Mr Justice Coulson:
A. Introduction
- Although I have case-managed a number of actions concerned with the design and construction of Wembley Stadium, this is the first substantive judgment that I have had to give on one of the detailed disputes that have arisen on that project. It is therefore appropriate for me to take this opportunity to pay public tribute to my predecessor as the designated Wembley judge, Lord Justice Jackson, whose appetite for hard work and resilient good humour make him an extremely hard act to follow.
- This particular dispute arises between Brookfield Construction (UK) Limited, formerly known as Multiplex but referred to below as "BC", the design and build contractors, and the World Stadium Team, referred to below as WST, the consortium responsible for providing the architectural services. The claim is limited to the validity, nature and effect of one particular aspect of the contract between the parties, namely the obligation at clause 8.1 of the Consultancy Agreement between BC and WST dated 26 September 2002 ("the Consultancy Agreement") to provide BC with assistance, including access to personnel, so as to enable BC to carry out "a full and systematic review" of any part of WST's Services.
- This claim for declarations in respect of that obligation does not arise out of any academic interest on BC's part. Instead, it arises in the context of a substantial claim, said to be worth in excess of £250 million, which has been commenced by BC against the engineering consultants, Mott MacDonald ("Mott"). During the pre-action protocol process in respect of that claim, certain allegations of delay by BC were met by Mott with the suggestion that it was in fact WST who were or might be responsible for that particular delay. BC seek to utilise clause 8.1 to obtain the relevant information from WST in order to test the validity of Mott's responses. WST take a variety of points to the effect that no such assistance can or should now be ordered.
- BC seek declarations in the following terms:
"(1) The Defendants' obligations to provide access to its personnel pursuant to clause 8.1 of the Consultancy Agreement between the Claimant and the Defendants dated 26 September 2002 are continuing and/or are presently operative (herein referred to as Declaration 1); and/or
(2) The Claimant's request for access to the Defendants' personnel in order to carry out a full and systematic review of the Services as set out below falls within the ambit of clause 8.1 of the Consultancy Agreement:
(a) to review the interrelationship between the Services and the structural and engineering services provided by Mott;
(b) to identify changes made to the structural drawings at the request of the Defendants and/or Mott;
(c) to undertake a review of the Services in order to understand the way in which the structural and other drawings were created, amended and finalized;
(d) to assess the timescale within which certain changes to the structural and other drawings were made and the process that was involved in effecting, preparing, amending and finalizing the drawings; and
(e) to provide an explanation of the correspondence between the Defendants and Mott (as requested by the Claimant pursuant to clause 13.1 of the Consultancy Agreement) in the context of changes made to certain drawings, should this be necessary (herein referred to as Declaration 2)."
- The following issues arise on this application under CPR Part 8:
(a) Issue 1: Do the obligations under clause 8.1 survive the completion of the Services by WST?
(b) Issue 2: If they do not, are WST's Services complete and/or are BC estopped from alleging that they are not complete?
(c) Issue 3: If the obligations under clause 8.1 remain live, what is the proper nature and scope of the assistance to be provided by WST in the circumstances that now arise?
(d) Issue 4: Even if BC are otherwise entitled to the declarations sought, should the court refuse to grant them because no order for specific performance is sought and any such order would be inappropriate in a contract for personal services?
- I propose to deal with these Issues in this way. I set out in Section B below the relevant factual matrix and the terms of the relevant contracts. At Section C below I address the pure issue of construction (Issue 1/Declaration 1), by reference to the terms of the contract, and one or two authorities. Thereafter, at Section D, I deal with Issue 2 (Completion). At Section E, I deal with the issue as to the proper scope and operation of the obligation in the circumstances that have arisen (Issue 3/Declaration 2). Finally, at Section F below I address WST's submission to the effect that the court should not as a matter of discretion grant the declarations sought, even if the court otherwise accepts that the contract operates in the way contended for by BC.
B. The Contracts
- On or about 20 May 1998 Wembley National Stadium Limited, formerly the English National Stadium Development Company Limited ("WNSL") engaged the defendants, WST, to carry out the architectural design in connection with the proposed development of the new stadium at Wembley.
- By an agreement dated 6 April 1999, made between WST and WNSL, WNSL and WST agreed the terms and conditions under which the architects' design services in respect of the project would be carried out. That agreement has been referred to as the Consultant's Appointment.
- On 26 September 2002, BC and WNSL entered into a contract executed as a deed whereby BC agreed to carry out and complete the design and construction of the stadium, including the demolition of the existing structures comprising the old stadium at Wembley, site clearance, ground and enabling works, design, construction, fit out, testing, commissioning, setting to work and handover of the project, for a fixed price of £445,136,847, or such other sum as would become payable in accordance with the terms and conditions of that contract. That contract is referred to as the Design and Construct Contract.
- By a tripartite agreement dated 26 September 2002, executed as a deed and made between all three relevant parties, namely BC, WNSL and WST, and referred to as the Novation Agreement, the parties agreed that:
(a) WST would continue to perform certain architectural design services in respect of the stadium project for WNSL. Those are referred to as the Retained Services and they were performed under the terms and conditions set out in the Consultant's Appointment as amended;
(b) WST would perform other architectural design services in respect of the Project for BC under and on the terms and conditions contained in the innovated Consultant's Appointment, as amended, with retrospective effect from 28 May 1998. That was for present purposes the most important agreement and is referred to as the Consultancy Agreement.
- The Consultancy Agreement between BC and WST contained the following general provisions.
(a) Definitions
"Services" were defined as meaning: "the professional services to be carried out under this Agreement the scope of which is set out in Appendix 3, as may be varied pursuant to the terms of this Agreement together with any other services ancillary to, or necessary for, the proper performance of this Agreement".
"Works" were defined as meaning: "the Works as defined in the Design and Construct Contract in connection with which the Client has appointed the Consultant to perform the Services".
(b) The Services
Those were set out in Appendix 3 to the Consultancy Agreement. They were divided up into relatively conventional work stages and therefore covered the inception and feasibility stage down to the construction stage, which was at paragraph 4.7 of Appendix 3. The final two entries in that Appendix read as follows:
"(o) Inspect the Works on completion and, in conjunction with any Site staff, record any defects.
"(p) Issue a formal report to the Client Representative upon completion of the Works certifying that all Works have been undertaken in accordance with the Design and Construct Contract drawings and specification and to the satisfaction of the Consultant."
- The provisions relating to the performance of the Services in Appendix 3 included the following:
(a) "Performance of Services
2.1 The Consultant agrees to perform the Services fully and faithfully in accordance with the requirements set out in or reasonably to be inferred from this Agreement to the satisfaction of the Client Representative and shall, save as otherwise provided herein, comply with any and all instructions and directions issued by the Client Representative to the Consultant (provided they are not unlawful) on any matter connected with this Agreement in order to procure the achievement of the timely and proper performance of the Services. The Consultant shall have the authority to perform the Services but, notwithstanding anything to the contrary contained elsewhere in this Agreement, the Consultant has no authority to vary, without the prior written approval of the Client Representative, the design or specification of work, materials and/or goods or the quality or quantity thereof in respect of any part of the Works which is likely to increase the cost or duration of the Works."
(b) "Completion of the Services
4.2. The Consultant shall proceed with the Services in a regular and diligent manner and so as not to prejudice or interfere with the progress of the Project or the Works...
"4.7. The Client Representative shall notify the Consultant in writing of the date on which, in the Client Representative's opinion, the Services were completed in accordance with this Agreement."
- There were also provisions which required the performance of other related functions not expressly set out in Appendix 3. Those included:
(a) "Liaison and Co-ordination
5. At any time until completion of the Works, except as otherwise provided within the Services:
5.1 the Consultant shall, as Lead Consultant, convene regular meetings with the Design Consultants, act as chairman of such meetings, prepare, in conjunction with the Client Representative, agenda for such meetings and procure the taking and transmission to all attendees of accurate minutes of such meetings. The Consultant's Representative shall be present at all or any meetings necessary in conjunction with the Project to which he may be summoned..."
There then followed a series of particular obligations in respect of liaison, co-ordination and review.
(b) "Health and Safety
"6.1. The Consultant shall comply with all applicable health and safety legislation as amended from time to time, including but not limited to the CDM regulations."
There then followed a series of particular obligations in respect of health and safety.
(c) " Documents Submission
"7.1. All Drawings, reports and other documents required to be provided by the Consultant as part of the Services shall be submitted to the Client Representative for approval at the times and in the manner stipulated in the Programme or otherwise requested by the Client Representative."
There then followed more detailed provisions as to the making and sending of drawings, reports and other records.
- The clause at the centre of this dispute is clause 8, which provided as follows:
"8. Services Review
"8.1. The Consultant shall provide the Client and the Client Representative with assistance including arranging for the Client and the Client Representative, their respective servants and agents and any consultant employed by any of them to have access to personnel, plans, drawings, data files, calculations, programmes, printouts, details and the like from time to time, whether stored in human readable or machine readable form, to enable the Client and the Client Representative to carry out a full and systematic review of any part of the Services, provided always that any such assistance requested by the Client and the Client Representative does not disrupt the performance of the Services by the Consultant. The Consultant shall ensure in any agreement with any sub-consultant that such sub-consultant will be obliged to afford like assistance to the Client, the Client Representative, their respective servants, agents and any consultant employed by any of them, as aforesaid.
8.2. For the avoidance of doubt all assistance provided by the Consultant in accordance with clause 8.1 shall not be a variation to this Agreement or to the Services and the Consultant shall not be entitled to any additional payment for compliance therewith."
- The other provision which, so it seems to me, needs to be considered alongside clause 8 is clause 13. Clause 13 was in the following form:
"13. Records
"13.1. The Consultant shall retain in complete and proper form and for the entirety of the period referred to in Clause 12.1 all pertinent records relating to the Services, including (but without limitation) all records relating to the costs associated with the performance of the Services, until the discharge of his duties under this Agreement. The Client, the Client Representative and any authorised representative of the Client shall, at all reasonable times, be permitted to have access to such records. Copies of the records shall be delivered by the Consultant free of charge to an office of the Client or the Client Representative at the time and in the manner directed by the Client or the Client Representative. To the extent that any calculation, drawing, document or other record of the Consultant is to be created and/or maintained on a computer or other electronic storage device, the Consultant shall comply with the procedure notified to it by the Client or the Client Representative for back-up and for copies of such calculations, drawings, documents and other records to be stored at a place other than his project office.
13.2. The Consultant may be required to retain quality records to demonstrate the application of a quality assurance system and to appoint personnel with the authority and responsibility to take charge and resolve matters pertaining to quality."
- Other provisions in the Consultancy Agreement included:
(a) Clause 9, which dealt with WST's representative and their personnel. Clause 9.7 provided that:
"The Consultant shall maintain throughout the performance of the Services a working office located within one (1) hour's travelling time from the Works (the 'local office'). The Consultant's local office shall act as the base for the Consultant's team of personnel responsible for providing the Services. The Consultant is deemed to have included in the Fee the cost of either permanently based Site staff or staff who will make regular visits to the Site consistent with the proper performance of the Services;"
(b) Clause 10, which dealt with payment by reference to Appendix 2. This set out a series of monthly payments which started at around £236,000 and then reduced to about £59,000. These monthly payments ceased in December 2005, apparently because completion of the Works was originally planned for January 2006, although there were two later payments totalling about £200,000 due in March and April 2007, some time after the projected completion of the Works;
(c) Clause 12, which dealt with insurance. This required WST to maintain insurance to a level of £20 million for a period of 15 years after practical completion of the whole of the Works or 12 years from the last certificate of making good defects, whichever was the earlier. As noted in paragraph 15 above, the periods in clause 12 were directly relevant to the periods during which records were to be retained under clause 13;
(d) Clause 15, which was concerned with confidential information. Clause 15.1 provided that:
"Save in respect of purposes expressly sanctioned by this Agreement or by the Design and Construct Contract or for the purpose of complying with any law or Court Order, no information or documentation given or prepared for or in connection with this Agreement which has the necessary quality of confidentiality (the 'Confidential Information') shall be disclosed or divulged by the Consultant to any third party or used by the Consultant otherwise than for the purposes of this Agreement without the prior written approval of the Client Representative. The Consultant shall ensure that its professional advisers, any sub-consultant employed by the Consultant, each associated, affiliated or connected company of the Consultant (as defined or within the meanings in the Companies Act 1989) or shareholder of the Consultant, its servants, agents, employees and assigns and any person to whom any Confidential Information is disclosed pursuant to this clause 15.1 shall be bound by a like confidentiality undertaking. The Consultant shall reasonably assist the Client (including with the provision of documentation, evidence and witnesses) with any action taken or to be taken by the Client or WNSL against any third party for the alleged wrongful divergence of Confidential Information provided that the Consultant shall be reimbursed the reasonable cost of such assistance where such third party is not a sub-consultant, agent or employee of the Consultant."
- It is unnecessary for present purposes to set out in any detail the terms of the Design and Construct Contract. However, as we have seen, the definition of the Works in the Consultancy Agreement was the definition of the Works in the Design and Construct Contract. That was in the following terms:
"The demolition of existing structures, site clearance, ground and enabling works, construction, fit-out and other works, the supply of goods, materials, components and parts, and all other work specified in or as may be reasonably inferred from or implied in the Employer's Requirements, the Contractor's Proposals or otherwise in the Contract and including all work, actions and services and any changes made to the foregoing in accordance with the Contract necessary or required to implement and complete the design, construction, fit-out, testing, commissioning, setting to work and handover of the Project and any other works performed or defects, shrinkages or other faults or outstanding items corrected and/or completed during the Defects Liability Period in accordance with the Contract."
- This definition should be contrasted with the definition of the Works in the recitals of the Novation Agreement which provided:
…"works of demolition of existing structures, site clearance, ground and enabling works, construction, fit-out and other works, the supply of goods, materials, components and parts, and all other work specified in or as may be reasonably inferred from or implied in the Employer's Requirements, the Contractor's Proposals (both as defined in the Design and Construct Contract) or otherwise in the Design and Construct Contract, and including all work, actions and services and any changes made to the foregoing in accordance with the Design and Construct Contract necessary or required to implement and complete the design, construction, fit-out, testing, commissioning, setting to work and handover of the Project."
In other words, these two definitions of the Works were in different terms.
C. Issue 1: Do The Obligations Under Clause 8.1 Survive The Completion Of The Services By WST?
C1. The Arguments
- WST maintains that, as a matter of construction, the obligation to provide a full and systematic review of any part of the Services does not survive the completion of the Appendix 3 Services by WST. That submission is, they say, based on the words of clause 8.1 and certain other provisions of the Consultancy Agreement. On the other hand, BC contend that there was no such limit in clause 8.1, and that the obligation to provide the review after completion of some or all of the Services is entirely consistent with the other provisions of the Consultancy Agreement.
C2. Clause 8.1 Itself
- Clause 8.1 is an unusual provision. Many standard forms of building and engineering contracts contain obligations on the part of the Contractor or the Consultant to provide information, usually in documentary form, to the Client. What is unusual about clause 8.1 is that it promises access to personnel as well as access to documents. In addition, this access is to be provided as part of "a full and systematic review of any part of the Services". This is another unusual feature of this particular contract. Whilst a service review may often be conducted informally, it is unusual in my experience to see it spelled out in this way. However, for whatever reason, I understand that provisions of this type are not uncommon in the contracts for the Wembley professionals.
- There can, I think, be no doubt that clause 8.1 does not contain any express words which seek to limit or exclude its operation by reference to the completion of the Services in Appendix 3. As a matter of construction of the clause itself, therefore, it would appear that the obligation did not cease when the Services were completed. More importantly, it seems to me that the words of clause 8.1 point inexorably the other way: that the completion of the Services does not bring an end to the obligation to provide access. Indeed, it might be said that completion of some or all of the Services was necessary before this obligation could be triggered at all.
- My principal reason for that conclusion is the use of the word "review". A review looks back at something in order to examine it critically. In this case, that which is being reviewed is all or part of the Services which have been performed by WST. Such a review would either be impossible, or at the very least have little meaning or purpose, unless and until the Services to be reviewed have first been completed.
- I am in no doubt that the principal purpose of clause 8.1 was designed to allow BC to undertake the detailed analysis in conjunction with WST of the Services which they had performed. Such a review would only make sense if it happened once those Services had been performed. Otherwise the review might be premature and might end up wasting everybody's time and effort.
- Of course it was quite possible, pursuant to clause 8.1, for a review of at least part of the Services provided by WST to be carried out when that part had been completed but when other Services were still ongoing. But that would still mean that those parts of the Services carried out towards the end of the retainer would be likely to be reviewed once the Services as a whole had been completed, and in any event that possibility would not preclude a review at a later date of a part of the Services performed earlier, which review may not in fact take place until all of the Services had been completed. On a complex building project such as this, the focus for everyone is always on doing the work in hand so as to meet the deadlines. Those involved rarely have the luxury of sitting down quietly and reviewing the performance during an earlier stage of the process until the whole project has been completed.
- WST point to the proviso in clause 8.1, that any assistance that they provide should not disrupt the performance of the Services themselves. They contend that this shows that the review was supposed to take place whilst the Services were being performed, and not once they had been completed. I respectfully disagree with that. The proviso is there to ensure that if, as could easily happen, a review of part of the Services was sought whilst other parts of the Services were still being performed, WST would be able to postpone any such review if there was a legitimate concern about disruption of those remaining Services. It seems to me that was an entirely reasonable proviso, but in my judgment it strengthens rather than weakens the conclusion that the review, and therefore the access to personnel on which it depended, could occur (and may be much more practical) after the completion of all the Services.
- Finally, in respect of clause 8.1 itself, I consider that WST are seeking to suggest that a limit on the operation of clause 8.1 should somehow be inferred or implied into the contract because such a limit would be reasonable. It seems to me that, in the absence of any express provision, no such limit should be implied. There are two brief reasons for that. The first, of course, is that such a provision is not necessary. It is not required in order to give this contract business efficacy: see Liverpool City Council v Irwin [1976] 2 All ER 39. Moreover, for the reasons which I have explained above, I am not persuaded that such a limit or exclusion is in truth reasonable anyway. A review of the Services after they have been completed will in many instances be the appropriate time for such an exercise.
- For all those reasons, therefore, I consider that, on a proper construction of the words of clause 8.1, the obligation, amongst other things, to provide access to personnel did not cease on completion of the Services. It then becomes necessary to consider the other terms of the Consultancy Agreement in order to see whether such a conclusion is at odds with its other provisions.
C3. Other provisions of the Consultancy Agreement
- For the reasons noted above, I conclude that my construction of clause 8.1 is not contrary to the other provisions of the Consultancy Agreement. In truth I consider that it is consistent with those other provisions. I deal with some of them below.
(a) Time Limits
- I accept the submissions of Mr Stewart QC on behalf of BC that where the parties wanted to place time limits on WST's performance of specific obligations, they did just that. Thus clause 5, which set out WST's liaison and co-ordination obligations, made clear that those obligations continued until completion of the Works, not the Services. Depending on the separate debate about whether or not for those purposes the Works included the Defects Liability Period and the snagging, that might extend time well beyond the completion of the Services. Similarly, clause 9.7 required WST to maintain a local office within one hour's travelling time from the Works, but only throughout the performance of the Services, and not thereafter. Thus if the Works included the defects liability period or the snagging, and if WST had a role to play in respect of such elements of the Works, then they would be required to perform that function, but would not be required to maintain an office during that period.
- In similar fashion, clause 13 required the retention of particular records for the length and period identified in clause 12.1. Again, therefore, that demonstrated the parties' intention to circumscribe particular obligations by reference to particular time periods. In contrast, clause 8 is entirely silent as to the existence of any such time limit.
(b) Clause 13
- One of the points made by Mr Sears QC during his clear submissions on behalf of WST was that, if clause 8 meant what BC said it did, then clause 13 was entirely otiose. It is, of course, a rule of construction that, wherever possible, a court should endeavour to give meaning to all parts of the contract: see "The Apostolis" (No 2) [2000] 2 Lloyd's Rep 337 at 348, Court of Appeal.
- I can see some force in this submission. There can be no doubt that there is a potential overlap between clauses 8 and 13. However, on analysis, I consider that Mr Stewart was right to say that the essential difference between the clauses was this: that whilst clause 13 obliged WST to provide certain specific records for the lengthy periods identified in clause 12, the access provisions in clause 8 covered a much wider range of documents and would include things like internal emails, as well as access to personnel, which were not the subject of the more onerous retention obligations in clause 13. That, of course, was an incentive for BC to put in hand any review sooner rather than later, but it did not mean that the obligations as to records under clause 13 were somehow rendered otiose by the access provisions in clause 8.1.
(c) Appendix 3/Clause 4.7(p)
- There was considerable debate about the final specific Service identified in Appendix 3 to the Consultancy Agreement, namely clause 4.7(p) (paragraph 11(b) above). That required the provision by WST of a formal report in respect of the Works. It was WST's case that the provision of this report in January 2007 was the final act under the Consultancy Agreement and demonstrated beyond doubt that their Services had been completed. There is a point on the facts, to which I return in Section D below, but for present purposes it seems to me that this argument highlighted WST's difficulty on clause 8.1. How, Mr Stewart asked rhetorically, could the performance of the last part of the Services, which included the provision of the report, be the subject of a review under clause 8.1 if, once the report had been provided, the Services had been completed and there was no surviving obligation under clause 8.1? There was no answer to that question. In my judgment, when taken as a whole, the Consultancy Agreement did not mean that, once the Services had been completed, including the provision of the clause 4.7(p) report, the obligation under clause 8.1 automatically came to an end.
C4. Other Arguments
- There were a variety of other arguments about the clause 8.1 obligation. I deal with those more briefly below.
- Although the obligations under clause 8.1 did not come to an end automatically on the completion of the Services, so were therefore not limited in time, I accept the proposition that the obligation was limited by purpose. The obligation to provide access to personnel and the like on the part of WST was only triggered if BC required such access for the purpose of carrying out a full and systematic review of the Services provided by WST. Thus if access was required for that purpose, then WST were obliged to provide such access, but not otherwise. That is a point to which I return in Section E below.
- There was a suggestion, made on a number of occasions on behalf of WST, that the obligation under clause 8.1 was potentially onerous. Again, the detail of that is a matter for consideration under Section E below, but it seems to me that the nature of the obligation cannot of itself influence my construction of the contractual provisions. For the avoidance of doubt, I reject the suggestion that the clause cannot mean what it says because the suggested review may involve considerable work. In any event, I am bound to note that on the basis of the information before me, WST earned something like £16 million from this project. Clauses 8.1 and 8.2 made clear that this was an obligation which WST would have to allow for in their figures at the outset because no additional fees were to be paid by reference to it. Therefore, on one view, this is an obligation for which an allowance has already been made by WST and it cannot be unreasonable now to require them to perform it.
- The related point was made that WST's fees were payable during the period when the Services were performed and that once the services had been completed, since WST were not entitled to be paid any further fees, they could not be expected to provide any further contractual obligations either. It seems to me that that argument must fail at every level. In particular:
(a) As a matter of fact, the scheme involving WST's fees and set out in Appendix 2 of the Consultancy Agreement identified two sums worth £200,000 by way of fees that were to be paid after the Works were supposed to be completed, which would be, on WST's case, after the date of the completion of the Services (see paragraph 16(b) above.
(b) As a matter of construction of the Consultancy Agreement generally, WST's obligations were wider than merely the Services set out in Appendix 3. The obligations in clauses 5, 7, 8 and 13, for example, could be said to expand and supplement the Services set out in Appendix 3.
(c) As a matter of construction of clauses 8.1 and 8.2 specifically, an allowance for this obligation, in my judgment, should have been built into the other stage payments. As already noted, whilst no additional sums would be paid to WST, that did not prevent them from agreeing monthly payments which would include an allowance for the possibility of such a review.
- Mr Sears demonstrated that the original arrangements between WNSL and WST contained a provision pursuant to which WST would provide advice in respect of any claims made against WNSL. That provision was deleted from the Consultancy Agreement between WST and BC. Therefore, he submitted, BC were endeavouring to use clause 8.1 to make good the deletion of the claims advice clause.
- On the face of it, that was a reasonable point. But looking at the clauses in some detail, I am bound to accept Mr Stewart's submission that the claims advice clause was deleted from both the Consultancy Agreement between WST and BC and the continuing agreement between WST and WNSL in respect of the Retained Services. This was because it would have been impossible for WST, who by then had two different employers, to give claims advice to either of them. Furthermore, it is right that clause 8.1 is not, on its face, a claims advice provision. The fact that BC wished to use it now in the context of the dispute with Mott is something which I have to consider in Section E below (the scope of the obligation) but it is not relevant to whether or not this remains a live obligation at all. For present purposes, I do not believe that the deletion of the claims advice provision has any effect on the meaning or continued operability of clause 8.1.
- Finally, there was a certain amount of argument as to the impracticality of WST's stance to the effect that the obligation under clause 8.1 automatically came to an end when the Services were completed. It certainly seems to me that this would not be an easy position to maintain in practice. Let us, for this purpose, presume that the Services were completed on the provision of the Appendix 3/clause 4.7(p) report. That would mean, presumably, that if a review in accordance with clause 8.1 was requested the day before that report, then WST would have to acknowledge that the obligation under clause 8.1 had been triggered, whereas if the request was made the day after that report, WST would argue that there was no remaining obligation, even though, in both instances, the review itself would have had to have been performed after the completion of the Services themselves. That seems to me to be a draconian and surprising result which could only be justified on the basis of clear words. In my view, no such words exist here.
C5. Summary
- For all the reasons set out above, I am in no doubt that WST's obligation, pursuant to clause 8.1, survived the completion of the Services. There was nothing in the words of clause 8.1 that could lead to a contrary conclusion. In my judgment a consideration of clause 8.1 within the scope of the Consultancy Agreement as a whole only supports that interpretation.
D. Issue 2: Are The Services Complete?
D1. The Arguments
- A dispute arose between the parties as to whether it could be said that WST's Services under the Consultancy Agreement were in fact complete. WST said they were; BC said they were not. This debate only arose at all because of WST's contention that their obligation under clause 8.1 had come to an end, because their Services as a whole were complete. Since I have concluded that their obligation under clause 8.1 survived completion of the Services themselves, this issue is now largely academic. In deference to the parties' submissions, I deal with it briefly below, but I should make clear that in so doing, given that this is a Part 8 application, on which I have not heard oral evidence, I should not be taken to have made any definitive findings of fact.
D2. The Letter Of 12 January 2007
- WST say that this letter constituted their report under clause 4.7(p) of Appendix 3 of the Consultancy Agreement. They say it was produced at BC's request. Accordingly, they say that the report demonstrated that their Services were completed and that BC are estopped now from alleging that the Services were not completed.
- From the information before me, which may be limited, I accept that the letter was written as a result at least of the involvement of BC. Putting it another way, BC were clearly not surprised to receive the letter and did not allege, either then or subsequently, that it was not a letter in accordance with clause 4.7(p) of Appendix 3.
- I do not, however, accept that that meant that the Services had in fact been completed and/or that BC are now estopped from contending that the Services have not been completed. There is nothing in clause 4.7 of Appendix 3, and nothing in any other part of the Consultancy Agreement, which provides that the report generated by that clause would certify completion of all of WST's Services. Indeed, I do not consider that such a report could demonstrate the cessation of all of WST's Services. There is no express link between the report, which deals with the completion of the Works, and the completion or otherwise of WST's Services.
- Furthermore, the facts, as set out in the documents that I have seen, make plain that the Services did not come to an end in January 2007 and may well be ongoing. In particular:
(a) By a letter dated 19 March 2007, WST alleged for the first time that their report of 12 January 2007 demonstrated that their Services had been completed. BC wrote back on 16 April 2007 to challenge any such case, saying:
"We refer to your letter dated 19 March 2007 outlining your understanding that your Services is [sic] complete on the sole basis of WNSL granting Practical Completion to MPX.
It seems that your understanding did not consider the fact that the terms and conditions associated with the Practical Completion under the Design & Construct Contract between WNSL and MPX has no relevance to your Services. Simply, gaining Practical Completion on the Design & Construct Contract does not automatically bring about completion of your Services under the Novation Agreement."
(b) Since January 2007 WST and BC have apparently been working together to address the defects during the defects liability period. I have seen documents, including emails, which demonstrate that liaison, which is what I would expect to see between the lead consultant and the design and construct contractor on a project like this. It cannot therefore be suggested as a matter of fact that WST are treating the Consultancy Agreement as having come to an end in January 2007.
- In addition, clause 4.7 of the Consultancy Agreement itself, set out at paragraph 12b) above, required a certificate to be issued by BC to WST to identify the date on which, in the Claimant's view, WST's Services had all been completed. It is common ground that there is no such certificate here.
- All of those matters of fact indicate strongly that WST's Services have not yet been completed. Nor, against that factual background, could I properly find that BC are estopped from contending that the Services have not been completed. There can be no such common assumption, it seems to me, when the first time that such a completion case was asserted by WST, it was rejected by BC.
D3. The Different Definitions Of The "Works"
- As noted in paragraphs 17 and 18 above, the Works were differently defined in the recitals of the Novation Agreement, as compared to the Design and Construct Contract, which latter definition was then carried into the Consultancy Agreement. The former description appeared to omit an express reference to snagging and the like. WST therefore contend that they had no obligations in respect of snagging or any stages after practical completion.
- It seems to me that, if the definitions are incompatible, the most important definition of the Works was the one in the Consultancy Agreement, which includes snagging in the definition of the Works. That is because the Consultancy Agreement was the principal agreement between these parties. In the event of a clash, moreover, the definition in the contract itself must take precedence over a recital in the Novation Agreement: see Moon Ex parte Dawes [1886] 17 QBD 275 and, more recently, T & N Limited (In Administration) v Royal & Sun Alliance [2003] 2 AE (Comm) 939.
- In truth, however, I am not sure that there is any inconsistency. Although the words are different, they may well have the same meaning. That is because the definition in the Novation Agreement, on which WST rely, refers to the Works "specified in the Design and Construct Contract", which appears on its face to include the snagging after all. In those circumstances, as I have indicated, I am not persuaded that there is a significant difference between the two definitions.
- For all these reasons, therefore, I do not accept that WST had no relevant obligations in respect of snagging in the defects liability period. That may, of course, explain why they have, on the facts, been involved in that process.
D4. Summary
- The arguments in respect of completion are largely academic because of the view that I have formed on Issue 1. However, to the extent that it makes any difference, I incline to the view, for the reasons noted above, that WST's Services have not yet been completed.
E. Issue 3: The Nature And Scope Of The Assistance To Be Provided By WST
E1. The Arguments
- WST maintain that, in order to answer the sample questions that they have recently been asked by BC, pursuant to clause 8.1, they would be required to engage a large amount of their staff full time on research, preparation and presentation of the necessary answers. They maintain that this is not what the contract envisaged. BC say that WST have grossly exaggerated the work involved, and all that is required is the attendance of Mr Campbell, a specified and key member of WST's permanent team who remains employed by WST, at a series of meetings and his "honest answers" to the questions posed.
E2. The Relevance Of This Issue
- It is important to make clear that, in my judgment, Issue 3 does not go to Declaration 1, namely whether or not WST is obliged to provide access to personnel, et cetera. It could not be suggested, because this may be an onerous obligation, that Declaration 1 should not be granted. In Section C I have concluded this is a live obligation with which WST must comply. Thus, it seems to me, Issue 3 can only go to Declaration 2, which purports to identify the matters on which BC require specific assistance.
- There is one practical difficulty with Declaration 2 and the arguments that it has engendered. As we shall see in the following section E3, the parties have approached this issue on a relatively broad basis, demonstrating their different perspectives of what is and what is not involved. They have not addressed the specific sub-paragraphs of Declaration 2. That has not made an analysis of BC's entitlement to the precise wording of Declaration 2 an easy task for the court.
- What I propose to do is summarise in section E3 below the matters between the parties on Issue 3, namely the operation of clause 8.1 in practice, before going on in section E4 to set out my analysis of the scope and the limitations of the clause 8.1 access/review in the circumstances which now exist.
E3. The Details Of The Parties' Competing Submissions.
(a) WST
- On behalf of BC, at paragraph 4.5 of his first witness statement, Mr Keenan set out an example of the type of assistance that BC requested from WST. The first such example related to project drawing 511S-02WD22410 Rev K and Rev J. The request sought information in relation to that drawing, asking in particular questions as to the interaction between that drawing and the information provided to and from Mott during its production and revision.
- In response, at paragraphs 25 to 27 and 33 to 35 of Mr Vickery's first witness statement, there is an explanation of the work done in order to comply with that one sample request. Mr Vickery says that it took eight people a total of 19 days to research the history of the changes to the drawing at a cost to WST of £16,920. He maintained that it was a very difficult process. Extrapolating this to the requests generally, he concluded at paragraph 41 of his statement that the total cost of WST assisting BC in this way might be in excess of £5 million. He says that 45,600 manhours would be required for an exercise on that scale.
(b) BC response
- Paragraphs 5.3 to 5.9 of Mr Keenan's second statement set out BC's response to this analysis. He maintains that the calculations "are grossly overestimated" for a number of reasons. In particular, he says that BC are not asking WST to carry out any preparation or any document searches pursuant to its request for access to personnel. He says that BC will search for relevant documents themselves and provide those to WST because, as he puts it, it is accepted that BC cannot ask WST's personnel "to undertake significant preparation". He says at paragraph 5.5:
"(a) BCL will collate any necessary documents and present its questions in a similar format to the examples provided in paragraph 4.5 of my first witness statement. These questions will be provided to WST at least two days prior to the meetings;
(b) WST will not be required to conduct any independent research prior to the meetings but may consider any responses in advance to ensure that personnel time is used as efficiently as possible and that the access provided fulfils the purpose of conducting a full and systematic review pursuant to clause 8.1;
(c) An initial meeting with WST will take place in which WST will provide honest answers to BCL's queries. Given the technical nature of BCL's queries, a face to face meeting will enable WST to provide a prompt response as it would be time-consuming and impractical to correspond in writing. WST's response may prompt further questions and additional research for BCL and its experts which may need to be addressed in subsequent meetings;
(d) The process is likely to be an iterative one albeit it will not involve significant preparation time for WST's personnel. Full co-operation from WST's personnel will of course ensure that BCL's queries are answered quickly and in a time-efficient manner."
- As to the overall exercise involved in the requests, Mr Keenan suggests that BC envisage a time commitment in the order of five days, spread possibly over six months, although he accepts that that estimate might alter. At paragraph 5.8 of his second statement he says that although he understands WST's concerns, he considers that as long as the questions are "answered honestly by WST's personnel", then that is as much as both sides can hope for.
E4. Analysis
(a) What BC Have To Accept.
- It seems to me that BC have to accept the following limitations which may be significant on the clause 8.1 process as it has now arisen. First, BC have to take their chances as to the WST personnel to whom access can be made available. WST have no obligation to retain any individuals merely to assist in this process. Moreover, even if the relevant personnel such as Mr Campbell are still retained by WST, their availability has to be conditioned by their other obligations. Thus the meetings would have to take place at their reasonable convenience, not that of BC.
- Secondly, because of the passage of time, WST's personnel cannot be expected to have anything like a full recall of the relevant events. The entire review process, therefore, will be dictated by the documents. BC properly accept that it is for them to prepare the necessary documentation. Once particular documents are put to the WST personnel, they will obviously deal with such questions as best they can, but if there are matters which are unexplained, or which may be explained by reference to documents which are not available, then there will be little that BC can do about that. It will not be appropriate for the same personnel to attend a series of meetings in order to give BC a number of separate opportunities to ask effectively the same questions, albeit by reference to different documents. BC should aim for one discussion only on each aspect of the case. Clearly in certain instances a second discussion may be required, but it ought not to be regarded as the norm.
- Thirdly, BC's questions will need to be specific and should be provided to WST in advance. The documents which BC prepare, and on which questions will then be asked, should also be identified in advance. If, as might possibly happen, the WST personnel are asked at a later date about the answers that they gave at these meetings, it may be important to demonstrate what documents were made available to them and, therefore, what documents were not.
- Fourthly, it would be idle to ignore the commercial reality that WST's answers arise out of the issues raised in the existing claim against Mott. Therefore, the WST personnel will need to be given at least a general warning as to that context, although it is earnestly to be hoped that lawyers do not attend the meetings: if they do, there is of course a risk that the meetings will be entirely unproductive. I do incline to the view on the papers that I have seen that BC are endeavouring to utilise the review process as an alternative simply to joining WST as a second defendant. In such circumstances it does seem to me that it is in WST's best interest to be as helpful as they can be.
- Finally, it will be important to ensure that this process does not go on indefinitely. I am reluctant, at least at this stage, to indicate a cut-off date. However, it seems to me that this overall process should not last more than the six months identified in the BC material and I would expect it to take less.
- It is as a result of these practical and logistical limitations on the review process that I do not accept the submission that WST's obligation is open-ended and potentially ruinous for WST. It was, in my judgment, always limited by purpose and there can be no doubt that its limitations have increased as time has gone by and the review which the clause is designed to provide becomes more difficult to conduct in a meaningful way.
(b) What WST Have To Accept.
- WST have to accept that it is their performance which is being reviewed. Whilst the burden of document identification and preparation will be wholly with BC, the provision of questions in advance of the meetings will give WST at least the opportunity to undertake some pre-meeting research. Whether or not that proves possible is, and must be, dependent on the other commitments of WST's personnel.
- As I have said, WST's personnel will have to endeavour to answer the specific questions as clearly and as helpfully as possible. I have indicated the safeguards. It may well be that the answers will sometimes be "I don't know" or "I can't remember", but clearly, by the same token, WST will be aware that the credibility of such answers, if they are endlessly repeated may, either then or subsequently, be called into question. Clearly WST have an overriding obligation to co-operate (Merton v Leach [1985] 32 BLR 51) and not to obstruct this contractual process (Mackay v Dick [1880-81] LR 6 App Cas 251).
(c) Answer to Declaration 2.
- Accordingly, on the basis of this analysis, it seems to me that I ought to grant a declaration in the terms of Declaration 2, but make it subject to the analysis set out above. In short, the entirety of Declaration 2 should be the subject of a proviso to reflect the points that I have made. That proviso is to ensure that, although the review will include the matters at a) to e) of Declaration 2, that is only to the extent that such matters can be addressed reasonably promptly and with reasonable clarity. I am sure that the parties will be able to come up with a better formulation for that proviso, but something like it will be required.
F. Issue 4: The Exercise of the Court's Discretion
F1. The Arguments
- The grant of a declaration is a discretionary remedy: see the decision of Neuberger J, as he then was, in FSA v Rourke [2002] CP Rep 14. WST contend that I should not grant the declarations sought because they arise out of a contract for professional services, and that if WST do not comply with that contract and BC bring the matter back to court, the court would not make any order for specific performance. BC profess surprise that this point has even been raised, since they considered that their relationship with WST was relatively good. They submit that this argument is tantamount to a suggestion that the declaration should not be granted because WST will not comply with the terms of the Consultancy Agreement.
F2. The Validity of the Declarations
- There can be no doubt that Declaration 1 arises out of a legitimate dispute between the parties as to whether or not there is now any relevant obligation at all. I have resolved that dispute in favour of BC because I have concluded that, as a matter of construction, there is indeed such an obligation. I am unaware of any matter relevant to discretion which would prevent me from making a declaration to that effect. That would have the result that WST were obliged to do something under this contract which they have been requested to do but which hitherto they have not done. Thus, even if there was no Declaration 2, it would follow on that analysis that any continuing failure by WST would amount to a breach of contract.
- That brings me on to Declaration 2. The whole purpose of Declaration 2, and my analysis in Section E above, is to try and provide assistance to the parties to identify precisely what it is that requires to be done in the present circumstances pursuant to that clause. On the face of the documents there was a legitimate dispute between the parties as to what WST should do and what they should not do. Whilst, of course, the grant of Declaration 2 is a discretionary remedy, it seems to me that, because the parties were so at odds as to how that obligation was to be performed in practice, it will or at least may be of assistance to both of them for me to set out, at least in general terms, what I believe is required by the clause.
- Again, I am unaware of any reason why I should not exercise my discretion in favour of granting Declaration 2, subject of course to the proviso which I have indicated.
F3. Specific Performance
- Having concluded that the declarations are of themselves valid, and that there is no reason why in the exercise of the court's discretion they should not be granted, I turn to the argument about specific performance. I agree with Mr Stewart's submission that there is at least a suggestion in this argument that WST are proposing not to comply with the declarations because they believe that they could not be compelled so to do. I also agree with Mr Stewart that that argument is surprising, given that in the correspondence, when the point was first raised, WST's stance was, so it seems to me, entirely reasonable. They indicated that they wanted to be of assistance but did not believe that they were obliged to provide access as required: see in particular their letter of 16 September 2008.
- It would, I think, be wrong in principle to conclude that the declarations are valid; to conclude that there is no reason why as a matter of discretion they should not be ordered; and then refuse to grant them, because if WST fail to comply, BC's further remedies in court may be limited. Ultimately it seems to me that that would be tantamount to one party seeking to rely on its prospective breach of contract in order to persuade a court not to grant an otherwise valid declaration. I consider that such a proposition is bad in law and I do not accede to it.
F4. Summary
- For all those reasons, I have concluded that BC are entitled to the declarations they seek, albeit that Declaration 2, which is designed to assist the parties as to how the obligations should be performed in practice, must be the subject of a proviso along the lines that I have indicated in paragraph 70 above. There is no reason in law why these declarations should not be granted. I could not possibly refuse to grant such declarations on the basis that WST may choose not to comply with them. I earnestly believe that, in the light of this Judgment, they will comply with those contractual obligations.
