the doors "like a monkey" without producing any drop in the doors, and explained his reasons for concluding that the doors were strong in the vertical plane. I accept that evidence.
- In any event, I find myself in agreement with HTA's case that, even if there was a defect, all that was necessary was a minor adjustment to the height of the doors or the sanding of the floor, so that the doors could pass easily over the floor. The evidence was that one door leaf caught on the floor in one, relatively small area.
- For all these reasons, therefore, I reject this Item against HTA.
F2.48 Item 8.2: Plant Room Ladder
(a) The Defect
- This Item concerns the allegedly unsafe nature of the plant room ladder. When Waltham left site, access to the basement area was via a vertical cat ladder without proper safety hoops. However, as set out below, the background to the point was rather more complicated than that, and formed part of HTA's defence to this Item.
(b) The Relevant Facts
- The original design showed a vertical cat ladder. Mr McGlinn was not happy with it. As a result HTA prepared a new design for a set of steel stairs. The difficulty with this modified design was that it meant moving the hydraulic pipe to the lift and Waltham were unwilling to move the pipe because of the risk that it would jeopardise the guarantee from Otis Lifts. Accordingly, Mr Thornton said that Mr McGlinn agreed that the cat ladder would remain as it was, and that he would carry out further work in this area after Waltham had left site.
(c) Design
- Notwithstanding this history, it seems clear that the ladder was not in a safe condition as it was: indeed, Mr Salisbury expressly admitted that. Therefore, it seems to me that, whatever arrangements might have been made in the future, HTA had a duty to specify/design a safe ladder to Mr McGlinn. They failed to do so. Accordingly I consider that they are liable for Item 8.2. Again, the fact that there was or might have been a change to HTA's original design is irrelevant to their liability for this Item.
F2.49 Items 9.1 9.3: Sanitary Fittings
(a) The Defects
- These three items are concerned with the sanitary fittings and can be taken together. The first (Item 9.1) is in respect of the shower screen in bedroom 3. It is said that the screen was not co-ordinated with the stone panel sizing and that the stone panels had been notched to allow the door to fit, resulting in an unsightly appearance. Item 9.2 is concerned with the defective construction of the baths, which are said to have been fixed too low in relation to the stone panel surround, leaving a large gap. It is also said there are inadequate timber supports to the baths. Item 9.3 is concerned with the shower tray in the master bedroom en-suite and the allegation that there is no tanking provision beneath the shower tray. I deal in turn with each of those allegations below.
(b) Item 9.1
- Mr Salisbury described the notching as "a shocker", which is probably enough on its own to render HTA liable for this Item. In addition I have seen nothing to support HTA's case that this poor element of design was the responsibility of TDD (indeed, Mr Berryman denied that and was not cross-examined to the contrary) nor that it was approved by Mr McGlinn (who said that "it was a bad finish"). In all those circumstances, I find that HTA should not have accepted this obviously inadequate remedial solution and should have required Waltham to re-do this element of the work. HTA are therefore liable for this Item.
(c) Item 9.2
- There is a substantial gap above the baths. Mr Salisbury said in cross-examination: "I do not like the gap at all". Both Mr Salisbury and Mr Jowett agreed that the gap would require substantial work to put right.
- Furthermore, although at one point Mr Jowett seemed to accept that this was a snagging item, Mr Salisbury took a different view and said (with some force) that this was not an Item that could or should have been left until snagging. In the light of that evidence, it seems to me plain that I cannot find that this was an Item that HTA were entitled to wait for Waltham to put right at the end of their time on site. On Mr Salisbury's evidence, they are therefore liable in respect of Item 9.2
- There was again a suggestion that Mr McGlinn accepted the mastic solution to this gap. I reject that for two reasons. First, Mr McGlinn said that he did not accept the gap as it was. Second, he was not told that a silicon joint an inch thick would not last all that long, even though that was Mr Salisbury's clear view. Accordingly, I do not consider that this point provides HTA with any sort of defence to this Item.
(d) Item 9.3
- This is an odd allegation. It is not said that a waterproof membrane was definitely omitted; the evidence was that, although it was not shown on the drawings, it had been proposed by Waltham. Ultimately it was not clear whether or not a membrane was put in. Mr Salisbury thought that a membrane had been used but that in any event no membrane was necessary. Mr Thornton also said it was unnecessary. Mr Jowett considered that a membrane was required and that HTA were in default for failing to specify such a membrane.
- I have concluded that HTA should not be held liable for Item 9.3. Even assuming that there was no membrane, there was no British Standard or other technical recommendation to say that such a membrane was required, particularly given the large size of the shower. In those circumstances, I reject Item 9.3.
F2.50 Item 10.1.1: Swimming Pool Cover
(a) The Defect
- These are two criticisms concerning the swimming pool cover. The first is that the cover panels were impractical because they were too heavy to be removed and stored safely. The second is that the storage slot in which the panels were stored was dangerous when the panels were taken out and placed across the pool.
(b) The Relevant Facts
- This is one of the Items in the Scott Schedule where an appreciation of the relevant facts is vital to an understanding of the allegation being made. Mr McGlinn originally wanted a retractable pool cover. The slot by the side of the pool was designed and built to house that standard cover. Subsequently, Mr McGlinn changed his mind and, possibly mindful of the fact that the swimming pool took up the bulk of the garden area which the house overlooked, he decided that he wanted a cover which could be walked upon. HTA did their best to meet this changed requirement and went to pool cover specialists, Dripool. Dripool came up with the design of the panels with the astro turf finish. The Dripool fax of 26 May 2000 said:
"I can now come up with a description/spec for the much discussed removable floor. As you may remember the initial choice of composite beams failed because the manufacturers were not confident on the loadings."
There is then a description of the joists, cross beams and panel characteristics, before the fax goes on:
"The Aluminium beams will weight approx 24 kg and the Hexagrip panels weigh 25 kg thus enabling two men to easily handle the components. I anticipate two men could assemble the floor in half a day, without straining themselves, if sufficiently motivated!
The Floor when assembled will be capable of taking light pedestrian traffic ie 0.25 km/m but it would not be suitable for using as a dance floor, or anything of an energetic nature!"
- Mr McGlinn was asked in detail about the relevant sequence of events. He said he believed that, by the time he first broached the idea of having a cover that could be walked on, the pool had already been built with a ledge for the retractable cover and the slot for the cover to retract into. He accepted that, thereafter, 'a bespoke design was carried out for a walk-on cover that would fit on the pool and go into the slot'. He said that Mr Thornton made him aware of the Dripool fax referred to above and that, on the basis of the information in the fax, he approved going ahead with the cover. He agreed that he told Mr Thornton that his staff could deal with removing the cover in the spring and putting it back in the autumn. He also accepted that, much later, prompted by his daughter's desire to have parties on the pool cover, he looked into the possibility of having the cover strengthened even further. However by November 2001, it appeared clear that he had decided not to pursue that point any further. All of these admissions by Mr McGlinn were reflected in the evidence of Mr Thornton.
(c) The Slot
- I reject the criticism of the slot. The slot was designed and built for the electronic cover. It made perfect sense, once Mr McGlinn had changed his mind as to the sort of pool cover that he required, to use the existing slot for the storage of the panels. Indeed, Mr McGlinn made clear that that was precisely what he expected HTA to do. I consider it misconceived for Mr McGlinn now to criticise HTA because they utilised the slot (which had been designed for a different sort of cover) to house the larger panels stipulated by Dripool.
- In a telling passage of cross-examination, Mr Bartlett QC asked Mr Jowett what else he would have done in respect of the existing slot once Mr McGlinn changed his mind. Mr Jowett's answers demonstrated that, if there was a concern with the slot, there was a very simple solution: screw the lid down and store the panels in the garage. Beyond that, he was very vague:
"Q: If someone really thought the storage slot was dangerous, the lids could be screwed down at the cost of perhaps £10, and the panels stored in the garage instead, could they not?
A: It could have been a different design, yes.
Q: What exactly would you have done if you had been in Huw Thomas' shoes; so the pool had been built with the ledge for the retractable cover and the slot for it to roll back into, and Mr McGlinn had then come to you as the project architect and said 'I do not want the retractable cover now, I want a cover that I can walk on instead'?
A: I think you would have to look at the options for designing a retractable cover, and there would probably be a number of them, from having a sort of James Bond-style installation that slid back electronically or whatever. There would be a range of options and you would have to consider what they were, what they cost.
Q: You have not suggested any option in your report that would have been better than what Huw Thomas did, have you?
A: No.
Q: There was no complaint about this feature from the building inspector, was there?
A: I have not seen one."
- In all those circumstances, I have concluded that HTA's design cannot be criticised. As Mr Salisbury said, it fitted the (changed) brief and was acceptable to the client. And as Mr Jowett accepted, if it was felt that the slot was somehow dangerous, the panels could always have been stored in the garage and the slot simply blocked off.
(d) The Panels
- The other allegation was that the panels were too heavy to be practically moved. It is therefore said that HTA's changed design, which incorporated these panels, was defective.
- I reject that allegation too. First, the new panels were expressly recommended by Dripool because they could meet Mr McGlinn's new requirement that the cover could be walked on. Inevitably, to achieve this, the panels were gong to be heavy. HTA simply followed Dripool's recommendation. That was a reasonable thing for HTA to do and they cannot be criticised for doing it. Furthermore, I am not at all persuaded that Dripool's recommendation was wrong.
- Further and in any event, the weight and size of the panels were both made clear in the Dripool fax and expressly discussed with Mr McGlinn by Mr Thornton. He expressly approved panels of the size identified by Dripool, and explained that his staff would move them when required. It is simply not open to Mr McGlinn now to criticise the arrangements which he himself formulated and agreed in conjunction with Mr Thornton. Again the absence of some better or more obvious solution propounded by Mr Jowett (see paragraph 628 above) was very striking.
(e) Summary
- For all these reasons, I reject the claim under Item 10.1.1 against HTA.
F2.51 Item 10.2: Garden Gate
(a) The Defect
- This concerns the garden gate. The allegation is that the design was defective or unsafe because the step onto the road beneath the gate is approximately 500 mm high.
(b) The Design
- It is HTA's case that this was not a defect but an attempt at providing the most effective solution to a late request for an access/loading bay. The effect of the evidence of Mr Thornton and Mr Salisbury was that HTA did their best in the circumstances but, given that the gate was never intended to be used on a regular basis as a means of access to the property, and in view of the contours and space limitations of the site, there was no other sensible solution.
- There was a debate about whether the Building Regulations or the Bye-Laws applied. Mr Jowett said that there should have been two steps instead of one and that, given that the gate was a means of access, it was covered by the Bye-Laws. Mr Salisbury said that the Bye-Laws were irrelevant because it was a loading bay, not a gate.
- I have concluded that, although it may have been better for there to have been two steps, not one, this was not a breach of contract on the part of HTA. It was a choice they made in answer to a late request; if (which I do not find) it was an error, it was not negligent in all the circumstances.
F2.52 Items 10.3.1 and 10.3.2: Balustrade
(a) The Defects
- This concerns the defects in the stone balustrades on the terraces. Item 10.3.1 simply repeats the point at Items 1.2.1 and Items 1.2.2 from the Scott Schedule and I have already rejected the criticism concerning the use of Haddonstone at Maison d'Or. Item 10.3.2 is a different kind of complaint. It is said that the gaps in the reconstituted stone balustrades would permit passage of a sphere of greater diameter than 100 mm and that this was therefore in contravention of the Building Bye-Laws (Jersey).
(b) The Relevant Facts
- Mr Thornton said that the large gaps were as a result of Mr McGlinn's express instructions. He said that Mr McGlinn told him to provide this particular design and that, when warned that it was potentially dangerous for children, Mr McGlinn made it quite clear that children would not be visiting the property and that therefore this was not a concern. Accordingly, Mr Thornton said that Mr McGlinn was given precisely what he wanted and he cannot now complain about it.
(c) The Design
- I originally considered that it was a little harsh to criticise HTA for providing something which Mr McGlinn had expressly insisted upon. However, on further consideration, it did seem to me there was some force in Mr Jowett's point that HTA should have been tougher with Mr McGlinn because they knew that the design that he required was dangerous, and there was nothing to indicate that they told him so. That view was then confirmed by the evidence of Mr Salisbury in cross-examination, who said of the gaps: "I do not like that". Then, in answer to the point that the design was satisfactory because Mr McGlinn had instructed that no children would ever visit the property, Mr Salisbury was scathing:
"The house is going to be sold. Who follows? It is a non-argument."
- Given that Mr Salisbury rejected HTA's defence in such robust language, I find HTA liable in respect of this Item in the Scott Schedule. I am confirmed in that conclusion by the fact that HTA remained aware of the problems created by these gaps and, at one point, arranged for Waltham to glue Perspex sheeting across them, which was plainly a hopelessly inadequate solution to the problem.
F2.53 Item 10.3.3: Handrail
(a) The Defect
- This item concerns the external stairs. There is no handrail and it is said that that conflicts with the Building Bye-Laws (Jersey).
(b) The Relevant Facts
- Again it was HTA's case that the handrail was not put in because Mr McGlinn did not want it, a proposition which Mr McGlinn accepted. There was also some debate as to whether or not the Bye-Laws applied. However, I consider that this debate was somewhat academic, given that Mr Salisbury dealt graphically with the underlying allegation. He said that without the handrail, "the stair would have been very dangerous". Unprompted, he went on:
"Straight flight, straight down, and if you start at the top, you would roll all the way down to the bottom. It is not a staircase to attempt in the dark, and certainly not a staircase to attempt in anything other than complete sobriety. So yes, a handrail would have been a great improvement on no handrail."
- Accordingly, I reach the same conclusion as in respect of Item 10.3.2 above. There was no evidence that the grave danger posed by the absence of a handrail, as graphically illustrated by Mr Salisbury, was ever communicated to Mr McGlinn. Furthermore, in view of Mr Salisbury's views as to the danger posed by the absence of a handrail, it seems to me that HTA should not have left the steps in that dangerous condition.
- Accordingly, again principally on the basis of Mr Salisbury's evidence, I find HTA liable for this item.
F2.54 Item 10.3.4: Balustrade, Railings, etc.
(a) The Defects
- The defects concern two separate elements of the work. First, there is the stone balustrade between the family room and the pool terrace. It is said that that balustrade was too low by reference to the Jersey Bye-Laws. The second element concerns the railings to the pool terrace. There are two defects. One concerns the height of the railings, and is a re-run of Item 1.3.3 above. The other is an allegation of defective railing fixings.
(b) The Balustrade
- The balustrade was 770 mm high. If the Jersey Bye-Laws applied, the balustrade should have been 1100 mm high.
- I reject HTA's case that the Jersey Bye-Laws do not apply because the terrace was not a floor, balcony or roof. I consider that that is much too restricted a view of the Bye-Laws. The terrace was effectively a very large balcony, looking out over a lower area. Since it would plainly have been dangerous if there had been no balustrade at all I consider that the Bye-Laws applied. Even if the Bye-Laws did not strictly apply, it seems to me that some form of balustrade was plainly necessary and, unless there was a good reason to depart from the 1100 mm figure in the Bye-Laws, the balustrade should have been at least that high.
- HTA contend that there was a good reason for the balustrade to be lower, namely Mr McGlinn's instructions that the balustrade should have been lower because he wanted to have a good view of the sea. Mr McGlinn accepted that those were his instructions. However, there are two difficulties with this aspect of HTA's defence. First, there is nothing to suggest that HTA made plain to Mr McGlinn that the balustrade at just 770 mm high was unsafe/dangerous. Secondly, I accept Mr Jowett's evidence that there were ways in which the view could have been maintained as well as a safe height for the balustrading.
- In the round, therefore, I consider that the admitted non-compliance of the balustrade with the Jersey Bye-Laws constituted a breach of contract on the part of HTA. They are therefore liable for this aspect of Item 10.3.4.
(c) Railings
- Criticism of the railing height was entirely different. First, for the reasons which I have given under Item 1.3.3 above, I consider that the plinth on which the railings were mounted should be taken into account in considering the height of the barrier overall. If the plinth was to be taken into account, the railing height was in excess of that stipulated by the Bye-Laws. Furthermore, even if the plinth should be disregarded, the railing height without the plinth was only just below that stipulated by the Bye-Laws. The evidence was that it was only about 18 mm too short. In those circumstances, I do not accept that this element of the design comprised a breach of contract on the part of HTA in any event.
- In his report at paragraphs 6.6.16 6.6.18, Mr Jowett appeared to suggest that there was a problem with the metal railing posts. However, the criticism was made by reference to an assessment apparently carried out by Mr Ross Gower which was not enclosed with the report and which was not the subject of Mr Ross Gower's own separate report. It was not a matter that Mr Salisbury dealt with and not a matter that was the subject of any cross-examination. In all those circumstances, I decline to find that there was any deficiency in the fixing of the metal railing posts.
(d) Summary
- Accordingly, in respect of Item 10.3.4, I conclude that HTA are liable in relation to the balustrade, but not liable in respect of the railings.
F.55 Item 10.4: External Stairs
(a) The Defect
- This concerns the external stairs. They were constructed with each riser set behind the tread, rather than on top of the tread, causing a water path at the back of each tread staining the wall side of the staircase. There are a number of photographs of this defective construction and the ugly and intense staining that has been caused thereby.
(b) Inspection
- There is no dispute that this staircase was improperly constructed by Waltham because they put the treads and risers the wrong way round. I do not believe that this was something that HTA needed to design out for Walthams; it was a relatively straightforward and standard bit of construction. However, it seems clear beyond doubt that the defective construction was apparent, or should have been apparent, to Mr Thornton on his periodic inspections. It appears that he completely missed it. There can be no question that this could or should have been left until snagging/handover. I therefore find HTA liable for failing to identify this obvious defect on their periodic inspections.
F2.56 Item 11.1: Fire Escape Window
(a) The Defect
- The allegation is that there is inadequate provision for means of escape from the apartment. The allegation is a failure of design: a failure to provide escape windows.
(b) The Facts
- There seems to be no doubt that HTA's original design should have (and failed) to provide for an escape. However, HTA realised their error and instructed Waltham accordingly. One of the windows was in the course of being widened to provide a means of escape when Waltham left site.
(c) Analysis
- In those circumstances, it seems to me that it would be wrong to find that HTA were in breach of contract. Whatever the position in respect of the original design, it is plain that they were in the course of modifying the design so as to provide the necessary means of escape when Waltham left site. It is not right to say, as the Claimant's closing submissions do, that this was "too little, too late". The whole point of an architect's duty to review his design and make periodic inspections is to ensure that any earlier slips are corrected. This was a slip which was being corrected, and would have been but for Mr McGlinn's decision not to allow Waltham back on site. I therefore reject this Item against HTA.
F2.57 Item 11.2: Inadequate Fire Stopping
(a) The Defect
- The criticism is of inadequate fire separation between the lift shaft and the garage. There appears to be no doubt that the fire stopping was inadequate.
(b) The Experts' Agreement
- The experts agreed that "any breaches in fire stopping should have been identified in normal periodic inspection of the work and instructions issued for rectification at some stage prior to completion". It appears that HTA's only defence to this item was the suggestion (with no supporting evidence) that this was work that was ongoing at the time that Waltham left site.
- I do not accept that submission. It seems clear to me that the experts have agreed that this was work which should have been corrected earlier and that there was no need to wait for the snagging/handover process. In accordance with my analysis at Section E3.8 above, I therefore conclude that this was an Item which HTA should have picked up on periodic inspection considerably before Waltham left site and they should have given the appropriate instruction to Waltham to complete the work. There is no evidence of any such instruction. I therefore find HTA liable in respect of this item.
F2.58 Items 27.2, 27.11, 27.14, 27.16, 29.4 and 35.1: M&E Items
(a) The Defects
- Item 27.2 concerns a criticism of access to the family room fan coil unit, the criticism being that the FCU is difficult to access due to casings. The criticism is made against HTA as a failure to co-ordinate. Although I can see that the positioning of the equipment is not ideal, I do not consider that there is sufficient evidence for me to find that the location constituted negligent design. Moreover, I do not consider that this is a co-ordination point: the problem arose out of the M&E design for which HTA were not responsible. I therefore reject this Item against HTA.
- Items 27.11 and 27.14 fall into the same category as Item 27.2 although, in this case, my findings are confirmed by the fact that DJH have admitted responsibility for these claims. I therefore reject these Items against HTA.
- Items 27.16 and 29.4 are also concerned with access to fan coil units or extract fans. Again I consider that these are not co-ordination defects but defects in the original M&E design and again I am confirmed in that view by the fact that they are accepted by DJH. I therefore reject these Items as against HTA.
- Item 35.1 is concerned with the gas pipe work in the garage ceiling void. The garage ceiling void was not vented and the M&E experts have agreed that this was an error in design. Again I note that it is an error which is now accepted by DJH. On the balance of the evidence, I again consider that this was a defect in DJH's original design, and was not a matter of co-ordination for HTA. I therefore reject this claim against HTA.
F2.59 Item S1.1: Drainage
(a) The Defect
- The allegation is that the lowest manholes fill with water thereby preventing access for maintenance. The allegation against HTA is that they should have required a report from DJH on the test performance of the drainage system.
(b) The Relevant Facts
- It appears that the lowest manhole was modified so as to allow it to take the rainwater run-off from the garage. This modification was made by DJH, and Waltham should have constructed the manhole in accordance with the design that DJH had modified. I deal with the principal drainage allegation, made against DJH alone, at Section H2.1 below.
(c) The Case Against HTA
- The allegation here is that HTA should have required a report from DJH on the performance of the drainage system. It is said that this was necessary in order for HTA to fulfil their co-ordination role.
- I have no hesitation in rejecting this allegation. As I have already indicated, HTA had an important co-ordination role and, in respect of certain items noted above, they failed to fulfil it. However, it is nonsense to suggest that, without more, HTA had to require DJH to produce a report in respect of the drainage. Why should they have done so? What triggered such a requirement? There is no evidence that there was anything that should have alerted HTA to a problem with the drainage system or would have indicated to them that a report was required. Indeed, it might be thought that, since DJH were responsible for the design of the drainage, it would be for them to point out any problem or potential problem to HTA, not the other way round. In any event, as Mr Thornton explained, drainage would be tested shortly before practical completion, as part of the commissioning process. That stage, of course, was never reached.
- An obligation to co-ordinate the specialist design of others does not mean that the co-ordinator automatically becomes responsible for any potential defects in that specialist design. This is not a valid co-ordination Item and it fails against HTA.
F2.60 Item S1.2: Pipe work
(a) The Defect
- The allegation in respect of this Item is the existence of rubble and debris in the drainage pipe work.
(b) The Case Against HTA
- Accordingly, the case against HTA in respect of Item S1.2 is the same as in respect of Item S1.1: the alleged failure on the part of HTA to get DJH to produce a report on the performance of the drainage system. For the same reasons set out above, I consider that that allegation must fail. This was a matter for DJH to sort out in their direct dealings with Waltham at the appropriate time; it was not a co-ordination matter for HTA.
F2.61 Item S1.3.2: Rainwater Storage Tank
(a) The Defect
- This is an item connected with the rainwater storage tank. The more important allegations in respect of this tank are made against DJH and are dealt with in Section H2.2 below. Item S1.3.2 is solely concerned with the patch repairs that were subsequently found over parts of an older split in the tank. The allegation against HTA is that they should have obtained a report on the damage/repair to the tank. Again this is put as a co-ordination failure.
(b) Analysis
- Again, I am not persuaded that this was or could be a co-ordination matter. There was obviously some sort of problem during the installation of the rainwater tank and patch repairs were carried out. There was nothing to suggest that HTA saw, or should have seen, this patch repair work during their periodic inspections, or were informed about it by others. Mr Thornton said he was quite unaware of it. If, as I find, HTA had no reasonable way of knowing about the patch repairs, they could not have ordered a report into how or why the repairs had come about.
- For those reasons, therefore, I reject this allegation against HTA.
F2.62 Item S3: Roof Trusses
- This item has been dealt with under Section F2.37 above.
F2.63 Item S4.1: Granite Wall (Lower)
- This allegation was live during most of the trial and Mr Thornton gave evidence to the effect that the allegation was incorrect because the work to the original granite retaining wall was carried out. The allegation was abandoned during the trial on Monday 13 November 2006.
F2.64 Items S7, S8 and S10: Miscellaneous Structural Matters
- These allegations were pleaded against HTA but they were not pursued against HTA at the trial.
F2.65 Summary
- Accordingly, I have found HTA liable for the following Items (or parts of Items) in the Scott Schedule:
a) Item 1.1.1 (Section F2.1 above);
b) Item 1.2.3 (Section F2.8 above);
c) Item 1.2.5 (Section F2.10 above);
d) Item 1.3.1 (Section F2.12 above);
e) Item 2.1.3 (Section F2.17 above);
f) Item 2.2.1 (Section F2.21 above);
g) Item 4.1.3 (Section F2.30 above);
h) Item 5.1.1 (Section F2.33 above);
i) Item 5.1.2 (Section F2.34 above);
j) Item 5.3.2/S3 (Section F2.37 above);
k) Item 5.4.2 (Section F2.39 above);
l) Item 5.4.3 (Section F2.40 above);
m) Item 5.4.4 (Section F2.41 above);
n) Item 6.1.1 (Section F2.43 above);
o) Item 6.2.1 (Section F2.45 above);
p) Item 8.2 (Section F2.48 above);
q) Items 9.1 and 9.2 (Section F2.49 above);
r) Item 10.3.2 (Section F2.52 above);
s) Item 10.3.3 (Section F2.53 above);
t) Item 10.3.4 (Section F2.54 above);
u) Item 10.4 (Section F2.55 above);
v) Item 11.2 (Section F2.57 above).
G DJH'S CONTRACTUAL OBLIGATIONS
G1 Relevant Documents
- In contrast to the critical uncertainties that bedevilled HTA's appointment, the engagement of DJH, and the terms of their engagement, are not the subject of any real controversy[5]. It appears that, in about May 1998, Mr Thomas suggested to Mr Hardcastle, of Centurion, that a structural engineer and a mechanical and electrical engineer would be required to carry out those specialist services at Maison d'Or. It seems that DJH were recommended, because they had a good local reputation. They were a Jersey company.
- The terms of DJH's engagement were separated out, and a distinction made, between the structural engineering work on the one hand, and the mechanical and electrical work on the other. DJH wrote two letters, both dated 27 May 1998, setting out in each their respective proposals. These proposals were accepted without demur by Mr Hardcastle of Centurion, on behalf of Mr McGlinn. The letters therefore comprised the terms of DJH's engagement. Mr McGlinn himself had no involvement in their appointment.
G2 Structural Engineer's Obligations
- In a letter of 27 May 1998 concerned with structural engineering matters, Mr Clarke, the relevant director of DJH, wrote in the following terms:
"Further to our recent meeting with Huw Thomas and Mike Richards, we write with our proposed terms of engagement for the main construction works.
These works, our duties, and associated conditions of contract can be conveniently subdivided into two, namely:
(i) Civil Enabling works involving temporary works, excavations, retaining walls, underground drainage and the like.
(ii) House structure and finishes internally and externally.
The current proposal by Messrs Thomas and Richards is that these works would be undertaken by one contractor, under one contract.
It would therefore be appropriate for our appointment contract to be under the terms and conditions of the Association of Consulting Engineers Conditions of Engagement Agreement B(1) where a civil/structural consulting engineer is engaged directly by the client but not as lead consultant.
Based on the current budget costing figures, the scale fee for normal duties, in accordance with the above document equates to 5.0% of the project cost.
Our proposed duties for these works are also listed on the attached sheet. Items starred thus (*) would be classified as additional duties within the ACE document. We propose to offer our services for a 10% reduction on scale fees (i.e. 4.5%) to include the listed additional duties.
Any further additional duties required would be charged on a time and disbursement basis ..."
- The Scope of Duties document was a separate document covering various elements of the external works and the works to the house itself. There was also a separate fee proposal by reference to the ACE Agreement B(1).
- Also included with the letter was the ACE Agreement B(1). Condition 2 set out at considerable length the "normal services" which DJH were offering to provide. For the purposes of this case it is perhaps only necessary to set out in full Condition 2.8, which dealt with the Construction Stage. This provided as follows:
"After receiving the Client's consent to proceed to the Construction Stage:
(a) Advise the Lead Consultant on the finalisation of formal contract documents relating to accepted tenders for carrying out the Works or any part thereof. The Consulting Engineer shall not accept any tender in respect of the Works.
(b) Examine shop fabrication drawings, standard details, bar bending schedules and specifications submitted by Contractors for the Works or parts thereof, in respect of conformity with the Consulting Engineer's design and in particular in respect of general dimensions, structural adequacy of members and connections and compliance with performance criteria.
(c) Advise the Client through the Lead Consultant on the need for special inspections or tests arising during the construction of the Work.
(d) Advise on the appointment and duties of Site Staff and, where they have been appointed, instruct Site Staff in accordance with Condition 4.
(e) Assist the Lead Consultant in examining Contractors' proposals as may be required by contract for the Works but not the consideration of alternative design for the Works submitted by Contractors.
(f) Attend relevant site meetings and make other periodic visits to the site as appropriate to the stage of construction or as otherwise agreed to assist the Lead Consultant to monitor that the Works are being executed generally in accordance with the contract documents and with good engineering practice and advise the Lead Consultant on the need for instructions to Contractors. The frequency of site meetings and of periodic visits by the Consulting Engineer shall be as specified in the Memorandum of Agreement or as otherwise agreed between the Client and the Consulting Engineer.
(g) Advise the Lead Consultant on certificates for payment to Contactors in respect of the Work.
(h) Perform any services ... which the Consulting Engineer may be so required to do under any contract for the execution of the Works including where appropriate the witnessing of any specified tests, provided that the Consulting Engineer may decline to perform any services specified in a contract the terms of which have not been approved by the Consulting Engineer.
(i) Inspect the Works on completion and, in conjunction with the Site Staff, record any defects.
(j) On completion of the Works deliver upon request to the Client one copy of each of the final drawings supplied by the Consulting Engineer to Contractors for the purpose of constructing the Works.
(k) Perform work or advise the Client in connection with any claim or matter where such claim or matter arises out of any contract for the execution of the Works and is referred for the first time to the Consulting Engineer provided that this service shall not extend to the detailed examination of any financial claim nor to advising the Client following the taking of any step in or towards any resolution of any dispute or difference or towards any arbitration or litigation in connection with the Works."
- There is apparently nothing in the ACE terms and conditions dealing with the standard which DJH needed to achieve in carrying out these services. It seems to me plain that DJH had to perform these services exercising the reasonable skill and care to be expected of an ordinarily competent structural engineer.
G3 M&E Engineering Obligations
- The letter of 27 May in respect of the M&E services was shorter. It was written by Mr Roach who, as set out in paragraph 692 below, went on to work for the mechanical sub-contractor on Maison d'Or, PHS, and wrote at least one very critical letter of DJH.
- His letter on behalf of DJH of 27 May read as follows:
"Following our recent meeting with Huw Thomas we write with our proposed terms of engagement for providing a Building Services Consultancy for the above project.
We would propose that our engagement be based on the Association of Consulting Engineers Agreement Agreement B(2) where a mechanical and electrical consulting engineer is engaged directly by the client but not as lead consultant.
Based on the current budget costing figures, the scale fee for normal duties, in accordance with the above document equates to 2.04% of the project cost as indicated on the attached sheet.
Our proposed duties for these works are also listed on the attached sheet. Items starred thus (*) would be classified as additional duties within the ACE document. We propose to offer our services with a 10% reduction on scale fees (i.e. 1.88%) while still including the listed additional duties.
Any further additional duties required would be charged on a time and disbursement basis ..."
- Again, there was a separate document entitled 'Scope Duties' which expressly included:
"Design, Tender and on site monitoring of:
- Boosted hot and cold water
- Fuel storage and distribution
- Mains power and distribution
- Internal and External lighting
- Television and satellite installation
- Security and CCTV systems
- Lightning control systems
- Again, there was also a short document setting out the M&E fee proposal by reference to the ACE Agreement B(2). The ACE conditions of engagement as set out in Agreement B(2) were very similar to the B(1) document set out in paragraph 684 above. There is a very similar list of services to be provided by DJH at the Construction Stage, set out at Clause 2.2 of the Conditions. Particular provisions of Clause 2.8 of Agreement B(2) which differ slightly from Clause 2.8 of Agreement B(1) are as follows:
"(b) Examine Installation Drawings, Shop Drawings and Builders Work Details submitted by Contractors for the Works or parts thereof, in respect of the design intent in compliance with performance criteria.
...
(g) Provide technical advice to the Lead Consultant on certificates for payment to Contractors in respect of the Works and provide technical information to any other Consultant to enable accounts for the Works to be agreed.
...
(i) Examine the detailed proposals of Contractors or Sub-Contractors for carrying out commissioning procedures and performance testing. Comment to the Client on any requirements of these proposals affecting the programme for the works.
(j) Subsequent to setting to work and regulation of the buildings, plant and equipment of the Works by Contractors and Sub-Contractors, examine the results of commissioning and the documentary records thereof.
...
(l) On completion of the Works receive copies of Record Drawings operating instructions and maintenance manuals prepared by Contractors or Sub-Contractors if so required under their contracts for construction and if generally satisfactory deliver one copy of the same to the Client. If so requested deliver to the Client one copy of each of the final drawings supplied to Contractors for the purpose of constructing the Works."
- Again, in the absence of any express term as to the standard for DJH to achieve in carrying out these services, it is clear that they were obliged to carry them out exercising the reasonable skill and care to be expected of an ordinarily competent mechanical and electrical engineer.
G4 General Performance
- It was clear from the documents that were put to Mr Ellerington of DJH during his cross-examination that, during the project, some criticisms were made of their performance, and in particular, their failure to attend certain meetings and their failure to produce detailed information. However, I find that these complaints were no more than the usual sorts of points that arise on large projects like this. I do not consider that anything significant turns on those general criticisms.
- One unusual feature of DJH's involvement was the departure of one of their partners, Mr Roach, to the mechanical sub-contractor on the Maison d'Or project PHS. He wrote an extraordinary letter [G7/2324] in which he made vivid criticisms of DJH in a very regrettable tone. There was no evidence before me to justify this attack, and I can only conclude that Mr Roach's points were generated by some sort of personal animus. Again, I do not consider them relevant to the allegations in this case.
- Of greater significance to these disputes was Mr Ellerington's evidence that, as the project drew to a close, DJH were reviewing both the mechanical and electrical elements of the works as part of their obligation to review the payment applications being put forward by the respective mechanical and electrical sub-contractors. Mr Ellerington accepted that, in doing this, DJH would have to take a view as to what was complete and what was incomplete, and what element of their works was satisfactory and what elements were unsatisfactory. There were, however, no notes from DJH recording the results of this process.
- It appears from their fee invoices that, from August 2001 onwards, DJH were contending that the mechanical and electrical works were 100% complete. That plainly cannot have been the case, given the incomplete work and the need for commissioning of the M & E services. In that respect, Mr Ellerington confirmed that DJH had carried out preliminary inspections (although no notes of such inspections existed) but they had not yet got to the stage where they could issue to the sub-contractors a list of defective work. Mr Ellerington confirmed that there was no final snagging "because a lot of the finishing items were incomplete". He said that there were no defects lists or lists of items of incomplete work.
- The electrical sub-contractor, Ideal Conditions, produced a draft Operating and Maintenance Manual in October 2001 upon which DJH commented promptly thereafter. There was a greater difficulty with the mechanical sub-contractor, PHS, who, according to Mr Ellerington, failed to produce any proper manuals, just "a collection of manufacturers' details and publications. It was not specific to the job". These difficulties with PHS led to a suggestion that DJH take over their commissioning obligations, a suggestion that DJH declined.
- Mr Ellerington confirmed that testing and commissioning never took place. There was no explanation as to how, in such circumstances, DJH could have claimed that the mechanical and electrical work was 100% complete. I note that, in their closing submissions, DJH accept that there should be an abatement of their fees (the amount of which has been agreed) to reflect the lack of completeness.
- Once Waltham had left site in January 2002, it does not appear that DJH carried out any further works at the site. Certainly, neither PHS nor the electrical sub-contactor went back after Walthams had departed in January. The mechanical and electrical works therefore remained incomplete and un-snagged, having not been commissioned, and without any completed operating and maintenance manuals. DJH eventually determined their engagement in November of the same year on the basis of the non-payment of their fees although, as noted above, they had not actually carried out any work at the site for many months.
H. DJH'S LIABILITY FOR THE ITEMS IN THE SCOTT SCHEDULE
H1 Introduction
- DJH face allegations concerning their performance of the role of structural engineer (Section H2 below) and their role as the mechanical and electrical engineer (Section H3 below). I deal with the individual allegations and the issues relating to both liability and causation.
H2 Structural Items
H2.1 Items S1.1 and S1.2.1: Manhole Cover/Drainage
- The allegation is that the drainage system was not constructed in accordance with the design and specification provided by DJH. DJH accept this criticism, and they also accept that they should have identified the non-compliant items prior to completion of the installation. However DJH maintain that the non-compliant items do not compromise the integrity of the drainage system, and that therefore no damages are recoverable by the Claimant.
- It appears clear from the expert evidence that the drains worked. Mr Ross-Gower, the Claimant's structural expert, confirmed that "the drains do flow; they fall in the correct direction
the drains work". However, he also said that "the bed and surround to the drains is completely unacceptable" and that "the drainage of the bottom manhole does not work". It seems to me, therefore, that the issue is concerned with what, if any, appropriate remedial work should be carried out in consequence of the admitted breach of contract.
- I have already expressed the view that, in relation to defects in a new house, it will always be a matter of fact and degree as to whether a particular defect should be rectified, regardless of the disruption and cost, or whether, in all the circumstances, it can properly be left as it is. In my judgment, the fact that the drains worked cannot automatically mean that no remedial work was required, or that no damages can now be recovered. It seems to me that, on the basis of the evidence in Mr Ross-Gower's report about the defective drainage installation, remedial work to the drains was required, certainly in relation to the bed and surround, and the problem in the bottom manhole. I quantify the damages in relation to that item in Section M2 below.
H2.2 Item S1.3.1: Rainwater Storage Tank
- There is no dispute that the underground rainwater storage tank was not installed in accordance with the manufacturer's instructions and DJH's specification. The tank failed in situ and cracked open. The issue is whether or not that failure, which was plainly a matter for which Waltham could be roundly criticised, was also the responsibility of DJH. DJH deny any breach of contract on their part. For the reasons set out below, I have concluded that DJH are right.
- The tank and its foundations were the subject of detailed instructions from the manufacturer dated 11 August 1999. These explained how the tank should be installed. DJH passed on those detailed instructions and, in addition, provided to Waltham their own specification (dated 12 August), stipulating, amongst other things, the depth of the concrete base, the use of reinforcement and the need for a polythene sheet. Unfortunately, as Mr Ross-Gower accepted in cross-examination, Waltham failed to install the rainwater tank or lay the foundations in accordance with the specifications and instructions with which they had been provided. Indeed Mr Ross-Gower accepted that they had failed to comply with "almost every single aspect" of those instructions and specification.
- It is clear that Waltham's failure to comply with these specifications and instructions was the reason why the tank failed. In Mr Ross-Gower's words, Waltham's failure "
certainly was a significant contributory reason to why it failed
it was the main reason".
- Accordingly, on the basis of that evidence, for the claim against DJH to succeed, it would have to be demonstrated that DJH had failed to carry out proper periodic inspections and had negligently missed the non-compliant elements of the installation of the tank and its foundations. However, Mr Ross-Gower expressly accepted that the defective installation was not something that DJH should necessarily have seen on inspection and he exonerated them from any allegation of failure to inspect. In the light of that evidence, which was supported in every material respect by the later evidence of Mr Dibb-Fuller, DJH's expert, it seemed to me that this Item must fail against DJH.
- During Mr Ross-Gower's oral evidence, he freely admitted that he had no reason to blame DJH at all until he visited the site three days before the trial on 13 October 2006. That admission rather indicated that there had been a lack of care in the preparation of the allegations against DJH, and that was perhaps borne out by the suggestion, which Mr Ross-Gower endeavoured to pursue for the first time in his oral evidence, to the effect that DJH's foundation design was defective because it failed to take into account the fact that the ground at one end of the foundation slab was going to be backfill, rather than made ground. This assertion, which was nowhere set out in Mr Ross-Gower's report, was firmly rejected by Mr Dibb-Fuller who pointed out that the area where the foundation slab went into the fill material was:
"
very small and it is unlikely to have any global effect on the foundation at all. Therefore, if the existing ground was solid good ground then there is no reason why a slab, even spanning into those small areas of fill would fail particularly if it is reinforced".
- Accordingly, principally on the basis of Mr Ross-Gower's evidence, I reject this Item against DJH. To the extent that the Claimant relied on the unpleaded argument that the design failed to take into account the adjacent backfill, I reject that case. It was simply not made out on the evidence.
H2.3 Item S1.3.4: Patio
- The supporting beams for the patio were specified by DJH to be galvanised steel. The allegation against DJH was that the galvanised steel would not meet the required design life of 60 years.
- Again, rather like the previous Item, I was concerned by Mr Ross-Gower's admission that, at the time when this allegation was advanced, incorporated into the Scott Schedule and made the subject of his report, he did not know whether the beams had a design life of 60 years or not, and was certainly not in a position to make an allegation of professional negligence against DJH. It appears that the investigations/tests that were carried out in respect of this Item were only performed on 13 October 2006. Therefore, I am not confident that this allegation was properly made against DJH in the first place.
- In any event, I am satisfied that the belated investigations that were carried out demonstrated that DJH were not in breach of contract in respect of the galvanised steel. It appears that the experts agreed that the erosion of the galvanised steel would occur at between 2 and 5 microns per year. The galvanising that was measured on site demonstrated an average thickness of 2,000 microns. Thus, as a matter of simple mathematics, there was a design life for this steel work between 40 years and 100 years. As Mr Ross-Gower accepted, taking the arithmetical average of those two possibilities, it meant that this steel work would last for 70 years, a figure therefore in excess of the required design life.
- Again, in the light of Mr Ross-Gower's answers, I was slightly surprised that the matter was pursued with Mr Dibb-Fuller, but for completeness - I deal briefly with the points that were put to him. First, it was pointed out that DJH only specified a coating of only 85 microns, but it seemed to me that that was irrelevant given the actual findings on site and because, as Mr Dibb-Fuller explained, that was a minimum specification which would have been comfortably exceeded (as it was) when the galvanising was applied. Secondly, although there was a good deal of cross-examination about average thickness of galvanising and erosion rates, I do not consider that I was greatly assisted by such enquiries.
- The position is that the actual galvanised steel beneath this patio had a design life of somewhere between 40 and 100 years. In the round, it is therefore impossible to say that DJH's design and specification was provided in breach of contract because it failed to allow for a design life of 60 years.
- There is one final point on this Item. If I am wrong, and DJH were in breach of contract in respect of the actual amount of galvanising applied, I reject absolutely the notion that that would entitle Mr McGlinn to replace the entirety of the steel beams under the patio. Again it is back to the question of fact and degree that I referred to above. In my judgment, no reasonable homeowner, when told that the steel beams below his patio might (as a worst-case scenario) only last 40 years, rather than 60, would tear up the patio and replace the beams. Accordingly, even if I had found (which I have not) that DJH were in breach of contract in respect of this Item, I consider it to be an Item where the principle in Ruxley would have then been relevant (see Section K1.1 below).
H2.4 Items S2.2 S2.5: Tower Roof
- This item is admitted by DJH. The agreed sum is £5,557.
H2.5 Item S3: Roof Trusses
- For the reasons set out in Section F2.37 above, I have concluded that this is an Item for which HTA are responsible: HTA should have pointed out the very poor aesthetic appearance of these roof trusses to Waltham, and should have had the roof trusses altered.
- That same line of reasoning leads me to conclude that this is not an Item for which DJH could be liable. The engineering experts agreed that the trusses were satisfactory from a structural point of view. There was therefore nothing further for DJH to comment upon. Although Mr Dibb-Fuller was cross-examined by reference to a meeting minute which demonstrated that Mr Malcolm Hartigan of DJH was to inspect the roof trusses to confirm that they were structurally sound, it seemed to me that this was actually a point against the Claimant, because the evidence demonstrated that the inspection was carried out and the correct diagnosis made (i.e. that the trusses were structurally sound). It was not for DJH to advise as to aesthetics.
- Accordingly, I reject this Item against DJH.
H2.6 Item S4.1: Granite Wall (Lower)
- This allegation against DJH has now been abandoned.
H2.7 Item S4.2: Granite Wall (Upper)
- The granite retaining wall was a part of the original Villa Gardena site. There were cracks in the north side of the upper wall and DJH concede that they should have drawn those cracks to Mr McGlinn's attention at the outset of the works. They did not do so, and so no work to this part of the wall was included in Waltham's contract.
- Accordingly, I find that DJH were, on their own admission, in breach of contract in failing to point out these cracks. However, it seems to me that no loss has been established as having been caused by this breach. The evidence made plain that, as Mr Ross-Gower put it, the "work was never ordered, never carried out
and Mr McGlinn kept his money". There could be no clearer evidence than that to demonstrate that this Item has not caused any loss to Mr McGlinn.
- There was a suggestion that, in some way, the work would cost more to do now than it would have done at the time. Such claims are notoriously difficult to prove and require a comparison between, on the one hand, the expenditure of an agreed sum of money at year 1, and, on the other, the interest earned on that (saved) money from year 1 until the (larger) sum was actually spent. There was no such comparison exercise here. I therefore find that this was an Item which would entitle Mr McGlinn to nominal damages only.
H2.8 Item S10: Fixing of Lateral Straps
- This allegation concerns the restraining straps at the gable. It is an allegation against DJH that they failed to notice on inspection that the lateral restraint straps to the gables were not securely fixed.
- Like other structural items, it appears that this Item was pleaded and pursued against DJH with no real belief on the part of the Claimant's advisers that it was an Item for which DJH were, in truth, liable. Indeed, Mr Ross-Gower accepted in evidence that "until recently I have held the view that DJH would probably not have had reason to inspect the roof specifically when that element was under construction". No explanation was provided as to why this Item, which had been roundly rejected by the Claimant's own engineering expert, was nonetheless pleaded and pursued by the Claimant.
- Again, in common with a number of the structural items, the allegation against DJH at the trial was based on points that arose during the oral evidence, this time from Mr Ellerington. Mr Ross-Gower accepted that the original work was relatively simple and that an engineer would be entitled to trust the contractor to put it in properly. However he said that, because the straps had to be refitted (following some unrelated pipe-fitting work), in some way the re-doing of that simple work was something which the engineer should have inspected. I am bound to confess that the tortuous logic of this rather escaped me. In any event, I prefer the evidence of Mr Dibb-Fuller who said:
"I would find it difficult to say that somebody taking out one or two gable straps would make an engineer so alarmed that he would go back to site for a deliberate inspection. What I would expect to happen is that the next time he was at site he would go and have a look and if they were visible he would comment if they were not to his satisfaction. But to make a special visit for one or two gable straps I think is excessive."
- The gable straps were quickly covered up. There was nothing for DJH to see on their ordinary periodic inspections. On the basis of Mr Dibb-Fuller's evidence, I reject the suggestion that they should have made a special inspection just to look at these straps. Accordingly, I reject this Item against DJH.
H2.9 Summary on Structural Items
- Accordingly, I find that DJH are liable in respect of Items S1.1/S1.2.1, and S2.2 S2.5, with nominal damages for Item 4.2. I reject the claims against DJH in respect of all other Items.
H3 Mechanical and Electrical Engineering Items
H3.1 Introduction
- In his closing submissions, Mr Whitting helpfully divided up the many M and E issues into three categories: admitted items; incomplete items; and contentious items. I deal with each of those categories in separate sections below.
H3.2 Admitted Items
- The items which DJH accept are set out in Appendix 4 of Mr Whitting's closing submissions. Their maximum value, on the Claimant's case, is £116,007. Their minimum value, on DJH's case, is £77,354. I deal with the quantum disputes that make up that difference in Section M3 below. Accordingly, DJH are liable for these Items, namely 18.1 18.2, 22.2, 26.4, 26.5 26.23, 27.11, 27.14, 27.16, 29.4, 32.9, 33.2 and 35.1.
H3.3 Incomplete Items
- The incomplete Items are listed in Appendix 2 of Mr Whitting's closing submissions. They are a whole host of minor items for which the agreed value is £18,138. It is DJH's case that these Items comprise incomplete work which would have been carried out but for the departure from site of Waltham and the specialist sub-contractors in January 2002, and it was therefore unclear to DJH why the Claimant maintained that they were liable for any damages in respect of these Items. The Claimants solicitor's letter of 4 October 2006 put the Claimant's case in two ways:
"On our client's primary case the cost of completing those items was factored into the decision to demolish and reconstruct.
On our client's secondary case, the loss and damage caused by these failures is the cost of completing these items (where Walthams have been paid in full for them) alternatively the additional cost of paying another contractor to complete them (where Walthams have not been paid in full for them)."
- As to the primary case, I am in no doubt whatsoever that the decision to demolish did not rely in any way whatsoever on the fact that there was some £18,000 odd worth of M&E items that were incomplete: see paragraphs 141 and 142 above. Accordingly, the Claimant's primary case in respect of these items against DJH is simply not made out.
- I consider that Mr McGlinn's secondary case, as set out by his solicitors, was entirely sound in principle. The problem for him is that, on the evidence, there has been nothing to indicate which Items were paid for in full or, where the Items have not been paid for in full, what, if anything, is said to comprise the additional cost of completing them. In short, the Claimant has offered no evidence in support of his secondary case.
- Further and in any event, I do not consider that these Items were anything other than examples of work which Waltham would have finished, but for the repudiation and the decision not to let Waltham return to site. Therefore, by reference to the point of principle made in paragraphs 256-263 above, I conclude that these were temporary disconformities, not breaches of contract by Waltham, and no criticism can be made of DJH in consequence. In all those circumstances, it seems to me that it is impossible, even if I found that these items constituted a breach of contract on the part of DJH, to find that any damages could be recoverable.
H3.4 Contentious Items
- At Appendix 3 of Mr Whitting's closing submissions, he identifies a series of Items which he describes as contentious. These are all Items which are admitted to be defects in Waltham's work, but where it is said that, on the evidence, there was no breach of contract/negligence on the part of DJH. The principal points appear to be: first, that the Items were drawn to Waltham's attention, and that it is not DJH's fault if Waltham did not then go on to carry out the works; or secondly, that the Item should "ideally" have been seen on inspection.
- Again, it seems to me that these points are not capable of a general answer; my conclusion will always depend on the particular Item in question. Accordingly, I deal briefly below with each of the contentious Items. However, by way of introduction, I should say that, in my judgment, if a professional man identifies an element of defective work and draws it promptly to the attention of the contractor, he is obliged to monitor the progress of that item and, effectively, chase the contractor until the necessary remedial work is done. The alternative, once he has identified the defect to the contractor, would be to make a deduction from the contractor's valuations. In my judgment, if the professional has identified the defect in question and reasonably appreciates that the Item has not been rectified, then the onus would again be on him to demonstrate that he had made the necessary deduction from the interim payments.
- I now turn to deal briefly with each of the contentious items.
Item 15.1: Downlighters
- This was a snagging item which was brought to Waltham's attention at the site meeting on 13 February 2001. Plainly, as a result of this early identification, this Item should have been resolved long before Waltham left site. There is nothing to suggest that DJH chased for its completion at any time over the next ten months; neither is there anything to suggest that they advised WL to make a deduction from the valuations. For those reasons, I find that DJH are liable for this Item.
Item 15.9: Wall Light Scorched Wall
- This is a minor item of the sort that would ordinarily be sorted out on handover/snagging. Indeed, it is a defect that arises only because the lights had been in operation for some time. Although it appears that Waltham were informed about this defect, it is not clear when, and (in contrast to the previous Item) it seems likely to have been quite late on during Waltham's time on site. Accordingly, I do not consider that, in relation to this Item, there was sufficient evidence to indicate that there was anything further that DJH could reasonably have done prior to Waltham's departure.
Item 17.1: Faults on Cabling
- This is the sort of defect that could only have become apparent on commissioning or, at the earliest, in the preparatory work prior to commissioning. Since that stage had not been reached, this is not an Item for which DJH can be liable.
Item 17.4: External Luminaires
- Originally, DJH faced an array of allegations in relation to this Item but those concerning design, selection and scheduling of the luminaires were abandoned on 20 September 2006, and the only remaining allegation concerns inspection. The problem was identified in the minutes of the meeting on 15 September 2001. It appears to be agreed that, as a result of this, the matter should have been dealt with in the autumn of 2001, but it was not. There is nothing to show that DJH chased for this item to be completed or that they gave any valuation advice to WL in respect of this defect. Accordingly, on the basis of the principles set out above, I consider that DJH are liable for this item.
Item 19.1: Fire Alarms Too Close To Wall
- It is admitted that this is a defect. The highest that the experts could put it in their joint statement was that this might "ideally" have been identified on periodic inspections. That seems to me to indicate plainly that the experts could not say that it was something that should have been seen by DJH on periodic inspection: it was something that might have been identified (and clearly it would have been better if it had been), but, equally, it might not have been. In the light of that agreement, I reject the claim against DJH for this Item. Furthermore, in respect of this Item, and all other Items which might "ideally" have been identified by DJH, I do not consider that the totality of the evidence makes out a case of negligent inspection.
Item 20.3: Incomplete Intruder Alarm
- The allegation was that the alarm system did not extend to the garage. However, Mr McGlinn accepted, by reference to documents and discussions in December 1999, that it had been agreed that, because "the garage will be closed to visitors/street callers
the controls need to be located elsewhere". Accordingly, in my judgment, Mr Whitting was right to submit that the allegation should not have been made and was doomed to fail.
Item 27.9: FCU Requires Fixing in the Master Bedroom
- Again the experts have agreed that this might 'ideally' have been identified by DJH. The same points apply as under paragraph 740 above. I therefore reject this Item.
Item 28.4: No Acoustic Treatment to Enclosure
- The allegation is that, because of planning restrictions, there should have been acoustic treatment to the enclosure. At the time of the experts' meeting it appears that no evidence of such planning restrictions had been produced. There was none in the trial bundle. Accordingly this Item fails.
Items 29.14, 29.15 and 29.16: Extract Fan
- Again this is an Item which the experts have agreed might 'ideally' have been identified on periodic inspection. The points at paragraph 740 above apply again and I reject this Item.
Item 29.20: Incorrect Labelling of Supply Air Fan in Garage
- Again this is an item which the experts have agreed might 'ideally' have been identified on periodic inspection. The points at paragraph 740 above apply again and I reject this Item.
Item 29.21: Garage Extract Fan
- Again this is an item which the experts have agreed might 'ideally' have been identified on periodic inspection. The points at paragraph 740 above apply again and I reject this Item.
Item 30.3: Restricted Air Discharge to FCU
- Again this is an item which the experts have agreed might 'ideally' have been identified on periodic inspection. The same points at paragraph 740 above apply again and I reject this Item.
Item 32.7: No Hot Water Return System Pipe Work in House
- Hot water service return pipe work was shown on DJH's drawing. However, it was not visible on either the ground or the first floor. This was a breach of contract on the part of Waltham. I do not accept DJH's case that this is something that, if apparent at all, would have only been seen on final inspection or, at the least, at testing and commissioning. It seems to me that this is a more important element of the services than that, and should have been seen by DJH much earlier. In the circumstances I consider that DJH are liable for this Item.
Item 32.8: Incorrect Size Water Pipe Connections to Bath
- The allegation is that, although 28 mm pipe connections were specified, 22 mm pipe connections were used by Waltham and/or their sub-contractors. In contrast to the previous Item, which I consider to be significant, I consider that this construction defect is a matter of detail and DJH cannot possibly be criticised for failing to spot the error. I therefore reject this Item.
Item 33.5: Boiler Flues Not Installed Correctly
- The defect was that the horizontal run was laid with the slope going down to the vertical section (rather than up), which meant that condensation collected at the junction with the vertical section. The experts have agreed that this is something which might 'ideally' have been identified on periodic inspection. The same points at paragraph 740 above apply again and I reject this Item.
Item 39.2: Poor Installation of Sanitary Equipment
- Again these are Items which the experts have agreed might 'ideally' have been identified on periodic inspection. The same points at paragraph 740 above apply again and I reject this Item.
Item 40.1: Installation of Irrigation Pump Not Completed
- Again this is an Item which the experts have agreed might 'ideally' have been identified on periodic inspection. The same points at paragraph 740 above apply again and I reject this Item.
Summary
- Accordingly, in respect of the contentious items, I reject them all, save for Item 15.1, Item 17.4 and Item 32.7. The relevant quantification exercise in respect of those items is set out in Section M3 below.
SECTION I. WL'S CONTRACTUAL OBLIGATIONS
I1 As Quantity Surveyors
- It appears that WL were first approached in connection with the provision of quantity surveying services on the Maison d'Or project in April 1998. On 23 April, Mr Richards of WL wrote to Mr Thomas attaching his fee proposal for quantity surveying and cost management. The letter enclosed documentation in respect of the level of proposed fees and also offered, if the fees were acceptable, to draft a QS agreement for Mr McGlinn to sign. No such agreement was ever drawn up. It appears that WL carried out their role as Quantity Surveyors without there having been any sort of discussion as to what services they would provide, let alone a written agreement setting out such services.
- However, for present purposes, that absence of any record of the QS services that they were obliged to perform makes little difference. The reason for that is simple. The allegations which WL face in this trial are very specific: none of them could be said to arise out of their general provision of quantity surveying services.
- I am also conscious that, in the over-valuation trial, due to commence later this year, WL face extensive allegations as to the over-valuation of Waltham's work. The precise nature and extent of the quantity surveying services that they were obliged to perform may be highly material to that trial. I therefore decline to make any findings in this Judgment as to the nature, scope and extent of those services. That must await the second trial.
I2 As Project Managers
- As set out in Section C8 above, Centurion wrote to the other consultants on 29 January 1999 to inform them that Mr Richards of WL had been appointed Project Manager. Mr Hardcastle, who wrote the letter, confirmed that those were his express instructions from Mr McGlinn. Mr McGlinn denied that he had used those words to describe Mr Richards' new role. It seems clear to me from his other evidence that Mr Hardcastle was a careful man who would not have made a mistake of this sort. I find, therefore, that those were precisely the words used by Mr McGlinn to describe Mr Richards' new function. It was Mr Hardcastle's understanding that Mr Richards would manage the project for Mr McGlinn.
- However, it is usually a mistake to ascribe too much significance to titles or labels, and, in this case, it is positively misleading to conclude that the expression 'Project Manager' (as used by Mr McGlinn and Mr Hardcastle, who had little experience of building projects) had any particular connotation or meaning. It is instead necessary to consider why this change came about and what Mr McGlinn meant it to cover, and what WL did in consequence of this appointment.
- I have no doubt that, as set out in Section C8 above, Mr McGlinn did not trust Mr Thomas to have anything to do with money matters. Furthermore, he wanted to ensure that all the bills that he paid had been properly vetted. He was not going to undertake that task. Mr Hardcastle was not qualified to do it. Mr Richards, on the other hand, was qualified and was already the QS on the project. Mr McGlinn plainly trusted Mr Richards to perform this additional function. Accordingly, after his row with Mr Thomas over the unpaid fees on the Sandbanks property, and Mr Richards' successful attempts to persuade Mr McGlinn to continue to use HTA on both Sandbanks and Maison d'Or, Mr McGlinn clearly decided that he never wanted to be in that position again. Thus, he gave Mr Richards full authority to deal with all invoices rendered by consultants and contractors on either project. I find that this is what Mr McGlinn meant by 'Project Manager'.
- On a proper analysis, it does not appear that Mr Hardcastle had formed a wildly different view of Mr Richards' new role. He was asked what he understood Mr Richards would be doing he said:
"Slightly difficult to say, but suffice to say that he would OK all amounts of work done from that date and obviously, having authorised payments, they would be sent to us to be - the transaction to be paid.
Q: Did you understand from Mr McGlinn that the only thing that Mr Richards was to do as project manager was to OK the invoices, and there were to be no other duties?
A: I do not know what I did understand. I had instructions that he was going to be the project manager and would receive all future invoices ... Mr McGlinn did not give me a very clear explanation."
A little later in his cross-examination, Mr Hardcastle made clear that his understanding was that all invoices had to be authorised by Mr Richards and that included the invoices payable to Walthams.
- In the UK construction industry, a Project Manager can sometimes perform extensive tasks connected with the running of the project on site, including the performance of a detailed contract administration function. He can be the effective lead consultant. In the present case, I have already found that WL were not asked to, and certainly did not, perform a lead consultant role here. Mr Richards of WL was effectively an employer's representative with full financial authority and, unlike the other professionals, he had a direct link to Mr McGlinn.
- On the evidence, I consider that, in addition to their financial obligations, WL did have a role to play in carrying out certain administrative functions. Thus, for instance, they were involved in a consideration of Waltham's claim for an extension of time. They were also involved in passing on instructions to Waltham, and chasing up missing or incomplete information. However, I reject any suggestion that, as a result of their appointment as project managers, a whole raft of obligations that were otherwise the responsibility of HTA (or others) were somehow transferred to WL. To make any such finding, I would have had to have heard from Mr Thomas to that effect, and I did not. WL's additional obligations were in any event limited and ad hoc, and grew out of their effective proximity to Mr McGlinn.
- This point that WL's role expanded a little simply because they were in constant contact with Mr McGlinn is supported by the evidence of a number of witnesses. They included Mr Disdale, who said that Mr Richards was "our prime point of contact for a period and it would be him that was asking us questions or chasing us for information". In consequence of this, Mr Disdale agreed that it was Mr Richards' role to pass on what was required to the other consultants. He concluded by describing Mr Richards as "quite a liaison point for me. He was the guy who chased us more than anyone else, so I imagine he had the reins
" Mr Tanner described Mr Richards as "the man who was closely involved in the project with Ian McGlinn".
- Although I have found that WL's appointment as project managers did not lead to a wholesale transfer of obligations from HTA to WL, their performance of a number of administrative tasks (liaising, passing on information etc) inevitably muddled an already confused situation still further. However, whether it caused specific difficulties for HTA, or limited their actions in some way, I cannot say and do not find; there was no evidence to that effect from Mr Thornton, and Mr Thomas gave no evidence at all. For the avoidance of doubt, therefore, I reject on the facts HTA's point, made at paragraph 113 of their closing submissions, that "what does matter is what HTA perceived WL's role to be". In truth, there was no evidence that HTA's perception of WL's role, whatever it might have been, made any difference at all to the outcome of these allegations, whether against HTA or WL.
- Accordingly, I approach the very limited allegations against WL on the basis that their contractual obligations were those of Quantity Surveyor with complete financial authority from the client, and certain relatively limited administrative functions, associated with being a de facto employer's representative. It is therefore necessary to consider these allegations on an item-by-item basis.
J WL'S LIABILITY FOR THE ITEMS IN THE SCOTT SCHEDULE
J1 Introduction
- I set out below my findings in relation to the individual items pleaded against WL. It will be seen that, save in respect of the items dealt with in Section J7 below, my conclusions in respect of WL's liability turn not on the precise scope of their contractual obligations, but on the facts of the individual allegation.
J2 The Contingent Nature of the Pleaded Claims
- It is important to note that the claims made by the Claimant against WL are made on a contingent basis. This takes effect in two different ways. First, it is said that the claims against WL are only pursued at all if, in respect of the Item in question, the Claimant has not been successful against HTA. In truth, this point has become academic since, in Section F2 above, I have not found HTA to be liable for any of the Items alleged against WL. Accordingly, on the face of the pleadings, these claims are still open to the Claimant against WL.
- Secondly, the claims against WL are pursued by the Claimant on the basis of what they say are HTA's allegations against WL in their responses to the Scott Schedule. Examples of this can be seen in relation to Items 2.2.1 and 2.2.2, where HTA alleged that WL produced the Bills (which is not in fact disputed) and Item S1.1, where HTA alleged that "HTA's role of co-ordinating other consultants was superseded by the appointment of WL as project managers".
- It may very well be that the Claimant's pleading of his claim against WL is designed with one eye on the cost consequences should these allegations fail. At this stage, I should simply say that I am not persuaded that all of the points now made by the Claimant against WL arise out of matters pleaded by HTA; it seems to me that many of the allegations are, in reality, pursued independently by the Claimant, regardless of what HTA said in their pleadings. I deal with the specific allegations in full below.
J3 Item 1.2.1: Granite to Haddonstone
- I have dealt with the facts in respect of this change at Section C7.1 above. I have analysed the consequences of this allegation as against HTA in Section F2.6 above. I have concluded that this change was approved by Mr McGlinn; that there was no important information about the Haddonstone with which he was not provided; and that the Haddonstone was not, of itself, an inferior or unsuitable material for use at Maison d'Or. Those findings are sufficient for me to dismiss the allegations against WL as well.
- It should also be noted that the criticism about the Haddonstone product itself, namely Item 1.2.2, is not pleaded against WL. Thus, the only claim that they have to meet is the fact that the change itself constituted a breach of contract. For the reasons which I have previously set out, I dismiss any such suggestion. I expressly agree with paragraph 22 of the closing submissions of Mr Reese QC and Mr Warnock that "this was a rational costs saving suggestion properly made to a client who, after receiving tenders, asked his professional team to find possible savings".
- Finally, in this context, I should deal with WL's letter of 20 November 1998. The Claimant's case was that this letter wrongly suggested that the change from granite to Haddonstone did not 'alter the design' of the house and reliance was placed on the incorrect nature of that statement. In my judgment, this criticism is palpably unfair. First, the letter makes clear that the reductions will result in "design changes", so no fair reading of the letter could have left the reader with the impression that there were to be no design changes at all. If Mr McGlinn had been confused by the letter, which would have been a much fairer submission, he could have asked Mr Richards precisely what he meant. There is no evidence that he did so; indeed, the evidence was that Mr McGlinn did not really read documents at all.
- Secondly, there was a good deal of esoteric debate as to what was meant by "design" in that context. If "design" meant shape or space, then this change did not alter the shape or space of the building; if "design" meant the look of the building then, to an extent, the change to Haddonstone altered (albeit in a minor way) the appearance of the house. However, I regarded this debate as ultimately irrelevant. Mr McGlinn knew what the granite would look like and, because he saw the Haddonstone brochure, he knew what the Haddonstone would look like in its stead. In those circumstances, he knew what the change involved. I therefore reject the criticism of WL based on the letter of 20 November 1998.
J4 Items 2.2.1, 2.2.3 and 3.1.3: The Change From Oak to Idigbo and the Quality of the Internal Joinery
- I have dealt with the facts surrounding the change from oak to idigbo in Section C7.2 above. I have analysed and rejected the claim that this change constituted a breach of contract on the part of HTA in Section F2.23 above. I have concluded that the change was approved by Mr McGlinn; that all relevant information was available to Mr McGlinn when he approved the change; and that, in view of the experts' agreement that, technically, idigbo was not inferior to oak, there was no detriment to Mr McGlinn as a result of this change in any event. It seems to me, therefore, that the same reasoning must lead to the rejection of the allegation at Item 2.2.3 against WL, namely that they (wrongly and without instruction) approved the change from oak to idigbo. Further, if Mr McGlinn was right and Mr Richards told him that "idigbo was as good as oak" then, on the evidence before me, that was a correct technical statement.
- Again, as against WL, the Claimant relies on the WL letter of 20 November 1998. I have already said (paragraph 772 above) that, in my judgment, it is not a fair reading of this letter to conclude that WL were saying that there were no design changes as a result of the reductions. But in any event it seems to me that, in relation to the change from oak to idigbo, this was not strictly a design change at all. That was simply the replacement of one material with another, both materials being technically as capable as the other and both materials looking very similar. Accordingly, even on the Claimant's reading of the letter of 20 November 1998, I reject the criticism of WL in respect of the change from oak to idigbo.
- The remaining related allegations against WL (Items 2.2.1 and 3.1.3) are concerned with the alleged quality of finish to the joinery and WL's responsibility for the poor quality of finish because of their inadequate specification. The Claimant's case is that the words "wrot oak" did not convey to Waltham the necessary high standard of finish of the timber required.
- I reject this allegation for two reasons. First, the oak was changed, by agreement, to idigbo. Thus it seems to me that the words in the Bill were rendered irrelevant from the outset and Waltham would have had no need to have regard to them at all: see paragraphs 453-456 above.
- Secondly, this allegation is only sustainable if it could be demonstrated that the timber supplied and installed by Waltham was inadequate. This is a separate point to the quality of the finish to the joinery, which is Item 5.1.1 and not alleged against WL. For the reasons set out in Section F2.21 above, I have concluded that the quality of the idigbo was high. The only problems with the timber were a list of minor matters which Mr Jowett accepted were snagging, and the two windows that had to be replaced because of shakes. HTA are liable for those two windows because I have found that they should have pointed out the problem long before Waltham left site. However, WL are not liable for those two windows because they had no aesthetic inspection function. Beyond that, there was no inherent problem with the quality of the timber so, whatever the Bills of Quantities had said, there was no breach and no loss for which WL can now be liable.
- For these reasons, I reject the Claimant's claim against WL in respect of Items 2.2.1, 2.2.3 and 3.1.3.
J5 Items 2.2.2 and 3.1.2
- These allegations, which concerned the polish for the windows and the doors, have now been abandoned by the Claimant.
J6 Item 10.2
- This allegation was that WL designed the garden gate and that, because the gate does not comply with the Jersey by-laws, WL were in breach of contract. In fact, there was no evidence that WL had anything to do with the design of the garden gate. The allegation against WL has now been abandoned.
J7 Items 27.2, 27.11, 27.16, 29.4, 35.1, S1.1, S1.2, S1.3.2 and S4.1: Miscellaneous Allegations
- All of these Items were concerned with an underlying allegation by the Claimant that HTA failed to co-ordinate/integrate the architectural design with the mechanical and electrical design. The Claimant contends that it is inherent in HTA's pleaded response that they were seeking to blame WL for this failure to co-ordinate and so, in the alternative, the Claimant pursues these Items against WL.
- The HTA pleaded response in relation to these items certainly refers to WL's role as project manager. For the reasons which I have given, WL were not the project managers in the conventional sense of that expression. On that basis alone, these allegations must fail.
- I should also record that, at the outset of the trial, on 17 October 2006, HTA produced a Note in relation to WL. In relation to these Items, HTA made their position clear, namely that the allegations pursued by the Claimant did not arise out of their pleading and that, for example, obtaining a report on a structural defect was not a co-ordination function. It seems to me that there is force in at least some of the points made in this Note, which may be relevant on costs. More importantly, for present purposes, I have concluded that, on the evidence, WL indeed had no design or design co-ordination role.
- Since these allegations could only have been successful against WL if I found that WL were obliged to perform a project manager's or a design co-ordination role, and I have found neither, I reject these allegations against WL in full.
J8 Summary
- For the reasons set out above, I have concluded that WL are not liable for any of the limited number of Scott Schedule Items alleged against them by the Claimant. The claims against them in the first trial are therefore dismissed. I anticipate that there will be a major debate between the Claimant and HTA as to who is liable for the costs of WL's involvement in this trial. However, that is not a matter for this Judgment.
K CAUSATION AND QUANTUM: PRINCIPLES, ISSUES AND ANALYSIS
K1 General Principles
K1.1 Diminution in Value and Cost of Reinstatement
- Traditionally, for causes of action in tort and contract concerned with damage to property, damages were based on the diminution in the value of the property itself: see, for example, Jones v Gooday [1841] 8 M&W 146, 151 ER 985. More recently, in an action against a contractor or a professional for defective work, the appropriate measure of loss has usually been taken to be the cost of reinstatement/repair, because that was the foreseeable consequence of the defective work: see, by way of example, East Ham BC v Bernard Sunley & Sons Ltd [1966] AC 406, Hollebone v Midhurst and Fernhurst Builders Ltd [1968] 1 Lloyds Rep 38; Harbutts Plasticine Ltd v Wayne Tank & Pump Co Ltd [1970] 1 All ER 225 and Darlington Borough Council v Wiltshier Northern Ltd [1995] 1 WLR 68 at 79.
- Foreseeability is plainly of importance in assessing the correct measure of loss. If the claimant only has a limited interest in the property, or if he could obtain a satisfactory replacement for the property by buying elsewhere, then it would not be foreseeable that he would carry out repair/reinstatement, and his loss would be accurately assessed by reference to the diminution in the value of the land or the cost of purchasing a replacement: see, for example, C R Taylor (Wholesale) Ltd v Hepworths Ltd [1977] 2 All ER 784, referred to with approval by Lord Jauncey and Lord Lloyd in Ruxley.
- The cost of reinstatement/repair will not be used as the measure of loss if such cost is disproportionate to the end to be attained. In Ruxley Electronics v Forsyth [1996] AC 344 HL, the diving area of the swimming pool was less than specified in the contract, although it was suitable for diving. The House of Lords held that it was unreasonable to award damages based on the cost of reinstatement of the pool, because that would be out of all proportion to the benefit to be obtained. Since there was no diminution in value, no damages were recovered beyond an award of £2,500 for loss of amenity. An important element of the finding in Ruxley that the cost of reinstatement was out of all proportion was the judge's rejection of the claimant's evidence that he intended to rebuild the pool. The House of Lords made it clear that, while such matters were not normally of relevance to the court, they might be important on the issue of reasonableness. That brings me onto the next point.
K1.2 Duty to Act Reasonably/Reasonableness
- A claimant who carries out either the repair or reinstatement of his property must act reasonably. As His Honour Judge Newey QC put it in his judgment in The Board of Governors of the Hospitals for Sick Children & Anor v McLaughlin & Harvey Plc and Ors (referred to below as Great Ormond Street) 19 Con LR 25:
"The plaintiff who carries out either repair or reinstatement of his property must act reasonably. He can only recover as damages the cost which the defendant ought reasonably to have foreseen that he would incur and the defendant would not have foreseen unreasonable expenditure. Reasonable costs do not, however, mean the minimum amount which, with hindsight, it could be held would have sufficed. When the nature of the repairs is such that the plaintiff can only make them with the assistance of expert advice the defendant should have foreseen that he would take such advice and be influenced by it."
- In more recent authorities, the importance of reasonableness has been emphasised. For example, in Southampton Container Terminals Ltd v Schiffahrisgesellsch "Hansa Australia" MGH & Co (The MV "Maersk Colombo") [2001] EWCA Civ 717, Clarke LJ (as he then was) referred to a number of cases, including some of those cited in paragraph 787 above, and said:
"As I read the authorities, where reinstatement is the appropriate basis for the assessment of damages, it must be both reasonable to reinstate and the amount awarded must be objectively fair as between the claimants and the defendants."
In addition, in a lucid exposition of the principle in Ruxley, he made plain that the critical test in the assessment of damage was that of reasonableness. He referred to the speech of Lord Bridge in Ruxley, where the point was made that, to hold that the measure of the building owner's loss was the cost of reinstatement, however unreasonable it would be to incur that cost, "seemed to him to fly in the face of common sense".
- Later, at paragraph 52 of his judgment in The "Maersk Colombo", Clarke LJ referred to the decision of His Honour Judge Bowsher QC in this court in the case of Pegler v Wang (UK) Ltd [2000] All ER 260. Clarke LJ expressly approved Judge Bowsher's conclusion that the tenor of the speeches of the House of Lords in Ruxley "was that reasonableness is part of the primary assessment of damages as well as of mitigation of damage".
K1.3 Duty to Mitigate/Alternate Schemes
- If there are two equally efficacious alternative remedial schemes, and one is cheaper than the other, then prima facie the claimant is obliged to put in hand the cheaper of the two schemes. In Great Ormond Street, Judge Newey said:
"The plaintiff has, whether as part of the requirement that he act reasonably or otherwise, a duty to mitigate his loss. This may require him, if presented with two or more choices, to choose the one which will keep his losses to the minimum. If he is incurring loss because he cannot use his property, his duty to mitigate may require him to repair it as quickly as possible, even if earlier repairs would cost more than later repairs would. The duty to mitigate may require the plaintiff to have regard to advice from third parties, or even from the defendant, or from the defendant's advisers."
- In the subsequent case of George Fischer, to which I have already referred on the question of inspection, the remedial work had not been carried out. There was a straight choice between two proposed remedial schemes, one of which was significantly less expensive than the scheme favoured by the claimant. His Honour Judge Hicks QC held that the proper measure of loss was by reference to the less expensive scheme. He said:
"Each scheme was criticised by the proponents of the other. Neither had been designed in full detail, so acceptance of either is to some extent dependent, first, on a judgment as to the ability of a designer, with the assistance of the specialist knowledge of the relevant manufacturer and a contractor experienced in using the system, to devise suitable detailed treatment of all the potential trouble-spots and, second, on an assessment of the guarantees and bonds offered by the manufacturer and contractor. Since Soladex would be so much the cheaper and cannot be said to be the more detrimental to the appearance of the buildings I should have thought, if anything, the reverse it must clearly be preferred unless the criticisms of its expected effectiveness are, taking the above considerations into account, made good on the balance of probabilities. In my judgment they are not."
K1.4 Expert Advice
- Slightly different considerations may apply if a claimant has taken professional advice and carried out a remedial scheme on the basis of that advice. As Judge Newey pointed out in the passage of his judgment in the Great Ormond Street case, set out at paragraph 790 above, in certain cases it would be foreseeable that a claimant would decide which repair scheme to put in hand with the assistance of expert advice, and that it would be foreseeable that the claimant would take such advice and be influenced by it. In such circumstances, it has been said that, prima facie, the claimant is entitled to the cost of the work carried out pursuant to that expert advice, even if, with hindsight, criticism could be made of the scheme that was put in hand. In such a case, in order for a defendant to open up the damages claim based on work actually carried out, the defendant must ordinarily demonstrate that the advice upon which the claimant relied was negligent. Such negligent advice would form an independent cause of damage which breaks the chain of causation. To cite again from Judge Newey's judgment in Great Ormond Street:
"The independent cause may take the form of an event which breaks, that is to say, brings to an end, a chain of causation from the defendant's breach of duty, so that the plaintiff cannot recover damages for any loss which he sustains after the event. The event may take the form of negligent advice upon which the plaintiff has acted. Another way of expressing the matter might be that the defendant could not reasonably have foreseen that the plaintiff would act on negligent advice. Advice which is not negligent will not by itself break the chain."
- At page 98 of the report, Judge Newey summarised his conclusions in Great Ormond Street:
"If at the date of the trial no remedial works have been carried out by the plaintiff, then the court has in order to assess damages to decide what work should be done. The parties are entitled to put forward rival schemes and the court has to choose between them or variants of them
The assessment has to be made on the basis of what the plaintiff can reasonably do.
Contrary to Mr Potter QC's submissions, in my view where works have been carried out, it is not for the court to consider de novo what should have been done and what costs should have been incurred either as a check upon the reasonableness of the plaintiff's actions or otherwise."
- There have been a number of cases since Great Ormond Street in which the relevance of the claimant's reliance on expert advice has been considered in the context of an assessment of damages. In Skandia Property UK Ltd v Thames Water Utilities Ltd [1999] BLR 338 the claimant was advised by experts that a tanking system, called a "Sika" system, was the only practical way to protect a building that had been damaged by a flood caused by the defendant. However, at the time that such advice was given and acted upon, the experts had been unaware of pressure grouting treatment which had been performed some time prior to the flood, and which meant that the flood had not in fact damaged the integrity of the building. The Sika system that was put in as part of the remedial scheme was therefore shown to be unnecessary. In assessing the damages due from the defendant, the judge refused the claim for the cost of the Sika system, despite the absence of any suggestion of negligence on the part of the experts. The Court of Appeal upheld his view. Waller LJ said:
"If there has been an escape of water that causes some physical damage then prima facie it is only the cost of reinstatement of that physical damage which is recoverable. If a plaintiff is to recover damages for something beyond the cost of reinstatement of physical damage then he must on any view show that it was reasonable to incur expenditure beyond that quantifiable figure
What should be emphasised is that it must be rare if ever that a plaintiff will be able to establish the reasonableness of any assumption of damage to something which is accessible and inspectable. Certainly, simple reliance by a plaintiff on an expert cannot be the test as to whether a plaintiff has acted reasonably in making an assumption, albeit, provided the plaintiff has provided the expert with all material facts and the expert has made all reasonable investigations, the advice will be a highly significant factor."
- Construction practitioners often refer to the proposition set out at paragraph 795 above as 'the Great Ormond Street principle', and it is referred to in two footnotes in the Eighth Edition of Keating on Construction Contracts (2006), and in the text of the Fifth Edition of Jackson and Powell on Professional Negligence at paragraph 8-295. It is not, however, referred to in the latest Editions of either McGregor on Damages or Chitty on Contracts, and it was not apparently cited to the Court of Appeal in Skandia, where it might be thought to have been of direct relevance. The extent to which it lays down any sort of general principle on the recoverability of damages is, therefore, possibly open to debate.
K1.5 Broader Considerations
- In making their submissions, the parties referred me to a number of other cases concerned with the assessment of loss. Many of these were concerned with the inter-relationship between duty, causation and remoteness. In this regard I was referred to the observation of Denning LJ, as he then was, in Roe v Minister of Health [1954] 2 QB 66 CA at 85:
"The three questions, duty, causation and remoteness run continually into one another. It seems to me that they are simply three different ways of looking at one and the same problem ... instead of asking three questions, I should have thought that in many cases it would be simpler and better to ask the one question: is the consequence within the risk? And to answer it by applying ordinary plain common sense ..."
- A similar point was made in Rahman v Arearose Ltd [2001] QB 351. Although that was a case concerned with contribution, and claims in tort, there are some helpful general statements of principle in the judgment of Laws LJ. In particular, at paragraph 33, he said:
"So in all these cases the real question is, what is the damage for which the defendant under consideration should be held responsible. The nature of his duty (here, the common law duty of care) is relevant; causation, certainly, will be relevant but it will fall to be viewed, and in truth can only be understood, in light of the answer to the question: from what kind of harm was it the defendant's duty to guard the claimant? ..."
K2 The Issues In The Present Case
- The following issues arise in the present case in respect of causation/forseeability/measure of loss:
a) Is the Claimant entitled to damages against each Defendant measured by reference to either the costs of demolition and rebuilding or the costs of repair, as opposed to damages measured by reference to diminution in value? (Section K3 below).
b) Is the Claimant entitled to damages against each Defendant based on the costs of demolition and rebuilding, as opposed to the costs of repair, as a result of the decision in Great Ormond Street? (Section K4 below).
c) What is the right measure of loss in the present case? (Section K5 below).
I address each of those issues below.
K3 Rebuild/Repair or Diminution in Value?
- On behalf of Mr McGlinn, Mr Williamson QC and Mr Selby submit that, by reference to the general principles set out at Section K1.1 above, the Claimant is entitled to the cost of making good such defects as are established. They maintain that the Claimant's primary claim, for the costs of demolition and rebuilding, and the secondary claim, for the costs of repair, are no different in principle: they are both reinstatement claims. I respectfully agree with that submission: the difference between the demolition/rebuilding option and the repairing option is simply a matter of degree; there is no difference in principle between the Claimant's primary and the secondary case.
- It is for that reason that I reject the submission put forward by Mr Bartlett QC and Mr Hamilton that, because Maison d'Or has been demolished and so will never be repaired, the assessment of damages by reference to the cost of repair is inappropriate. It seems to me that it is not: the cost of repair represents a valid way of arriving at an assessment of the Claimant's loss if, for whatever reason, I conclude that the primary case fails and the costs of demolition and rebuilding are not recoverable. For the same reason, I reject the submission by HTA that, in the absence of any evidence as to diminution in value, no damages should be awarded at all. No party proffered any evidence as to diminution in value, and it was not even suggested as a possibility at the CMCs or the PTR. This is unquestionably a case in which the correct measure of loss is reinstatement: the critical issue is whether those reinstatement costs should be calculated by reference to the costs of demolition or rebuilding (Mr McGlinn's case) or the costs of repair (the Defendants' case). It is to that issue that I now turn.
K4 Is the Claimant entitled to damages against each Defendant based on the costs of demolition and rebuilding, as opposed to the costs of repair, because of the decision in Great Ormond Street?
(a) Introduction
- On behalf of the Claimant, Mr Williamson QC and Mr Selby, submitted as follows:
- The decision to demolish Maison d'Or was taken on expert advice;
- It is not suggested that that expert advice was negligent;
- Accordingly, the Claimant is entitled to the costs, or a proportion of the costs, of demolition and rebuilding as against each of the Defendants in accordance with the principle in Great Ormond Street.
They say that this most follow, regardless of what defects each Defendant might be liable for, and therefore regardless of whether a particular Defendant could be said to be responsible even in part for the underlying defects which triggered the decision to demolish and rebuild.
- On behalf of HTA, Mr Bartlett QC and Mr Hamilton, supported by DJH and WL, submitted that:
- The decision in Great Ormond Street can be distinguished;
- Great Ormond Street is not authority for the wide proposition that the existence of expert advice to demolish and rebuild automatically means that, without more, the Defendants are liable for the costs of such work, and that all other considerations are essentially rendered irrelevant;
- The only appropriate principle is the one outlined in the authorities cited above, namely that each Defendant should only be liable for the damage for which that Defendant is responsible, and that the over-riding test is one of reasonableness;
- In any event, should it be necessary to decide the point, Great Ormond Street was wrongly decided.
- Accordingly, it is submitted on behalf of HTA that, in this case, damages in respect of each Defendant should be measured by reference to the cost of reinstating those individual defects for which each Defendant is found to be liable, together with appropriate additions for on-costs and the like, but not for the (greater) costs of demolition and rebuilding.
- I have concluded that the principal arguments put forward by Mr Bartlett QC and Mr Hamilton, in which they were supported by Mr Whitting for DJH and Mr Reese QC and Mr Warnock for WL, are to be preferred. There are many separate reasons for this conclusion. I outline each of them below.
(b) Can Great Ormond Street be distinguished?
- In my judgment, the decision in Great Ormond Street can be distinguished from the present case in a variety of significant ways. That was a case where the engineer's modifications to the piling design of the new wing of the hospital were negligent and resulted in the construction of inadequate foundations. Both sides agreed that remedial work was necessary as a result of that default; the real issue was whether the Defendant could criticise the particular remedial scheme that had been carried out on expert advice. In that sense, at least, it was a relatively straight-forward case. Here, there were a number of significant factors lying behind the decision to demolish which were not directly connected to the breaches of contract on the part of the Defendants (whether as alleged by the Claimant or as found by the court in the preceding Sections of this Judgment).
i) Mr McGlinn's Residual Dissatisfaction with Maison d'Or
- It is clear from the evidence that, even leaving aside the alleged defects, Mr McGlinn was always dissatisfied with Maison d'Or. That was manifest in the changes that he made throughout the works, and the changes that he indicated that he wanted to make after Waltham left site. These included his desire for all the windows to be redesigned and replaced (paragraph 118 above); the changes proposed on his behalf by Mr Sey as soon as the decision to demolish was announced (paragraph 144 above); and the changes which E. C. Harris believed him to have stipulated, for the new house to have "contemporary finishes
stainless steel and glass" (paragraph 145 above). That was very different to the architectural concept of Maison d'Or.
- In other words, whilst in Great Ormond Street the remedial works were only carried out because of the existence of defects, the same cannot be said of the decision to demolish and rebuild Maison d'Or.
ii) Mr McGlinn's Instructions re: Remedial Work
- There were a number of independent pieces of evidence which demonstrated that, in the crucial period between 2003 and 2004, the starting position for Mr McGlinn and/or his advisers was the demolition/rebuilding option, not repair. I have referred at paragraph 118 above to the minutes of the meeting on 22 July 2003 which, in my judgment, can only be read in that way. I have also referred at paragraph 127 above to the minutes of the meeting on 2 October 2003, and the express emphasis there on "the more onerous remedial option". And I have referred at paragraph 129 above to the minutes of the meeting on 4 November 2003 and the reference to the under floor heating which, again, can only be read on the basis that replacement, rather than repair, was the starting-point for the consideration of the appropriate remedial scheme. Furthermore, at paragraph 126 above, I have found that it is impossible to reconcile the destructive way in which the opening up work was carried out with any real desire on Mr McGlinn's part to repair the house.
- There was important evidence that this uncompromising approach emanated, perhaps unsurprisingly, from Mr McGlinn himself, rather than his advisors. During the cross-examination of Mr Sugg of E. C Harris, there was this exchange:
"Q: Mr Sugg, the rebuild option was a natural development from the instructions you had received. I will explain what I mean by that. Before this date, Mr McGlinn had made it clear that he did not want piecemeal repairs: what he made clear was that where a building element was defective or was not what he wanted, he wanted a full replacement of it, not a repair, and that was made known to the team; do you agree?
A: I think that is a fair assessment."
It seems to me that, with those instructions as the starting-point, and in the light of the scale of damage caused during the opening up works themselves, it was entirely unsurprising that, ultimately, those advising Mr McGlinn came down against piecemeal repairs and in favour of "a full replacement". This is a strand in the story of the demolition the particular view and approach of the employer which did not arise in Great Ormond Street.
iii) The Nature of the Defects
- The defects at Maison d'Or, as recorded in the Charter documents, affected all of the main elements of the house: the floors, the walls and the roof. But many, indeed most, of these criticisms could fairly be described as aesthetic; unlike Great Ormond Street, most were unconnected with the structural soundness of the building itself. Indeed, that is another curious feature of this case. There is no part of Maison d'Or itself which, even on the Claimant's case, could have been described as structurally unsound, or dangerous, with the possible exception of the wall tie allegation of Item 1.1.5, which does not affect any of these three Defendants. Indeed, it is unclear whether any part of the house would have failed the test of fitness for human habitation promulgated by The Defective Premises Act 1972. Further, even those criticisms which are more than aesthetic, such as the case that the roof tiles were inadequate, are not clearly linked to any damage; as I have previously pointed out, there were no discernable leaks through the roof slates at all.
- In my judgment, this is a very important feature of this case. It is, on any view an extreme course: to knock down a newly completed building because it is said to be defective, particularly where the majority of the defects can fairly be described as aesthetic matters only. Even Mr Sugg said in evidence: "I was shocked at the decision". If such a course of action is to be justified at all, it will ordinarily be because the building is dangerous or structurally unsound. That was simply not the case here. Thus, I consider that Maison d'Or was demolished because of what might be described as ordinary building defects, many of which are entirely explicable on the simple basis that, as Mr Salisbury put it, "the building was not finished". It is therefore difficult not to share Mr Salisbury's view (if not his rather colourful language) that, from a commonsense perspective, the demolition should not have happened. The absence of real structural concerns about the property makes it a very different sort of case to Great Ormond Street, which was concerned with structural defects in the foundations of a hospital wing.
- Thirdly on this point, I should say that the absence of any compelling case for demolition was reflected in both the uncertainties surrounding the decision to demolish itself (paragraphs 138-143 above), and Mr McGlinn's own evidence. At one point, in a rather dismissive passage of his cross-examination, he poured scorn on Maison d'Or, referred to its unsatisfactory condition, and described it as "unsafe". At another point, he said that "the place was falling down". In truth, both of these statements grossly exaggerated the problems at the property, and were not reflected in his own experts' reports. I regarded these answers as indicative of Mr McGlinn's awareness that he had, for the most part, required the demolition of the building because of an accumulation of aesthetic complaints, rather than anything more significant, and he perhaps felt the need to exaggerate those complaints at least in his own mind - in order to justify that decision.
(iv) Other Miscellaneous Differences
- There are other miscellaneous differences between this case and Great Ormond Street which I also consider to be of relevance. First, there is the fact that the overall advice as to demolition was plainly dependent on the comparative costs: see paragraphs 134-136 above. This dependency could fairly be read as qualifying the advice to demolish, making the advice as to the defects and the appropriate remedial scheme entirely subject to questions of cost, which was a wholly separate matter. Again, no such qualification arose in Great Ormond Street.
- Moreover, I am troubled about this cost advice in any event. There can be no doubt that, within the costs advice with which Mr McGlinn was provided, there was a relatively modest differential between the costs of demolition and rebuilding on the one hand, and the cost of repair on the other. That was a relevant matter in any consideration of which remedial scheme to adopt. But it seems to me that commonsense dictates that demolition and rebuilding will always be an option which should only be considered as a last resort. That is because, when an owner demolishes and rebuilds, he is inevitably doing away with a large amount of perfectly satisfactory work. I have already made the point that the building was structurally sound. Therefore, even if the quantum of the figures was reasonably comparable, there was a clear risk that, by demolishing something that was sound and starting again, the rebuild option might well turn out to be more expensive (as well as being more destructive) than had originally been envisaged. Demolition and rebuilding the house involved so much more physical work than the repair option that it inevitably carried with it a greater risk that the costs might increase. Despite that, Mr McGlinn made clear in his cross-examination that he was not told of this financial risk; he said that he was told that "the risk side was the repair".
- It should also be noted that the (largely agreed) figures for the repair cost are now far less than was recorded in the advice provided to Mr McGlinn at the time that the decision was taken. Then, the advice was the demolition/rebuilding costs were only slightly more than the repair cost; now that most of the figures for the repair of the individual items have been agreed, the differential is in excess of £1 million. Thus, in support of his case as to demolition/rebuild, the Claimant is obliged to rely on cost advice which has not only been demonstrated to be quite wrong, but might be said to have been based on a risk assumption that was, to put it neutrally, open to considerable debate.
- This leads me onto another unsatisfactory element of the Claimant's 'advice' case. Mr Jowett was Mr McGlinn's architectural expert and was involved at the time of the decision to demolish. However Mr Jowett made it plain to me that he was not asked about and did not advise Mr McGlinn to demolish Maison d'Or. The relevant part of his evidence came after I considered that Mr Jowett was not answering this particular question being put by Mr Bartlett QC:
"Judge Coulson: Yes. Well, I think the question really is, as was put to you: was the decision to demolish taken in the absence of any specific advice from you on this scheme, on this project?
A: I am not clear what you mean by "specific advice" in relation ...
Judge Coulson: Well, this property: somebody decided to demolish this property.
A: Yes.
Judge Coulson: Did you advise somebody to demolish this property?
A: No".
- Further, although Mr Fitch was Mr McGlinn's expert quantity surveyor, it was not Mr Fitch who advised Mr McGlinn that the cost differential between repair on the one hand and demolition/rebuild on the other was so small that demolition/rebuild was justified. Thus, the advice that Mr McGlinn allegedly acted upon came, apparently, from the Charter witnesses, who were not called as experts to give evidence as to their opinion, but simply as to matters of fact; and Mr Sugg of E C Harris, who was in a similar position. Therefore, rather unusually, the two principal elements of the advice (defects and quantum) that were said to have underpinned the recommendation to demolish were not the subject of evidence from the Claimant's experts.
(v) The Cumulative Nature of the Claim
- In my judgment, the biggest and most significant difference between the decision in Great Ormond Street and the present case concerns the existence here of a large number of separate items or claims against four different Defendants, one of whom was not present at the trial. That is obviously very different to the situation in Great Ormond Street where there was one Defendant, effectively meeting one principal allegation, namely whether or not the design of the foundations was negligent.
- In my judgment this is an extremely important difference. I deal in greater detail in Section K4 below with some of the points that arise from it but, for present purposes, it is sufficient simply to note that, whilst in Great Ormond Street the damages argument could be confined to the appropriate remedial work to rectify one defect, in the present case the advice to demolish and rebuild was based on the cumulative effect of a whole series of unconnected Items. Some of those Items I have found were not defects at all; others were not claimed against these three Defendants, so have not featured in the trial; and many others I have rejected as being the liability of these Defendants in any event. In the absence of advice that item x, item y, or even items x, y and z were, on their own, sufficient to justify demolition and rebuilding, the Claimant's case on this aspect of the claim had all the usual problems inherent in a cumulative exercise that essentially relied upon/assumed complete success on a large number of contentious items. Remove one significant item from the equation (because, say, it was not a defect at all) and where did that leave the advice to demolish and rebuild? Failure on one or more significant Item in the Scott Schedule would not, of itself, make the advice to demolish/rebuild negligent, but it would fundamentally weaken its causative effect and evidential value. As I have said, that was not a problem in Great Ormond Street but it is a very real difficulty here.
vi) The Reinstatement Has Not Been Carried Out
- I also consider that it is not correct to say, as the Claimant does, that because he has allowed Maison d'Or to be demolished, his claim for demolition and rebuilding costs is in the same category as the remedial work scheme that found favour with Judge Newey in Great Ormond Street. In Great Ormond Street, the remedial scheme which formed the basis of the claimant's claim for damages had already been carried out in full. In the present case, Mr McGlinn has allowed the relatively inexpensive demolition works to go ahead but, although that work was finished nearly two years ago, no rebuilding of the property has been commenced; indeed, there appears to be no sign that it is even imminent.
- This point was pursued with Mr McGlinn in cross-examination:
"Q: The house has not been rebuilt has it?
A: No.
Q: So it does not need to have been demolished yet, does it?
A: Yes.
Q: Why do you need to have demolished it already?
A: Because I was about to rebuild and then I decided I had had enough and have put it on hold.
Q: You had absolutely no reason to demolish it at the particular time you did, did you?
A: Well if it was going to be demolished, it should have been demolished.
Q: If you are not going to get on with the rebuilding, you might as well have left it standing so it could have been available for the court proceedings.
A: I was going to rebuild it but I put it on hold. It was my choice."
To the extent that it is important, I do not accept Mr McGlinn's statement that he was "about to rebuild". If rebuilding had been imminent, there would be detailed drawings, plans and possibly even a proposed building contract in the papers available at trial. There are none of those things. Accordingly, there is force in the point that the demolition was, objectively, unnecessary, and has simply had a detrimental effect on the case as a whole.
- Of course, this means that, aside from the actual demolition, the rebuilding scheme is notional. It is therefore similar to the repair scheme, in the sense that neither have actually been carried out. The fact that the building was demolished and thereafter nothing further was done does not, in my judgment, put Mr McGlinn in precisely the same position as the hospital in Great Ormond Street. He might (indeed, on the evidence, he is likely to) build a rather different house in place of Maison d'Or.
vii) Summary
- For the reasons set out in paragraphs 808-825 above, I have concluded that the decision in Great Ormond Street is distinguishable in material respects from the present case, and I am not bound to follow it. For the reasons set out in Sections K4 and K5 below, I consider that, on the facts of this case, the appropriate measure of loss is the (largely agreed) cost of the repair work necessitated by the individual Items in the Scott Schedule for which HTA and DJH are liable.
c) Is the Claimant entitled to the costs (or a part of the costs) of demolition and rebuilding against the Defendants, regardless of what defects (if any) each Defendant might be liable for?
- Now let us assume that I am wrong to distinguish Great Ormond Street on the facts, and/or that I am bound by whatever principle it is said that Judge Newey QC articulated in his judgment in that case. It might well be said that his decision is authority for the relatively narrow proposition that, if two remedial schemes are proposed to rectify a defect which is the result of a defendant's default, and one scheme is put in hand on expert advice, the defendant is liable for the costs of that built scheme, unless it could be said that the expert advice was negligent. For what it is worth, I consider that, subject to one potentially vital qualification, set out below, this narrow proposition is generally in accordance with other authority and correct in law. On that basis, therefore, I reject the submission made by HTA that the judgment in Great Ormond Street was wrong and should not be followed. The important qualification that needs to be made is that outlined by Waller LJ in Skandia to this effect: although reliance on an expert will always be a highly significant factor in any assessment of loss and damage, it will not on its own be enough, in every case, to prove that the claimant has acted reasonably. Moreover, in Skandia, Waller LJ made clear that to put in issue the reasonableness of a decision based on expert advice "does not require proof of conduct amounting to professional negligence or something of that sort." That seems to me, with respect, to be entirely right and, for a variety of reasons, directly apposite in the present case (see, for example, the point about the cumulative nature of the Claimant's position, towards the end of paragraph 822 above).
- In truth, I do not consider that the narrow proposition set out above, even with the qualification to which I have referred, is of any direct assistance to the Claimant in the present case. Instead, Mr Williamson QC and Mr Selby are obliged to advance a much wider proposition on his behalf, to the effect that, on the basis of Great Ormond Street, Mr McGlinn's reliance upon the advice from Charter in July 2004 was, on its own, enough to mean that the court must take the demolition and rebuilding costs as the measure of his loss in the present case, regardless of whether the Items in the Scott Schedule are proved to be defects or not, and regardless of each Defendant's actual liability for the individual Items alleged against them in that Schedule. In his oral closing, Mr Williamson QC properly accepted that this wide proposition was nowhere expressly articulated by Judge Newey, but he submitted that it followed logically from the judgment in Great Ormond Street. Mr Bartlett QC and Mr Hamilton disagreed completely and, as previously noted, were joined in that submission by the other two Defendants.
- I have concluded that Great Ormond Street is not authority for the wide proposition advanced on behalf of the Claimant in the present case; indeed, I consider that the Claimant's proposition is contrary to Judge Newey's own reasoning, and offends against practicality and common sense. It accords far too much legal significance to the fact that an expert has given prior advice, and falls into the trap, identified in Skandia, of equating reasonableness with mere reliance on an expert. In my view, in the present case, it would lead to a fundamentally unreasonable result. I set out my reasons for those conclusions below.
i) Foreseeability/Causation
- The decision in Great Ormond Street was based upon notions of foreseeability and causation. But in the present case, the Claimant's claim based on the cost of demolition and rebuilding takes no account of the Defendants' (different) liabilities for the Items which are said to justify such a drastic decision, whether as alleged by Mr McGlinn in the Scott Schedule or perhaps more importantly - as found by the court in the earlier parts of this Judgment. Thus, on the Claimant's case, DJH, as the engineers, are liable for the costs (or an allocation of them) of demolition and rebuilding, even though the evidence made clear that the reasons for demolition and rebuilding were nothing to do with any defects in either the M&E services, or the structural aspects of the building. That is not it cannot be a reasonably foreseeable consequence of DJH's original breach. This, so it seems to me, is an overarching reason why the demolition/rebuild option is an inappropriate measure of loss in this case: it is simply unforeseeable.
- Indeed, the particular position of DJH makes this point starkly. The experts have agreed that the liability of DJH for the basic costs of repair can be measured in the maximum sum (assuming full liability for everything, which is not the case) of £190,296. That figure is calculated by reference to the individual Items within the Scott Schedule alleged against DJH, and the cost of repairing each of them. To that base cost must be added an amount for preliminaries, fees and so on, which, on the Claimant's case, might as much as double the final figure to, say, £380,000. However, that is to be compared with the primary pleaded claim against DJH, which is in the sum of over £1 million (see A2/484), and which is said to be 25% of the total cost of demolition and rebuilding. The 25% appears to be an arbitrary apportionment percentage advanced by the Claimant in its pleading, although it was not identified in the evidence, and did not feature in the Claimant's closing submissions. The vast difference between these two figures is an eloquent demonstration of how and why the Claimant's development of the Great Ormond Street principle is inappropriate in the present case: it leads to an unforeseeable and unreasonable result.
- Even in respect of HTA, who are liable for more Items in the Scott Schedule, the same reasoning applies. Assume, in the Claimant's favour, that the eight defects in Category 1.1 of the Scott Schedule justified the demolition of the external walls. Four of those defects (Items 1.1.5 1.1.8), including important allegations concerning wall ties and the like, were never made against HTA. Already, therefore, it would be difficult to justify demolition (even of the external walls alone) as against HTA in circumstances where it was never part of Mr McGlinn's case that HTA were liable for some of the significant defects in those walls that resulted in the advice to demolish. Furthermore, even in respect of the four Category 1.1 Items which are alleged against HTA, I have found that HTA are not liable for three out of four of them. On that basis it is impossible to say that HTA should reasonably have foreseen that their liability for one relatively minor Item in Category 1.1 (Item 1.1.1, which was concerned solely with copings) would render them liable for the cost of the complete demolition and rebuilding of those walls.
- Taken to its logical conclusion, the Claimant's argument would render a defendant liable for the costs of demolition and rebuilding (or at least some sort of arbitrary allocation of such costs) if there were 100 alleged defects which cumulatively gave rise to the advice to demolish and rebuild; where the defendant is only liable in law for just one such item; and where the other 99 were demonstrated either not to be defects at all, or at least not the responsibility of that defendant. Again, such a situation would simply not be foreseeable. The defendant's one default has not caused the demolition and rebuilding, so that cannot be the appropriate measure of loss.
- This problem is an issue of causation/foreseeability which the Claimant's dogged reliance on what it is said can be derived from Great Ormond Street simply does not address. In fact, I consider that Judge Newey had this sort of point very much in mind. In his judgment he said:
"However reasonably the plaintiff acts, he can only recover in respect of loss actually caused by the defendant. If, therefore, part of a plaintiff's claim does not arise out of the defendant's wrong doing, but is due to some independent cause, the plaintiff cannot recover in respect of that part; Liesbosch Dredger v Edison [1933] AC 449 and Compania Financiera Soleada SA v Hamoor Tanker Corp Inc, The Borag [1981] 1 All ER 856 CA."
In other words, translating that principle to the present case, Mr McGlinn may have acted reasonably in deciding to demolish the house, because of the advice he received as to the cumulative effect of all the defects, but he cannot recover the costs of demolition as damages against a particular Defendant in circumstances where only a handful of those defects are the responsibility of that Defendant.
(ii) Practicalities and Common Sense
- For the avoidance of doubt, I also consider that the Claimant's claim for the costs of demolition and rebuilding against these individual Defendants, or even an allocation of such costs to each Defendant on an arbitrary basis, is contrary to practicalities and common sense. In expanding this conclusion, I contrast the claim for the costs of demolition and rebuilding on the one hand, with the claim for the costs of repair on the other.
- The claims in respect of the cost of repair of each Lead Item are very largely agreed. They have been the subject of careful consideration and discussions between the experts. Detailed remedial solutions have been agreed by the technical experts which have then been costed by the quantity surveying experts. Accordingly, by reference to those individual Items in the Scott Schedule for which I have found HTA and DJH liable, I can, at least in most cases, utilise a figure which the respective parties' experts have agreed.
- That is to be contrasted with the claim in relation to the costs of demolition and repair. Those figures have never been the subject of a detailed CPR 35.12 statement. More importantly, this method of assessing loss has not provided a figure for each Item in the Scott Schedule. Instead, the Claimant has taken the total figure for demolition and repair and, in his pleadings, then allocated this on a 75%/25% split as between HTA and DJH. It appears that this allocation was based on nothing more scientific than the split between them of the total value of the Items for which they were originally said to be liable.
- In their closing submissions, Mr Williamson QC and Mr Selby submit that the allocation exercise is an important part of the assessment of damages but, beyond saying that "it is not easy", they offered no guidance at all to the court as to how that exercise should be carried out. They put forward no percentages, and made no submissions as to what sort of percentage allocation might be attempted or justified. If I may say so, that was an unscientific approach to the assessment of damages after a 23 day trial. The contrast with the detailed and agreed figures for the cost of repair of each Item in the Schedule could not be more marked. It is for that reason that I consider, in this case, that the wide proposition relied on by the Claimant ignores the practicalities of assessing damages in a case of this sort, and is contrary to common sense.
- When considering this issue, I have been drawn inexorably to the comparison between, on the one hand, a contractor's 'global' claim for loss and expense due to delay, and, on the other, a carefully broken-down claim, with individual sums ascribed to particular causes of delay, which have subsequently been largely agreed. In such circumstances, no judge or arbitrator would use the global claim to allocate (imperfectly) sums to any of the delay events, when there was already in existence an agreed figure for the cost consequences of that specific event. In reality, in the present case, the Claimant offers the court a global claim and the suggestion of allocation, and an alternative claim which has been carefully broken down and agreed. I can identify no part of Great Ormond Street (or any other authority) which would oblige the court to measure the loss here by reference to the global claim.
(iii) Reasonableness
- As I have pointed out above, the recent authorities make plain that the court must award damages which are reasonable and objectively fair as between the claimants and the defendants (see paragraph 32 of the judgment of Clarke LJ in The Maersk Colombo). In my judgment it would be unreasonable to award against HTA and DJH an arbitrary allocation of the costs of demolition and rebuilding instead of the agreed figures for the cost of repair.
- In reaching that conclusion I have had regard to all the matters set out at paragraphs 808-825 above, and all the points of comparison between the two approaches outlined at paragraphs 830-839 above. I have also taken heed of the warning in Skandia, and treated the expert advice as a factor, but not the only factor, relevant to the issue of reasonableness. I conclude that it would be unreasonable to measure the Claimant's loss in this case by reference to anything other than the (agreed) costs of repair.
(iv) Costs of Demolition
- During the course of his submissions, Mr Williamson QC made the point that, if the court opted for the cost of repair, Mr McGlinn would be unable to recover against these Defendants the £250,000 odd that he has already spent on demolition. It is certainly right that would be one of the consequences of my decision not to base the assessment of loss on the costs of demolition and repair. But I am not persuaded that this gives rise to an unjust or unreasonable result. I have very much in mind the fact that the vast majority of the Items in the Scott Schedule were alleged against Waltham, and many were apparently admitted. I have no doubt that, had they played a full part in this trial, Waltham would almost certainly have been liable for many more individual Items than HTA and DJH put together.
- In those circumstances, it might have been the case that, in contrast to his position in relation to HTA and DJH, the Claimant would have had a stronger argument that the right measure of loss as against Waltham was indeed the cost of demolition and rebuilding: at the very least, different considerations might have applied to the position of Waltham, as compared to the other two Defendants. Therefore, it may be said with some justice that Mr McGlinn's inability to recover that £250,000 odd is largely the consequence of Waltham's financial demise, and subsequent absence from the trial as an active Defendant. That, of course, cannot be the responsibility of the other Defendants. Furthermore, I note that, since practical completion was never certified, Mr McGlinn retained the sum of £127,267 as against Waltham (see the figures set out in Interim Certificate 30, dated 27.12.01). In the round, it might be said that that sum (which would otherwise have been payable to Waltham on completion of the works) amounted to their contribution to the costs of demolition.
(v) Summary
- I consider that the question that I have to decide is 'what is the damage for which each of these two Defendants should be held responsible' (see Laws LJ in Rahman). For all the reasons set out above, neither of these two Defendants could be said to be responsible (either in fact or in law) for the costs of demolishing and rebuilding Maison d'Or.
K5 What is the Right Measure of Loss?
- For all the reasons set out above, the right measure of loss in this case is the agreed cost of the work necessary to repair the defects for which each Defendant is liable. That is the basis on which the liability experts have worked in agreeing remedial schemes for individual Items in the Scott Schedule, and it is the basis on which the quantum experts have been able to agree the figures. In my judgment, it is the most reliable method of arriving at a fair and reasonable figure for each Item in the Scott Schedule for which I have found each of the Defendants liable. It is in accordance with the general principles set out in Section K1 above.
- Not Used.
- Not Used.
- Further, for the reasons set out above, and for the avoidance of doubt, I find that the cost of remedial work is the reasonable measure of loss in all the circumstances. I consider that, for the reasons given above, it would be unreasonable to assess the damages due to Mr McGlinn by reference to any other methodology.
L THE ASSESSMENT OF DAMAGES AGAINST HTA
L1 Introduction
- For the reasons set out in Section K above, I have concluded that the appropriate measure of loss in this case is by reference to the (largely agreed) costs of repair. There are, however, a number of other major disputes as to the assessment of damages. Accordingly I deal with those issues following the methodology set out below:
a) I identify a figure for each of the Items claimed against HTA for which I have found HTA liable (see Section L2 below);
b) I address the correct date of assessment of those costs in Section L3 below;
c) I assess the proper calculation of preliminaries/on-costs to be added to the costs of repair in Section L4 below;
d) I deal with the issues as to contingency, namely, whether or not a sum should be awarded for contingency and, if so, how it should be calculated, in Section L5 below;
e) I assess the sums due by way of professional fees on the costs of repair in Section L6 below;
f) I assess the costs recoverable from HTA in relation to the enabling works, including the professional fees spent in relation to those works, in Section L7 below;
g) I deal with the claim for storage charges in Section L9 below;
h) I summarise the damages payable by HTA to Mr McGlinn in Section L10 below.
L2 The Individual Items
L2.1 General Disputes as to Rates, etc
- There are disputes as to rates and the like between Mr Linnett and Mr Fitch. Thankfully, these disputes are not significant. At paragraph 591 of HTA's closing submissions, Mr Bartlett QC and Mr Hamilton confine themselves to the contention that, where there is a difference, Mr Linnett's figures are more likely to be reliable "for obvious reasons". The Claimant's closing submissions, at paragraphs 752-755, provide a little more detail as to why it is said on behalf of Mr McGlinn that Mr Fitch's approach on rates was the right one. I have concluded that, on this point, the Claimant's submissions are to be preferred.
- First, I agree that, although Mr Fitch was cross-examined on the basis that he had omitted various build-ups from his report, he had, in fact, provided sufficient material to support the rates in question. Secondly, as to the appropriate labour rate (which formed the bulk of the cross-examination), I accept Mr Fitch's explanation of the reasonableness of the labour rate that he used. I note that that rate was broadly accepted by Mr Pontin and Mr Pope, the quantum experts acting for DJH and WL. Moreover, I agree that much of the cross-examination of Mr Fitch in relation to rates was, in truth, a challenge to the appropriate workscope in respect of a particular item. That, of course, was not a matter for Mr Fitch at all.
L2.2 Assessment
- I now turn to assess the value of each of the individual items for which I have found HTA liable, as summarised at paragraph 679 above.
Item 1.1.1
- There was no pleaded figure in relation to this individual Item. As a result of my repeated requests for such information, as part of their closing submissions, Mr Williamson QC and Mr Selby produced Appendix 2, which purported to provide a figure for each Item in the Scott Schedule. In some respects this exercise might be regarded as unfair, since it contained specific figures which had not been separately identified before. However, in relation to a number of the Items for which I have found HTA liable, it was clear to me that Appendix 2 was expressly based upon the existing break-downs provided by Mr Fitch as part of his expert's report, with suitable deductions to reflect elements of work that were not relevant to the particular Scott Schedule Item in question. In other words, the material in Appendix 2 was already in the evidence; it was just being used in a new way. Item 1.1.1 was a good example of this. I am satisfied that the figure in Appendix 2 of £8,872 for Item 1.1.1 was a proper extrapolation of the relevant figures, which can all be found in Mr Fitch's build-up under Item 1.2.3. From this falls to be deducted the agreed sum of £5,145.46, in order to avoid double recovery under Item 4.1.3, for which I have also found HTA liable. Accordingly, I find the (now agreed) sum of £3,726.44 is due in respect of Item 1.1.1.
Items 1.2.3 and 1.2.5
- In many ways the damages due in consequence of Item 1.2.3 (which for this purpose also includes Item 1.2.5) have been the most problematic to quantify, for the reasons explained in Section F2.8 above. I refer in particular to paragraphs 378-382 above, which explain how and why I have found that this defect, although a breach of contract on the part of HTA, did not and could not warrant the complete demolition and rebuilding of the external walls. How then are the damages for this Item to be assessed? In my judgment, I have to arrive at a fair figure on the basis of the evidence, bearing in mind Lord Mustill's comment in Ruxley that "judges are well accustomed to putting figures to intangibles, and I see no reason why the imprecision of the exercise should be a barrier, if that is what fairness demands." On the basis of Mr Fitch's break-down sheet at D5/1228, I have concluded that the right course for me to take is to allow just those items which are concerned with the provision of new lintels, cills, quoins and other stone banding, namely J/11, J/12, J/13, J/14, J/15 and AG/7, making a total of £44,556. To that I add an allowance for demolition/removal of the existing lintels and banding, in the sum of £5,000, making a total of £49,556. To that I add the agreed Jersey uplift of £8,465.64, and deduct the agreed differential between the cost of granite and reconstituted stone of £29,010.82. This produces a (now agreed) sum for this Item of £29,010.82. I regard that as the appropriate damages figure for Item 1.2.3 (including Item 1.2.5) and the fact that it works out at about 25% of the total figure originally claimed for this Item only serves to confirm my view that, in the round, it is a fair and reasonable assessment of the appropriate damages due.
Item 1.3.1
- This is agreed in the sum of £5,200.
Item 2.1.3
- This is not an Item for which there was a separate figure until the provision of Appendix 2 with the Claimant's closing submissions. Again, however, I am satisfied that the figure set out there of £1,063 is properly abstracted from Mr Fitch's breakdown at Item 2.1.3. Accordingly, I consider that in the circumstances the claim for £1,063 has been made out.
Item 2.2.1
- The only relevant liability is in respect of the two windows with the shakes. As noted in paragraph 457 above, there is no precise figure put forward for this limited claim. However, Mr Fitch's break-down sheets indicate a unit cost of £650 for a new window (see, for example, D5/1233). Thus I assess this Item in the sum of £1,300. Adding the agreed amount for the Jersey uplift, I get the (now agreed) figure of £1,547.
Item 4.1.3
858. Mr Fitch's figure for this Item was £65,764. Mr Linnett's figure was £52,449. For the reasons set out above, I prefer Mr Fitch's approach to the figures. Accordingly, the right starting point for the quantification of this Item is £65,764. From that falls to be deducted a figure of £2,911 to reflect the fact that some of the tiles could have been re-used. This deduction was calculated in a separate document provided by the Claimant following the hearing on 8 February 2007, which calculation I accept. HTA sought to argue for a larger reduction to reflect the likely re-use of the slates, but I have concluded that only the bulk tiles could have been reused, not the specially cut tiles used at hips, ridges and valleys. In addition, I have concluded that only about 25% of the tiles would have been capable of re-use following the stripping of the roof, and that there would have been an additional labour cost, calculated by Mr Fitch at £10.75 per square metre, associated with the sorting through of the slates to work out which could be re-used. That rate is in line with other rates calculated by Mr Fitch, which I have accepted. The final figure for this Item was therefore £62,853.
Item 5.1.1
- Mr Fitch's figure was £142,792. Mr Linnett's figure was £111,507. I have already explained that I prefer Mr Fitch's approach. However, a deduction from Mr Fitch's figure is necessary to reflect the point in paragraph 539 above, that there were no defects in the joinery in the wine cellars. That specific part of the claim was valued in the sum of £12,000. Accordingly, the starting point for the assessment of this Item is £142,792 less £12,000, a total of £130,792. From this sum falls to be deducted the agreed figure of £2,280 to allow for the Jersey uplift on the wine cellar element; £853.53, being the agreed deduction for dado and skirting; and £3,750 and £1,547 which are deductions referable to various elements of joinery in Bedroom 4, where I have concluded that there were no defects and therefore no recoverable damages. That makes a total for this Item of £122,541.47.
Item 5.1.2
- This was not costed separately by the Claimant, and Appendix 2 to the closing submissions produced on his behalf makes plain that this was included within the valuation of Item 5.1.1. Therefore no separate sum falls to be assessed in respect of this Item.
Items 5.3.2/S3
- This is agreed in the sum of £1,580.
Item 5.4.2
- This is covered by Item 5.4.3 below and no separate sum is due.
Item 5.4.3
- This was agreed in the sum of £36,810. That is therefore the amount that I award.
Item 5.4.4
- This is also included within Item 5.4.3 above.
Item 6.1.1
- This is agreed in the sum of £595. That is therefore the amount that I award.
Item 6.2.1
- The quantum for Item 6.2.2 is £4,170. It appears that the remedial work envisaged in relation to Item 6.2.2 (which is an Item for which I have found HTA not liable) would, in any event, have been necessitated to remedy Item 6.2.1, for which I have found HTA liable. Thus, the correct quantum for this Item is the agreed figure of £4,170.
Item 8.2
- This is agreed in the sum of £350. That is therefore the sum I award.
Items 9.1 and 9.2
- The agreed value of Item 9.2 is £1,888. Item 9.1 is already included in Item 6.2.2. Thus, in relation to this Item, I award the sum of £1,888.
Item 10.3.2
- The agreed quantum for this item is £13,700. That is therefore the sum I award.
Item 10.3.3
- This is included within Item 10.3.2. No further sum is therefore due.
Item 10.3.4
- The figure claimed by Mr Fitch in relation to this Item was £9,389. Mr Linnett had not provided a separate figure. HTA submitted that the quantification should be nil because some of the remedial work was already included in Item 10.3.2. Following the hearing on 8 February 2007, the point was looked at again, and it was agreed that the cost of the stone balustrading was indeed included in Item 10.3.2. The £9,389 related to the bronze railings, which was a claim that I have rejected. Therefore the parties agreed that there was no further sum to be added in connection with this Item.
Item 10.4
- This Item has been quantified in the agreed sum of £4,573. That is therefore the sum that I award.
Item 11.2
- There was no separate figure pleaded for this Item, but Appendix 2 of the Claimant's closing submissions identified a figure of £2,916 taken from Mr Fitch's calculations. Again I consider that that was a fair extrapolation of the existing evidence. I reject HTA's further submissions, provided after the hearing on 8 February 2007, to the effect that the remedial workscope would have been small and therefore inexpensive. This sort of small work is often disproportionately expensive. I therefore find, in relation to this Item, that HTA are liable in the sum of £2,916.
L2.3 Summary
- Accordingly, HTA's liability for the Items in the Scott Schedule can be quantified in the total for the Items referred to in paragraphs 853-873 above, namely £292,523.73. The significant difference between the amount claimed by Mr McGlinn in his closing submissions against HTA, and the figure of £292,523.73, is explained by four key elements of this case, the first two of which were not seriously in issue at the trial:
- Mr McGlinn's decision in January 2002 not to let Waltham back to complete the contract, which meant that there were many allegations in the Scott Schedule which could never have been sustained against any Defendant, because they were simply the result of unfinished work. I consider that this was an entirely foreseeable consequence of Mr McGlinn's decision to accept Waltham's technical repudiation and to refuse their offer to complete (see paragraph 108 above).
- The subsequent administration of Waltham, which had the consequence that they played no part in the trial. Waltham would probably have been liable for Items which were not alleged against any other Defendant, such as Item 1.1.5, and many other Items, such as Items 2.2.1 and 4.1.1, which, although alleged against other Defendants, were not the responsibility of anyone else but Waltham.
- The relatively few important Items for which, on the evidence, HTA were liable in fact or in law.
- My finding that, in all the circumstances set out in Section K above, the proper and reasonable measure of damage against HTA and DJH was the agreed cost of repair, not an arbitrary allocation of the (higher) cost of demolition and rebuilding.
L3 The Date of Assessment
- The figures identified in Section L2 above are based entirely upon the pricing work carried out and largely agreed by the experts. Their rates and prices were based on rates from the first quarter of 2005 (ie, up to 31 March 2005). Mr McGlinn claims that these figures should be uplifted to figures referable to the first quarter of 2007. HTA (and DJH) contend that the remedial works should have been carried out no later than 31 March 2005, and that therefore no uplift is appropriate.
- I have come to the conclusion that HTA and DJH are right and that, accordingly, the proper date of assessment for the repair costs is 31 March 2005. Thus I reject the Claimant's claim for an uplift. There are a number of reasons for this.
- First, I consider that the delay between January 2002 (when Waltham left site) and the decision to demolish (August 2004) was unreasonable. I have already made the point (see paragraph 115 above) that next to nothing appeared to happen between the summer of 2002 and the middle of 2003. Secondly, as noted in paragraph 125 above, I consider that the enabling works were on too grand a scale (and therefore took too long) if their principal purpose was simply to decide whether to repair or rebuild. It seems to me that the necessary investigative works should have been completed by late 2002/early 2003, which was, after all, one year after Waltham left site. The repair work would then have been completed by early 2004 at the latest, making the March 2005 assessment date generous to the Claimant.
- If I am wrong about that, it seems to me that, even if the repair work had not commenced until August 2004 (the date of the decision to demolish), it should and could have been completed by the end of March 2005. The repair works would plainly have taken many months to complete. But, given that the original contract work scope (before the changes and variations) was estimated to take one year, I do not consider that a period of eight months for the necessary repair work to an existing property is unreasonable. Thus, again, it seems to me that the works should have been finished by 31 March 2005.
- I have already set out Mr McGlinn's inability to account for the delay in the rebuilding of Maison d'Or (see paragraph 824 above). In the five years since Waltham left site, all that has happened is an excessive opening-up scheme, and the demolition of the house. This has a direct bearing on the proper date for the assessment of the repair costs. Perhaps because Maison d'Or is not Mr McGlinn's principal property, there have been extensive delays on his part in deciding what steps to take in relation to the property and when to spend the money on necessary works. I do not consider that there can be any basis for requiring HTA (or DJH) to pay for those delays. They were wholly unforeseeable.
- For all these reasons, therefore, I conclude that the correct date of assessment was 31 March 2005 and that therefore no uplift is appropriate in respect of the repair costs.
L4 Preliminaries
- In relation to preliminaries, the first dispute concerns the way in which preliminaries are assessed. The Claimant's claim is based on Mr Fitch's careful ascertainment of a wide variety of on-costs which he considers would be incurred by reference to a full remedial scheme based upon all the Items in the Scott Schedule. That assessment produces a figure for preliminaries in the sum of £475,517. Mr Linnett, on behalf of HTA, contends that the right approach is to allow a 13% uplift on the repair costs which have been allowed, to reflect preliminaries, including supervision.
- I have come to the conclusion that Mr Fitch's calculation of the preliminaries relating to the repair work is inappropriate and unworkable for a number of reasons. Those are set out below. I have also come to the view that applying a percentage uplift is the most appropriate, and certainly the fairest, means by which I can assess the appropriate amount for preliminaries. My reasons are again set out below.
- The first point is that, as Mr Fitch made plain, his assessment of the necessary preliminaries was based upon the full scope of the remedial scheme proposed on behalf of Mr McGlinn. In other words, his calculation of preliminaries assumed that HTA would be liable for each and every Item in the Scott Schedule which was alleged against them. For the reasons set out in Section F2 above, HTA do not have anything like that liability. Because Mr Fitch repeated on a number of occasions that his calculation of preliminaries depended entirely upon the basic work scope, he accepted that if the remedial scheme (to which the preliminaries would be an on-cost) was lesser in extent than the full scheme, he had done no calculation of the preliminaries appropriate to that lesser scheme. That is, of course, not a criticism of Mr Fitch, because I accept that he could not possibly do a calculation to meet every eventuality. But it does mean that there is no assessment of what items of on-cost would be appropriate to the remedial scheme necessary to rectify only those Items in the Scott Schedule for which I have found HTA liable.
- Therefore, it follows from this that, despite Mr Fitch's painstaking work, there is no evidence before me of what the appropriate preliminary items and on-costs would be by reference to the remedial works for which I have found HTA liable. It is simply not appropriate for the court to do its own assessment of what preliminaries might be required and what might not: as Mr Fitch made clear, there is no evidence on which such an assessment could properly be based.
- In addition, I have no doubt that Mr Fitch's calculation of preliminaries was over-stated. I can identify that in two separate ways. First, I note that his figure of £475,517 was more than half the cost of his own basic figure for the repair costs themselves, namely £870,066. I do not accept that any contractor pricing for work adds a 50+% uplift for preliminaries: if he did, he would quickly be out of business.
- It is also right to say that some of the individual items in Mr Fitch's calculation are also over-stated. For example, the evidence demonstrated that, for the enabling works, a hoist was bought in the sum of £12,000. Yet Mr Fitch's preliminaries included the cost of hiring a hoist for 52 weeks, in the total sum of £36,000. It was plainly unreasonable to claim against HTA the equivalent of the net cost of three new hoists. In addition, the repair works were identified as lasting 52 weeks, but there was no independent evidence that it would have taken this long, and for the reasons that I have given above at paragraph 878, I do not consider that the remedial works would have taken more than about 8 months.
- Accordingly, I have concluded that Mr Fitch's calculation of preliminaries was excessive and was, in any event, calculated by reference to a remedial scheme for which HTA have not been found liable. There is no calculation or assessment of the preliminaries appropriate to the remedial works for which I have found HTA liable.
- Of course, all of these difficulties fall away if a percentage uplift for preliminaries is utilised. If a fair percentage uplift is applied to the base repair costs, to reflect all the necessary preliminaries, then the court can be assured that a reasonable amount has been awarded to Mr McGlinn by way of damages for this element of his claim.
- It seemed to me that Mr Fitch acknowledged that, whilst he was trying to price precisely the preliminaries appropriate for one possible repair work scheme, the court was involved in a rather different exercise. This ended up with the following exchange:
"Judge Coulson:
You know, because you have been around this block before, you know there are sometimes differences between what you do if you are pricing a job and so on, and what the Judge has to do when coming to consider the question of quantum. But I just wanted to be clear that there was nothing, as it were, wrong in principle, for my purposes, about looking at percentages. Obviously I have to take into account all the other material and I have to do that properly. Would that be right?
A: That is fine, yes, that is entirely appropriate."
Accordingly, it seemed to me that Mr Fitch accepted that, for the purposes of this exercise, there was nothing wrong in principle with using a percentage, such as Mr Linnett had done. In my judgment, using a percentage was, on the evidence in this case, the only appropriate way in arriving at a proper assessment of the preliminaries cost.
- Accordingly, the argument then became what percentage should be utilised. The percentage contended for by Mr Linnett was 13%, which he derived from SPONS, the well-known pricing guide book. The 13% was at the upper end of the range that they suggested. Mr Fitch did not suggest a higher percentage. Although he criticised the use of SPONS for a job of this kind, I am not persuaded that that was a fair criticism. Both experts agreed that the SPONS' rates applied to a wide range of jobs and there was no evidence that it would not apply to a project such as Maison d'Or. To the extent that Mr Fitch expressed an opinion that it would not, there was nothing, either in the pages of SPONS or elsewhere, to support that opinion. Mr Linnett set out the reasons why he considered that it was appropriate to use the 13% rate in SPONS.
- In the round, I have concluded that it is appropriate to add the 13%, which is the top end of the range quoted by SPONS, to reflect Mr McGlinn's entitlement to preliminaries/on-costs on top of the basic cost of remedial work. Therefore, I conclude that the figure of £292,523.73, calculated at the end of Section L2 above, should be subjected to an uplift of 13% to reflect preliminaries. That would quantify Mr McGlinn's preliminaries entitlement in the sum of £38,028.08.
L5 Contingency
- Mr McGlinn claims a contingency amount, calculated at 10% of the cost of both the preliminaries and the repair works. HTA say that, given that the repair work will never be done, the contingencies against which the allowance has been raised will not occur.
- It is common in the estimating and tendering process for contractors to identify a contingency sum, to reflect possible unknown elements of the work scope. It is more unusual to see a contingency claim maintained in a trial of this sort, because the aim of the assessment of damages is to arrive at a precise calculation of the compensation properly payable to Mr McGlinn. No authority was brought to my attention in which an award of a contingency sum on repair costs has been made. However, as a matter of principle, I can see that there may be cases in which it is appropriate, and I have concluded that this is one such case. My reasons are set out below.
- First, I am not attracted to HTA's argument that, because the repair works are notional, no contingency fee is due at all. Although the repair works are now not going to be carried out, at least in this form, they still represent the correct measure of damage, for the reasons set out above. Accordingly, if it would have been reasonable and appropriate for a contractor bidding for this repair work contract to allow for an additional sum, to reflect the fact that it was more likely than not that, when the building was opened up, the eventual work scope would increase rather than decrease, then I consider that the assessment of damages can properly include for such a contingency sum. However, it seems to me that the court has to be very careful to ensure that the amount of any contingency sum properly reflects the pricing risk. Thus, if there is doubt about it, either no contingency sum should be allowed at all, or any sum that is allowed should be measured in modest terms.
- Secondly, I have concluded that, on the facts of this case, it is appropriate to add a modest sum as a contingency allowance. My principal reason for that conclusion is my appreciation of the fact that, here, certain defects were only discovered after a good deal of investigation. It must therefore be likely that some further defects, albeit relatively modest in nature, would have been discovered during the carrying out of repair works. In addition, I consider that, if the repair works had gone out to tender, the tenderers would inevitably have sought a contingency allowance. Accordingly, I consider that a modest contingency sum is allowable by way of damages in this case.
- However, I reject absolutely the suggestion that the contingency sum should be as high as 10%. I consider that the 10% is unjustifiable in these circumstances, particularly given the large amount of investigation work that was carried out by Charter between 2002 and 2004 (see Section C14 above, and, in particular, my finding at paragraph 135). I consider that the contingency uplift should not be more than 5%. That is therefore the amount that I award. 5% on the sum of £330,551.81 (being the total of £292,523.73 and £38,028.08) is £16,527.59.
L6 Professional Fees On The Repair Work
- The only dispute of principle in respect of this head of claim concerns the appointment of a project manager. The Claimant's claim is based on a project manager, in addition to an architect, quantity surveyor, structural engineer and M&E engineer. HTA contend that no project manager is necessary.
- I agree with HTA. An architect, fully instructed, and undertaking his obligations properly, would be able to run the remedial work contract without the need of a separate project manager. I therefore reject the claim for a project manager in respect of the remedial work.
- The relevant percentages are agreed by the quantum experts. Thus it is agreed that, for this remedial scheme, the architect's fees would be 4%; the quantity surveyor's fees would be 3%; the structural engineer's fees would be 0.7%; and the M&E engineer's fees would be 1.85%. That makes a total uplift for professional fees of 9.55%.
- The 9.55% is to be applied to the total of the cost of the repair works themselves, the preliminaries and the contingency. That figure is £347,079.40 (being the total of £330,551.81 and £16,527.59). Thus the professional fees recoverable by Mr McGlinn against HTA in respect of the repair works can be calculated at 9.55% of £ 347,079.40, namely £33,146.08.
L7 Enabling Works (Including Professional Fees)
L7.1 Introduction
- The total sum claimed in respect of the enabling works was £687,320.36. I have already made the point that this was an absurdly large sum to have spent on investigation and opening up, particularly when the basic remedial scheme, for all Items, was costed by the Claimant's team in the sum of just £870,066. A number of major disputes arise in relation to this claim. They include the claim for the costs of the lay-by built to provide additional parking/storage space; the extent to which the claims for other physical works are more properly described as claims for costs, not damages; and the claim for professional fees already incurred, which totals £302,425.76, and is thus the largest single element of this head of loss. In relation to this latter item, one of the principal arguments that arises is again whether or not these fees are recoverable as damages, or whether, if recoverable at all, they are recoverable as costs. I deal with each of these points below.
L7.2 The Costs of the Lay-By
- A significant part of the works carried out by Camerons in 2003/2004 involved the construction of a lay-by/parking area on Mr McGlinn's land next to the road. I was told that this work was carried out in order to facilitate the demolition and rebuilding works. However, the cost of this work is now claimed as damages against HTA (and DJH). HTA deny that they can be liable in damages for this element of the enabling works. I have concluded that HTA are right in this submission. There are three reasons for that.
- First, it seems clear that the tight confines of this site, and the possibility of building a lay-by/parking area, were known at the outset of the original project. Indeed, it appears from the documents that part of the original HTA/DJH scheme involved the construction of three parking bays on the site. However, as DJH's minutes of the meeting of 19 November 1998 make plain, this element of the proposed scheme was abandoned as part of the cost-saving exercise. Therefore, it might fairly be said that Mr McGlinn's claim against HTA now is an attempt to make them pay for work which he declined to finance originally for cost/budget reasons. That plainly cannot be right as a matter of principle.
- Secondly, the evidence was that, although planning permission was given for the construction of the lay-by on a temporary basis, solely in relation to the demolition/rebuilding scheme, nobody has subsequently suggested that the lay-by should be demolished, despite the fact that the rebuilding work has yet to take place and the house was demolished two years ago. The evidence was that, if the temporary permission could be made permanent, then that would constitute a significant benefit to Mr McGlinn and to the property. From the evidence, I cannot conclude that planning permission will not be made permanent: on the evidence, it already seems to have acquired some permanence, and I find that, on the balance of probabilities, it will become permanent. Again, therefore, on that basis, it would be wrong in principle to make HTA pay for the construction of something which was of positive benefit to Mr McGlinn.
- Thirdly, it seems to me that, in order for the Claimant to make this claim out in law, it would have to be shown that, but for HTA's breaches of contract, it would have been unnecessary to construct the lay-by. There is no evidence that supports such a proposition. Indeed, I consider it clear that HTA's breaches of contract did not necessitate the construction of the lay-by.
- It may very well be that, on this tight site, it was felt that the construction of a lay-by would assist with demolition and rebuilding. I cannot put it higher than that because there are no documents in which the precise reasons for the construction of the lay-by, and the link (if any) to the Items in the Scott Schedule, have been set out. But it seems to me that the evidence is a long way from establishing that this was a foreseeable or recoverable head of loss.
- The original HTA scheme went ahead without a lay-by. The demolition and rebuilding scheme was less complex than the original scheme because, for example, the foundation slab was not demolished and remains on site. It has not been explained why the lay-by was necessary for the demolition and rebuilding, when it was not necessary for the more significant works first time round. Moreover, given that HTA are liable only for the repair elements of the work, and not the demolition and rebuilding, there is even less to link HTA's default with the construction of the lay-by. There was no evidence that the entire repair scheme (let alone the repair work for those Items for which HTA are liable) necessitated this lay-by.
- For all these reasons, therefore, I have concluded that the construction of the lay-by was always intended and provides a benefit to the property. Mr Ross-Gower accepted that it was of benefit to the Claimant and that, at the very least, the opportunity for making the improvement permanent was inevitably going to be considered by the Claimant's team. In those circumstances, I reject the attempt to get HTA to pay for this enhancement. In any event, I do not consider that this was a recoverable or foreseeable head of loss. It is unlinked to HTA's breaches of contract and the remedial scheme required in consequence.
L7.3 Other Physical Works
- The cost of the physical element of the enabling works (as opposed to the professional fees) was £384,894.60. A significant element of that involved the construction of the lay-by, and is not recoverable for the reasons noted above. However, it appears clear that some parts of these works are unconnected with the lay-by. Thus the question arises: are there other physical elements of the enabling works which are recoverable as damages against HTA and if so, what sums should be awarded in consequence?
- I consider that an element of the cost of the enabling works is recoverable against HTA by way of damages, a proposition from which, at paragraph 601 of their closing submissions, Mr Bartlett QC and Mr Hamilton do not dissent. For example, the work of stripping the existing roof and the installation of scaffolding and a temporary roof was necessary as a result of the defect at Item 4.1.3 of the Scott Schedule. However, I consider that the bulk of the enabling works was carried out for reasons which were unconnected to those Items in the Scott Schedule for which HTA are liable. I also find that much of the enabling works consisted of an evidence-gathering exercise for the purposes of the anticipated litigation, the costs of which would not, as a matter of principle, be recoverable as damages in any event: see Hutchinson v Harris (1978) 10 B.L.R. 19 at 39, Ross v Caunters [1980] Ch. 297 at 323 and paragraph 8-030 of the Eighth Edition of Keating on Construction Contracts. How can these general findings be fairly quantified?
- There is a claim for £140,058.48 in respect of supervision, labour, plant and materials. It seems to me that a significant element of this claim would be referable to the lay-by and therefore not recoverable, but I cannot make a scientific deduction to reflect this finding, because the figures have not been properly broken down. In addition, because of the various criticisms that I make about the enabling works in Section C14 above, and the point made above as to the problems in principle with recovering these sums as damages (as opposed to costs), it seems to me that it would be wrong to allow anything like the full recovery of these sums as damages in any event. I must also bear in mind that there were no competitive tenders for this work, so that there is a real risk that the figures are inflated. However, all that said, I consider that a proportion of the total claimed is recoverable as damages, for the reasons I have explained. I consider that, in the round, no more than 25% of the total figure claimed could be referable to those Items for which I have found HTA liable and recoverable as damages. That would give rise to a figure of £35,014.62.
- There is also a claim for £214,078.94 in relation to sub-contractors. The biggest element of this, namely the £129,394.12 in respect of the piling/retaining wall, is linked directly to the lay-by and is therefore not recoverable against HTA at all. Accordingly, a reduction of £140,000 odd (to include overheads and profit on the lay-by) can and must be made from the claimed figure, leaving a balance of £74,000 odd. In addition, I consider that much of the remaining sub-contractor work would have been concerned with evidence-gathering, and I find that, for the reasons previously noted, the cost thereof is not recoverable as damages in any event. On a similar rough and ready basis as before, I find that HTA are liable for 25% of the balance of £74,000, giving rise to an additional figure of £18,500.
- There are other expenses claimed in relatively minor sums, but I disallow these on the basis that they are included within the claims for supervision, overheads and profit. Thus, doing the best that I can on the material before me, I conclude that, in respect of the physical works, HTA are liable for the sum of £53,514.62 for the enabling works, being the total of £35,014.62 and £18,500.
L7.4 Professional Fees
- The professional fees claimed in relation to the enabling works are extraordinarily high. They amount to £302,425.76, which is not much less than HTA's total liability for the basic cost of the remedial scheme itself. Of that figure, £171,543.70 was paid to Charter; this means that, on the claimed figures, Charter's fees amounted to half the full cost of the physical enabling works, including the construction of the lay-by. In my judgment, taking into account all the evidence that I heard, these fees are unreasonably high. In addition, there is considerable force in HTA's other complaint about the fees, namely that these fees were incurred in what they call the "hunt for defects and the recording of evidence for forensic purposes", so that, to the extent that they are recoverable at all, they would be recoverable as legal costs, not damages (see paragraph 910 above).
- On the evidence, there can be no doubt at all that the majority of the professional fees were incurred in identifying and recording in minute detail the defects that existed at Maison d'Or. Much of the fees went on the complex system of record sheets and cross references. The Charter witnesses agreed that their principal role was indeed to identify such matters for the purposes of the imminent litigation. Accordingly, I am in no doubt that the majority of the professional fees are not recoverable as damages. If they are recoverable at all, they are recoverable as part of the costs of the litigation: see Bolton v Mahadeva [1972] 1 WLR 1009 at 1014, CA.
- The difficulties with this as a claim for damages were significantly compounded by the fact that there was nothing to indicate precisely what Charter, or the other professionals, were doing during their time on site. Their records demonstrate what hours they spent at Maison d'Or, but do not indicate precisely what they were doing during those periods. It is doubtless for this reason that Mr Fitch could not support the appropriateness or reasonableness of those fees: it remains a mystery precisely what Charter, and others, were doing at any given time to justify these considerable fees.
- All of that said, I recognise that, just as there was some modest element of the physical enabling works for which HTA were properly liable, there must be an element of the fees payable to Charter, and the other professionals, in relation to those works, which would also be recoverable against HTA by way of damages. Mr Bartlett QC and Mr Hamilton submit that it is impossible for the court to identify what the recoverable element of the fees might be, so that nothing at all should be awarded. That, of course, is an unattractive option for the court to take, and not in accordance with Lord Mustill's comment in Ruxley (see paragraph 854 above).
- It seems to me that I do have a rough and ready way of calculating those professional fees, incurred in respect of the enabling works, which could be said to be recoverable against HTA as damages, because they related to the actual physical works being carried out in respect of Items for which I have found HTA liable, as opposed to the exercise of evidence-gathering for the litigation. It will be recalled that the experts have agreed that a reasonable total professional percentage on the prospective repair works is 9.55%. There is no reason in principle why that would not be an appropriate percentage by which to calculate that proportion of the professional fees recoverable as damages against HTA in connection with the enabling works which have been carried out. If I apply 9.55% to the amount of the enabling works for which HTA are liable, namely £53,514.62, I arrive at a figure of £5,110.65. That seems to me to be a reasonable assessment of the professional fees payable by HTA by way of damages on that element of the enabling works for which they are liable. I make it clear that any other sums would have to be sought by way of costs, rather than damages, and it is very unclear the extent to which such sums could be recovered in any event.
L8 Storage Costs
- There is a large claim for storage costs in the sum of £69,948.26. The Claimant's claim is that soft furnishings and furniture, including chairs and sofas, and a billiard table, have been stored since late 2001 in two different locations off-site. The assumption behind the claim appears to be that at no stage was Maison d'Or in a condition to allow those furnishings and furniture to be taken to Jersey and installed.
- I do not accept that central assumption. Clearly, for the reasons set out above, a certain amount of remedial work was required to Maison d'Or. But there is nothing to suggest that, in early 2002, the furnishings and the furniture could not have been delivered and installed at Maison d'Or. Neither is there any evidence that, on the basis of the limited repair works for which HTA are liable, any furniture or furnishings would have had to have been stored off-site while they were carried out.
- Indeed, there is an inherent confusion about the entire basis of this claim, apparent in the Claimant's own pleading. This claim was added by amendment in September 2006 and was said to be based on the position "following the demolition of the premises". The demolition, of course, happened only in 2005, whilst the bulk of the claim for storage actually pre-dates the demolition. The suggestion in the pleaded claim is that this head of loss is dependant on the success of the demolition case: since that case has failed, it would follow that this claim must fail with it.
- I conclude that there were no breaches of contract on the part of HTA which justified the non-delivery of the stored items to the Maison d'Or. In addition, I do not accept that, during the remedial works for which HTA are liable, any items would have needed to be stored off-site.
- I should also add that there were a number of other unsatisfactory elements of the Claimant's pleaded claim in respect of storage charges, which also lead me to reject it. It appears that Mr McGlinn did not actually pay any storage charges to start with because, other than the billiard table, the soft furnishings were stored by Disdale. Although there was a suggestion that TDD later endeavoured to recover these costs from Mr McGlinn, there is no evidence that they were actually paid. In addition, if the pleaded claim were right, the storage charges were becoming greater than the value of the furnishings and furniture being stored. That would suggest a failure to mitigate.
- For all these reasons, I reject this head of claim against HTA.
L9 Summary
- Accordingly, I find that HTA are liable to Mr McGlinn for the following sums by way of damages:
- £292,523.73 in respect of the costs of repair;
- £38,028.08 in respect of preliminaries and on-costs relating to those repair works;
- £16,527.59 in respect of a contingency allowance relating to those repair works;
- £33,146.08 in respect of professional fees relating to those repair works;
- £53,514.62 in respect of the enabling works;
- £5,110.65 in respect of professional fees relating to those enabling works.
That makes a total figure for damages recoverable by the Claimant against HTA of £438,850.76.
M THE ASSESSMENT OF DAMAGES AGAINST DJH
M1 Introduction
- I set out below my assessment of the damages recoverable by Mr McGlinn against DJH. This assessment includes:
a) An evaluation of the costs of repairing the structural Items for which I have found DJH liable (Section M2 below);
b) An evaluation of the costs of repairing the mechanical and electrical Items for which I have found DJH liable (Section M3 below);
c) A consideration of the correct date on which those costs should be ascertained (Section M4 below);
d) An evaluation of those Preliminaries for which DJH are liable (Section M5 below);
e) An evaluation of any contingency sum for which DJH are liable (Section M6 below);
f) An evaluation of the professional fees on the repair works for which DJH are liable (see Section M7 below);
g) An examination of the enabling works (including professional fees) for which DJH are liable (Section M8 below);
h) An evaluation of any storage costs for which DJH are liable (Section M9) below);
i) A summary of the damages for which DJH are liable (see Section M10) below.
M2 Costs of Repair/Structural Items
- As indicated in Section H2 above, I have concluded that DJH are liable in damages for only two groups of these Items: Item S1.1/S1.2.1 and Item 2.2/S2.5. The quantum in relation to Item S1.1/S1.2.1 is agreed in the sum of £9,351. The quantum in relation to Item S2.2/S2.5 is agreed in the sum of £5,557. There is also the award of nominal damages for Item S4.2, which I put at £1. That makes a total of £14,909. That is the base cost of the structural Items for which DJH are liable.
M3 Costs of Repair/M&E Items
- It will be recalled that there were three categories of M&E allegations against DJH. I have rejected those in the category of incomplete work (see Section H3.3 above). As to the contentious items I have found DJH liable in respect of Item 15.1, 17.4 and 32.7: see Section H3.4 above.
- The quantum of these three items is agreed. Item 15.1 is agreed at £1,313. Item 17.4 is agreed at £3,675. Item 32.7 is agreed at £1,785. Thus the total DJH liability in relation to the contentious M&E items is £6,773.
- That leaves the items which have been agreed as a matter of liability, but where there is a quantum dispute. The Claimant's claim is for £116,007. DJH accept the sum of £77,354. This dispute breaks down into a series of smaller items and I address each briefly below.
Item 18.1 - 18.2
- The mechanical and electrical repair cost has been agreed in the sum of £1,675.
- The dispute concerns the replacement of skirting boards. DJH maintain that this was never part of the pleaded case and should not be recoverable. I am not persuaded by that; in any event, it seems to me that it is inevitable, in a case of this size, that relatively minor emendations will be made to the proposed scope of the remedial work referable to a particular Item in the Scott Schedule. I consider that the replacement of the skirtings was an entirely foreseeable element of this part of the remedial scheme. Accordingly, as a matter of principle, I regard it as recoverable.
- However, I do accept DJH's submission that the Claimant's claim in respect of skirtings is over-stated and that Mr Fitch made a number of concessions that would inevitably reduce this element of the claim. I consider that DJH are right to contend that the appropriate amount is 50% of the total claimed, which would give rise to an additional sum of £4,313.75. To that must be added the £1675, making a total for this Item of £5,988.75.
Item 22.2
- This is agreed at £1,360.
Item 26.4
- This is agreed at £10,175.
Items 26.5 26.23
- The M&E works are agreed at £47,537. The difference concerns the amount of wall tiling that would also have needed to be replaced as a result of this Item. The Claimant contends that all of the wall tiles would need to be replaced in order to facilitate the under floor heating work, whereas DJH maintain that only the first two courses of wall tiles had to be replaced. Thus the Claimant contends for an additional figure of £44,364, whilst DJH say that the additional figure in respect of tiles should be £14,339.
- The M&E experts have expressly agreed that only two courses of wall tiling need to be replaced. I accept DJH's submission that the Claimant has adduced no evidence from any other expert, or witness of fact, to support the proposition that all of the wall tiles, from floor to ceiling, would have to be replaced in order to facilitate this work. Accordingly, it seems to me that the right amount to allow for wall tiling is £14,339, making a total for this Item of £61,876.
Item 27.11
- This is agreed in the sum of £298.
Item 27.14
- I consider that the cost of this Item is included in Item 27.11, and no further sum is due.
Item 27.16
- This is agreed in the sum of £125.
Item 29.4
- This is agreed in the sum of £131.
Item 32.9
- This is agreed in the sum of £476.
Item 33.2
- Again, the dispute appears to be concerned with the scope of remedial work. The Claimant claims the sum of £12,579, whilst DJH maintain that the right figure for this Item is £1,000. The figure of £1,000 is based on the agreement between the mechanical and electrical technical experts that this problem could have been satisfactorily resolved by the installation of step-overs.
- I consider that the joint statement in respect of this Item demonstrates that step-overs would have been a technically satisfactory solution. Although the joint statement suggests that there is a dispute as to whether the step-overs would be "numerous" or not, there does not appear to be any dispute that they would be a satisfactory solution. For those reasons, therefore, I conclude that the figure of £1,000 is the right measure of loss in relation to this Item.
Item 35.1
- This is agreed in the sum of £238.
- Accordingly, in relation to the disputed quantum on the M&E items for which liability is accepted, I have concluded that the right figure is the total of the sums noted in paragraphs 931-945 above, namely £81,667.75.
M4 Date of Assessment
- I refer to Section L3 above. The same reasoning applies again. There is therefore no scope for any uplift in these figures. The assessment date of 31 March 2005 was appropriate in all the circumstances.
M5 Preliminaries
- I have set out in Section L4 above my detailed reasoning as to why a percentage is an appropriate way of arriving at the necessary uplift for preliminaries. Indeed, the same reasoning applies even more forcefully to the position of DJH, given that, as the evidence demonstrated, it was almost impossible to identify with any precision what sort of preliminaries might be required in relation to the limited repair work for which they are liable. Accordingly, I have no doubt that the 13% preliminaries uplift provides the best way of arriving at a fair assessment of the on-costs for which DJH are liable. The sums recoverable for repair costs against DJH are £14,909, £6,773, and £81,667.75, making a total of £103,349.75. The 13% uplift for preliminaries would therefore be £13,435.47.
M6 Contingency
- Again, I am satisfied that my reasoning in respect of contingency payable by HTA (paragraphs 892-896 above) is equally applicable to the contingency payable by DJH. Accordingly DJH are liable for 5% on the figures of £103,349.75 and £13,435.47, a total of £116,785.22. This produces a figure for the contingency allowance of £5,839.26.
M7 Professional Fees On Repair Works
- Again, as set out in Section L6 above, the relevant percentages are agreed. I have explained why a project manager is not an appropriate additional cost. The total percentage for professional fees is 9.95%. That percentage should be applied to DJH's liability for the repair costs, including the preliminaries and the contingency, a total figure of £122,624.48. That would give rise to a liability of £12,201.13.
M8 Enabling Works
- Much of the reasoning set out in Section L7 above in relation to this head of claim applies, with even more force, to the sister claim against DJH. Thus, for those reasons, DJH have no liability in respect of the costs of the lay-by. Moreover, unlike HTA, it is difficult to see that any significant physical works were carried out in connection with the structural and/or M&E defects for which I have now found DJH liable. For DJH, there were no equivalent elements of the enabling works, such as the work to the roof, for which I have found HTA liable, and which has triggered, for them, a limited liability to pay damages by reference to the costs of those works. In addition, I am confident that the work carried out by the professionals to identify the defects and to sort out the case against DJH related directly to the anticipated litigation, and was therefore recoverable (if at all) as costs, not damages. Thus, I find that, to the extent that any element of the enabling works or professional fees was referable to DJH, it was properly classifiable as costs, not damages: it was costs incurred in respect of the conduct of the anticipated proceedings, not to help the Claimant deal with DJH's breaches of contract. I therefore decline to allow any amount by way of damages against DJH in respect of either the enabling works themselves, or the professional fees incurred in respect of such works.
M9 Storage Costs
- There is no evidence to suggest that DJH were responsible for any situation which prevented the delivery to Maison d'Or of any soft furnishings or furniture. Furthermore, I do not consider that there were any remedial works for which DJH are liable which would have required temporary storage of soft furnishings or furniture. I therefore decline to allow any amount in respect of storage charges against DJH.
M10 Summary
- For the reasons set out above, I conclude that the damages against DJH should be assessed as follows:
- £103,349.75 in respect of the costs of repair;
- £13,435.47 in respect of preliminaries relating to those repair works;
- £5,839.26 in respect of the contingency allowance for those repair works;
- £12,201.13 in respect of the professional fees to be incurred on those repair works.
That makes a total liability in damages on the part of DJH in the sum of £134,825.61.
N THE ASSESSMENT OF DAMAGES AGAINST WL
- For the reasons set out in Section J above, I have concluded that WL were not liable for any Items in the Scott Schedule. There are therefore no breaches in respect of which damages need to be assessed.
- Furthermore, it should be noted that not one single Item claimed against WL was, or purported to be, a Lead Item. Thus it is not possible to say with any certainty what sums I might have awarded by way of damages (if any) had I concluded that WL were liable for one or more of these Items.
O HTA'S FEE CLAIM
O1 Introduction
- In October 2002, HTA and Mr McGlinn compromised HTA's claim for outstanding fees. Pursuant to that compromise, Mr McGlinn paid HTA £54,594. It is now said that this amounted to an overpayment, and the correct amount to be paid should only have been £13,016. Thus it is said that Mr McGlinn has overpaid HTA by £41,578 and this sum is sought in restitution.
O2 The Relevant Facts
- HTA's fee position in late September 2002 has been summarised in a schedule, prepared by HTA's solicitor and, save for one immaterial point, it is accepted by Mr McGlinn at paragraph 824 of the closing submissions served on his behalf. From that document, it can be seen that HTA's claimed entitlement to fees amounted to the following:
- interior co-ordination: £52,125;
- disbursements: £25,875.88.
This claimed entitlement amounted to a total of £345,133.38. HTA had been paid £241,984.48. Thus, on HTA's case, they were owed £155,273.90 in September 2002. However it should be noted that this sum included a figure of £52,125 which was an uninvoiced balance on the scale fee.
- In late September 2002, there were meetings and discussions between Mr Richard Ward, of Eversheds, Mr McGlinn's then solicitor, and Mr Thornton and Mr Thomas of HTA. The outcome was a letter from Eversheds to HTA on 1 October 2002. The critical parts of that letter read as follows:
"I am pleased to be able to confirm that agreement has now been reached in respect of your outstanding invoice claim and that agreement is as follows:
1. Your claim for fees which total £286,000 is settled at the agreed sum of £255,000. This leaves a further payment due of £54,594 which together with the £200,406 already paid will be accepted by you in full and final settlement of your services in this matter to include the claim for interior co-ordination of £52,155. For the avoidance of doubt, Mr McGlinn will not exercise any right of set-off, counterclaim or deduction against the further payment of £54,594.
You will forthwith let us have an invoice for the agreed balance payment of £54,594. One half of this sum, namely £27,297 will be paid forthwith. The balance of £27,297 will be paid forthwith once you have provided the handover information which we deal with below
"
This letter was signed by Mr Thomas on 17 October 2002. Mr McGlinn paid the sum of £54,594 in accordance with the mechanism identified in paragraph 2 of the letter.
O3 Mr McGlinn's Claim
- Mr McGlinn's pleaded position is now put in the following terms:
"4. In fact, the parties to the compromise agreement, alternatively Mr McGlinn, were mistaken because, as at the date of the compromise agreement: (a) Mr McGlinn had actually already paid HTA the total sum of £241,984 (instead of £200,406) in respect of fees for the Maison d'Or project; and (b) only a balance of £13,016 (instead of £54,594) was due under the compromise agreement.
5. As a result of this mistake, following the conclusion of the compromise, Mr McGlinn paid HTA £54,594 and has overpaid HTA by £41,578 in respect of the monies properly due to HTA under the compromise agreement.
6. Mr McGlinn therefore seeks repayment of the said sum of £41,578 in restitution."
- HTA take a variety of points in response. Their first point is to submit that, as a matter of construction of the compromise agreement, the operative clause was the agreement in respect of the additional payment of £54,594, which was clear and unambiguous. Secondly HTA note that, whilst the gross sum paid at that point was £241,984.48 that was against an alleged entitlement for fees, not for £286,000, but £345,133.38. HTA also make the point that there was no evidence of mistake and nothing to suggest that, if there was such a mistake, it had been was caused or contributed to in any way to by HTA.
O4 Relevant Principles
- In The Law and Practice of Compromise (6th Edition, 2005), David Foskett QC deals in chapter 4 with the possible ways in which a compromise agreement might be impeached. He concludes that, if there was a mutual mistake of fact which went to the route of the compromise, the agreement would be rendered void (paragraph 4-16). As to unilateral mistake, at paragraph 4-22, he says this:
"Where one party to a compromise is labouring under some misapprehension about its terms that is known to, or has in some way been encouraged by, the other party, it is arguable that there is no genuine agreement between them even though, viewed objectively, it would appear that an agreement has been concluded. That could render the whole agreement void ab initio or, alternatively, result in an agreement upon the basis of the understanding of the mistaken party for whom the remedy of rectification may be available in relation to any written agreement made pursuant to the negotiations."
However, he makes clear at paragraphs 4-25 and following that where the unilateral mistake is not known to, or contributed to by, the other party, and can, therefore, be seen as a one-sided mistake simpliciter, the compromise will be upheld.
- In The Law of Restitution (6th edition, 2002) Goff & Jones deal with the various ways in which mistakes may give rise to a restitutionary claim. The most relevant paragraph comes at the end of Section 4-032 in which the learned editors say this:
"Closely analogous are those cases where the payment has been made under a binding compromise. It has long been the law that a compromise of a disputed claim made in good faith is binding on the parties thereto, even though the claim in dispute is without foundation. A payment made under such a compromise cannot, in the absence of misrepresentation, duress, undue influence or lack of good faith, be recovered on grounds of mistake of fact, unless it can be shown that it was an express or implied term of the agreement that, in the event of the parties being mistaken as to the fact in question, the money should be repaid; or unless the agreement can be shown to have been entered into on the basis of a mistake shared by both parties as to some fact of fundamental importance; or unless the payment would not have been made but for that mistaken belief. But if he assumed the risk that he might be mistaken, and paid or agreed to pay to resolve that question, his claim should be denied."
- In their written submissions, Mr Williamson QC and Mr Selby on behalf of Mr McGlinn have relied on just two authorities. They are referred to in two footnotes to the above paragraph in The Law of Restitution, although I note that, in each case, they are identified as being cases which should be compared and contrasted with the authorities which are cited first in each of the relevant footnotes. There is therefore some force in the submissions of Mr Bartlett QC and Mr Hamilton on behalf of HTA that these are not mainstream authorities.
- In Lucas v Worswick [1833] 1 Moo & Rob 293, the plaintiff paid more than he should have done because he forgot that he had already made some interim payments. Thus there was a finding that the money "was paid by mistake, in the hurry of business". In order to implement the true effect of the agreement, account had to be taken of the interim payments. I am bound to say that that seems to me to be an unremarkable result, and one which has little bearing on the issue before me.
- The other case relied on by the Claimant, Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273, was a case about a consent order. The claimant wished to set aside the order because there had been a mistake as to who owned the machines in question. Both at first instance, and in the Court of Appeal, the plaintiff was allowed to set aside the order. At first instance Vaughan Williams J said:
"
It seems to me that the law would be in a very lamentable condition if an order and arrangement based upon such a mistake could not be put right by the Court, especially at a time when nobody has been injured by what has passed, and nobody will be injured by the mistake being corrected."
Again, it is difficult to argue that the result in that case, or the reasoning behind it, was anything other than straightforward.
05 Analysis
- The first thing that needs to be done is to identify precisely what it is that Mr McGlinn is seeking to do. This is because, although he seeks to rely on Huddersfield Banking (a case in which the plaintiff was allowed to set aside a compromise order) Mr Williamson QC and Mr Selby argue that that is not in truth what they want. It was said on behalf of Mr McGlinn that all that is required is for the alleged mistake in the agreement to be corrected, with the consequential reduction in the amount to be repaid, but that such relief does not involve the setting aside of the agreement.
- I reject that analysis. It seems to me that the compromise agreement of 1 October 2002 compromised HTA's fee claim for the payment of the sum of £54,594. Any attempt to alter that amount must involve the setting aside of the compromise agreement and its effective replacement with an amended agreement. It is pure sophistry to argue that an attempt of this sort to change the amount payable under an agreement is not an attempt to set aside the agreement itself. It may be that this argument stemmed from the undoubted difficulties in which the Claimant otherwise found himself, in the light of the very limited circumstances in which the courts have condoned the setting aside of compromise agreements.
- As a matter of construction, it is my view that the principal provision in the compromise agreement is paragraph 2. That identified the sum to be paid by Mr McGlinn to HTA and the mechanics of payment. It is clear and unambiguous. Accordingly, as a matter of construction of the agreement, I find that there could have been no mistake as to the effect of the agreement. Mr McGlinn was paying £54,594 in full and final settlement of HTA's outstanding fees. It really was as simple as that.
- Even if my construction was wrong, I would still find that the amount to be paid pursuant to the compromise agreement cannot be altered or amended for the reasons relied on by the Claimant. I refer to the passages from Foskett and Goff & Jones set out above. They both emphasise that, to obtain the necessary relief, the Claimant needs to demonstrate a proper case of mistake: what the mistake was, how it came about, and whether it was the responsibility of the payee. In the present case, there was no evidence of mistake. Mr McGlinn gave no evidence about the agreement at all, let alone any mistake that he might have made, whilst Mr Ward of Eversheds, the person who drafted the agreement for Mr McGlinn, was not called to give any evidence. In the absence of any evidence of mistake, I do not consider that the Claimant is entitled to seek an order from the court allowing him to alter the agreement that he entered into.
- It is suggested that I can infer the mistake from the documents. I do not accept that. On Mr McGlinn's case the operative mistake was the reference to the £200,406 "already paid". It is said that this was obviously wrong and, once that figure was replaced with the correct figure, the sum payable to HTA was automatically reduced to the £13,000 odd. But whilst the gross payment figure was wrong, so too was the total stated for the gross fees claimed which, although identified in the letter at £286,000, was actually higher than that. As noted above, HTA's total fee entitlement was as much as £345,133.38. Accordingly, both of the two figures quoted in paragraph 1 of the letter were wrong: the total claims made and the total sums paid were both under-estimated. Neither of those errors necessarily meant that there was a mistake as to the amount payable to settle the claim in 2002, much less a mistake that was referable to or caused by HTA.
- In many ways, I consider that paragraph 1 of the agreement contained a series of preambles. Some of those preambles contained errors. In my judgment, those errors did not affect the unambiguous agreement by the parties as to the payment of the £54,594. Moreover, in one sense, those two errors cancel each other out so that, whilst the sum already paid by Mr McGlinn was actually higher than recorded in paragraph 1, so too were the total claims for fees that had been made by HTA. Thus, any error in the one figure is broadly balanced out by the error in the other.
- I return to the points outlined in paragraph 4-032 of Goff & Jones. There was no pleaded misrepresentation, duress, undue influence or lack of good faith. There was no evidence of a mistake of fact. Even if, contrary to my view, I could infer a mistake of fact, there was no express or implied term of the compromise agreement that, in the event of the parties being mistaken as to the sums previously paid by Mr McGlinn, the money should be repaid. There was nothing to suggest that the agreement was entered into on the basis of a mistake shared by both parties as to some fact of fundamental importance; indeed, I do not believe that there was any mistake properly so called on the part of either of these parties. They were aware that HTA had claims for fees that were well in excess of what had previously been paid and they knew (and agreed) what Mr McGlinn was prepared to pay in 2002 to compromise those claims. They compromised the claims on the basis that the sum of £54,594 would be paid by Mr McGlinn, and it was so paid. There is no basis in law, and no evidential support, for undoing or re-writing any part of that agreement.
O6 Summary
- For all these reasons, therefore, I conclude that Mr McGlinn has not been able to make out a case, either as a matter of principle or as a matter of fact, that the compromise agreement should be opened up in the way that he now wants. He has not demonstrated an entitlement to restitution. That claim fails. It is therefore unnecessary for me to consider HTA's alternative arguments based upon any opening up of the agreement of 1 October 2002.
P DJH'S FEE CLAIM
P1 Introduction
- DJH's pleaded counterclaim in respect of outstanding fees is in the sum of £161,476. Broadly speaking, there are three issues which arise on this counterclaim for fees. They are: the correct sum to which the percentage fee should be applied (Section P2 below); the appropriate percentages to be applied to that sum (Section P3 below); and whether or not DJH are entitled to a claim for "additional duties/transition" (Section P4 below).
P2 On What Sum Should The Percentage Be Applied
- Pursuant to their contract, DJH were entitled to a percentage of "the project cost". The issue that then arises is this: how should "the project cost" be calculated? DJH maintain that the project cost should be that ascertained by WL in their calculation of Waltham's Final Account. That final account figure is in the sum of £4,372,841. The Claimant, on the other hand, contends that "the project cost" must mean the proper value of Waltham's work, and since he contends that Waltham have been significantly overpaid for the work that they have done, he claims that DJH's entitlement to a percentage fee must be calculated by reference to the final account figure produced at the end of the valuation trial, currently due later in the year.
- As a matter of common sense, I would be reluctant to conclude that the project cost should automatically equate to the sum paid by Mr McGlinn to Waltham. It might do; it may be that, on an analysis of those sums paid, I conclude that that was a reasonable valuation of the work carried out by Waltham. But as things presently stand, there must be a real risk that that will not be the case. Mr McGlinn seeks to challenge the reasonableness of the sums valued by WL and paid to Waltham and part of that challenge is based on criticisms of DJH's valuations of the mechanical and electrical work. In those circumstances, it would be wrong as a matter of principle to conclude that, although the valuation of Waltham's work remains a live issue, DJH's entitlement to fees should be calculated by reference to the original (disputed) valuation.
- Take a simple example. Assume that Waltham sought the sum of £10,000 in respect of an element of the mechanical and electrical work and that, through a slip in their valuation processes, or even just because of a typographical error, DJH valued the item at £100,000. As part of the valuation dispute that will form the second trial in this case, those facts, without more, would lead me to conclude that that element of work had been overvalued, and Waltham had been overpaid, in the amount of £90,000. In such circumstances, it would be a nonsense for me to have already concluded that DJH's percentage fees should be calculated on a figure which included that £90,000. There would, I think, be no rational basis for such a decision.
- At paragraph 89 of his closing submissions, Mr Whitting makes the fair point that this conclusion would mean that there would never be certainty in the award of scale fees, because it would always be open to employers to criticise, or to seek to vary, the figure in the Final Account. Up to a point, this is true, although I think that it is an inevitable consequence of an open-ended percentage arrangement such as the present one. Moreover, it is not a problem that arises very frequently because, more often than not, an employer comes to an agreement with his professional advisers (of the sort reached between Mr McGlinn and HTA and discussed in Section O above), so that the final, adjusted out-turn cost is often not relevant to the calculation of the fees.
- Accordingly, in my judgment, the reference in the DJH contract letters to "the project cost" must be taken to mean the final ascertained project cost. At present, of course, this is an unknown figure and it is therefore not possible finally to determine at this stage the final amount of DJH's fee entitlement.
P3 What Is The Appropriate Percentage?
- There are of course two elements to the DJH work. In relation to the mechanical and electrical work, the agreed percentage was 1.88%. However, in their closing submissions, DJH accepted that the percentage should be abated, and the parties have agreed a reduced percentage figure of 1.84%. This abatement reflects the fact that, as discussed in Section G4 above, the mechanical and electrical works were not completed by the time DJH's contract with Mr McGlinn came to an end.
- The more difficult dispute concerns the structural engineering percentage. The contract letter (paragraph 682 above) identified a percentage of 4.5%. This percentage was not dissented from and formed the basis of DJH's invoices and Mr McGlinn's payments. However, Mr McGlinn now says that this significantly over-stated the proper scale fee and the relevant percentage should only have been 2.6%. It is therefore said on his behalf that the fees should be recalculated using the 2.6%. Essentially, therefore, Mr McGlinn seeks to substitute the agreed percentage with a reasonable or appropriate percentage.
- The Claimant's case faces a significant difficulty as a matter of principle. It has long been established that, where an express agreement for the payment of a particular sum has been reached, that express agreement cannot be modified or changed for the payment of a "reasonable sum". A specific agreement will always override an implied entitlement/liability in respect of a reasonable sum: see, for example, Keating on Construction Contracts, 8th Edition, paragraph 13-067 and the case referred to in the text there, Gilbert & Partners v Knight [1968] 2 All ER 248. Accordingly, there can be no basis in principle which would permit Mr McGlinn retrospectively and unilaterally to vary the clear term of the contract which he had accepted as long ago as 1998.
- In their closing submissions, Mr Williamson QC and Mr Selby say that the 4.5% should be varied because it was based on a misrepresentation. They point to the words in the letter which make plain that "the scale fee for normal duties, in accordance with the above document equates to 5% of the project cost
" They contend that this was a misrepresentation which would allow Mr McGlinn to make a claim for damages for the difference between the sum paid and the sum which ought to have been paid but for the misrepresentation.
- The difficulty with this submission is that, as Mr Whitting bitterly complains, it is simply not pleaded. Mr Whitting says that this is a new argument which has never been particularised. Is it said that the representation is negligent or fraudulent? Is it a misrepresentation of fact or a misrepresentation of opinion? He submits that this is not a matter which should be open to the Claimant in the absence of a proper pleading.
- I have concluded that Mr Whitting is right in these submissions. There is no proper pleading of a case for misrepresentation in the letter of 27 May 1998. This is not simply a technical point, because I also think that Mr Whitting is right to say that the precise nature of the misrepresentation would have needed to be spelt out; the relief available, if any, would depend on the precise nature of the pleaded claim for misrepresentation. Moreover, any application to amend at the start of, or during, the trial might have been extremely difficult, given that a stand-alone claim for misrepresentation might now be statute-barred.
- For all these reasons, I consider that the parties agreed that DJH would be paid 4.5% of the project cost in respect of their structural engineering work. This was a clear term of the contract and was not qualified by, or dependent upon, the way in which that percentage had been purportedly calculated. I am not prepared to allow Mr McGlinn to re-open the terms of the original contract, just as I would not be prepared to allow DJH to do the same if the percentage quoted had, on analysis, proved to be low as against the usual fee scale. Accordingly, I find that Mr McGlinn is liable to DJH in respect of 4.5% of the project cost, following the ascertainment of that project cost at the second trial.
P4 Additional Claim
- DJH's claim for outstanding fees is based on their invoice of 19 April 2002. That included a gross claim of £30,365 under the heading "time charges for transition". It appeared that, at the time that the claim was made, this was a claim for fees in respect of the reductions in the design in late 1998. Mr Ellerington's evidence, which is dealt with in greater detail below, suggested that this claim incorporated other matters. Notwithstanding that, I have concluded, for the reasons set out below, that this element of DJH's fee claim should be disallowed.
- To the extent that this is a claim for the fees incurred in respect of the reduction to the work scope, I do not consider that this is payable under the terms of DJH's contract. They are entitled to a percentage on the project cost; they are not entitled to additional fees based on work done in respect of the reduction of the proposed project work scope.
- If I was wrong about that, I would in any event conclude that DJH had effectively waived any entitlement to make this claim. The documents demonstrated that DJH first intimated such a claim at the meeting on 19 November 1998 and a formal claim was made on 21 December that year. WL then asked DJH to re-issue the relevant invoice based on a project value of £1.5 million (the reduced amount) rather than £2.2 million. DJH did just that, issuing a revised invoice in a lower figure. Later, in July 2001, when there was again a suggestion that a claim for a higher fee would be made, WL proposed, and DJH accepted, that the claim should be based on the lower project figure. Accordingly, not only was the claim of April 2002 the first time that such a claim had been made but I consider that, in the round, DJH's acceptance, on two separate occasions, of WL's request that the fees be calculated on the basis of the lower figure amounted to a waiver of any entitlement to a claim in respect of the work scope as originally proposed.
- Further and in any event, I rule out this claim on the basis that it has not been proved. DJH were always in a certain amount of difficulty in proving this element of the claim. During the trial, I allowed in a second statement from Mr Ellerington which addressed the fee claim, even though that statement was dated 25 October 2006. However, I ruled out a third statement from Mr Ellerington, which dealt expressly with this part of the claim, on the grounds that it was only provided hours before Mr Ellerington was due to be cross-examined.
- These late statements all stemmed from the fact that the time sheets that were available to Mr Ellerington, when he came to reconstruct this claim some years later, were not clearly linked to any redesign work at all. This problem was compounded by the fact that the time sheets that had been made available were summary time sheets only, and it was impossible to work out, from a sight of the summary sheet, precisely what had been done and why. This point was emphatically demonstrated in Mr Ellerington's cross-examination:
"Q: Putting it this way, Mr Ellerington: if the client wanted to know what he was paying for and he asked the question from this document [the summary time sheet]: well, what was the correspondence Mr Rochester was engaged on, or what was the discussion, or what was the drawing, there is no way of telling from this document, is there?
A: No. No."
- Accordingly, it seems to me that this claim for additional fees has not been proved either as to entitlement, or as to supporting documentation. That was why the third statement from Mr Ellerington which I refused to admit because it was so late - was so important. Moreover, I do not accept Mr Whitting's submission that this is a pleading point, and that to decide this element of the claim against DJH would be to ignore the merits. On the contrary, I regard it as a question of proving on the balance of probabilities an entitlement to a sum over and above the percentage fee. For all the reasons which I have indicated, I conclude that no such entitlement has been made out.
P5 Summary
- Accordingly, I conclude that the project cost on which the percentage must be applied is the final ascertained project cost, which will not necessarily be the amount so far paid to Waltham. I conclude that DJH are entitled to the 4.5% for structural work as set out in the letter, and the abated figure of 1.84% in respect of mechanical and electrical work. I find that DJH have no entitlement to the sums claimed under the heading in the April invoice of "time charges for transition".
Q CONCLUSIONS
- For the reasons set out above I consider that the Claimant is entitled to recover the sum of £438,850.76 by way of damages against HTA in relation to the matters in issue in the first trial. In addition, I find that the Claimant is not entitled to open up HTA's fee position.
- For the reasons set out above I have concluded that the Claimant is entitled to recover the sum of £134,825.61 by way of damages against DJH in relation to the matters in issue in the first trial. In contrast to the position with HTA, DJH's fee position has not been compromised and remains dependent on the outcome of the valuation trial. However, as a result of my other findings, once the proper valuation of Waltham's work has been ascertained, DJH's fee entitlement will become a simple matter of mathematics.
- For the reasons set out above, I have dismissed the claims against WL.
- I have not dealt with any questions that may arise concerning interest (if appropriate) or costs, nor the precise form of order that will need to be drawn up in consequence of this Judgment. Those are matters which can be dealt with when this Judgment is handed down. arh
