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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Royal Brompton Hospital National Health Service Trust v Hammond & Ors [2001] EWCA Civ 550 (11 April 2001) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2001/550.html Cite as: [2001] BLR 297, [2001] EWCA Civ 550, [2001] Lloyd's Rep PN 526 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TECHNOLOGY AND CONSTRUCTION COURT
HIS HONOUR JUDGE RICHARD SEYMOUR QC
Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 11th April 2001 |
||
B e f o r e :
LORD JUSTICE CLARKE
and
LORD JUSTICE LAWS
____________________
THE ROYAL BROMPTON HOSPITAL NATIONAL HEALTH SERVICE TRUST | ||
(Claimant/Appellant) | ||
and | ||
(1) FREDERICK ALEXANDER HAMMOND | ||
(2) JOHN RICHARD LERCHE | ||
(3) ANTHONY ROBERT HARRIS | ||
(4) ALAN MASSEY | ||
(5) ALFRED GEORGE HEPDEN | ||
(6) SYLVIAN REINHOLD | ||
(7) BRIAN ERNEST TEALE | ||
(8) WATKINS GRAY INTERNATIONAL (UK) | ||
(9) AUSTEN ASSOCIATES (A FIRM) | ||
(10) NORTH, NEIGHBOUR AND NICHOLSON | ||
(11) CLARKE NICHOLLS & MARCELL (A FIRM) | ||
(12) ARLINGTON PROJECT MANAGEMENT LIMITED | ||
(13) PROJECT MANAGEMENT INTERNATIONAL LIMITED | ||
(14) IVOR GORDON BERRESFORD | ||
(15) KEITH PEGDEN SMITH | ||
(16) AUSTEN ASSOCIATES LIMITED | (Defendants/Respondents) |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr M. Taverner QC and Mr R. Edwards (instructed by Fishburn Morgan Cole for the eighth, fourteenth and fifteenth defendants "WGI")
Mr A. Williamson (instructed by Davies Arnold Cooper for the 1st to 7th and 13th defendants/respondents "PMI")
Mr A. Bartlett QC and Miss J. Davies (instructed by Berrymans Lace Mawer for the ninth and sixteenth defendants/respondents "AA")
The 10th, 11th and 12th defendants were not present or represented.
____________________
Crown Copyright ©
ALDOUS LJ:
"1. The claimant's allegations against AA in relation to quality of co-ordination drawings be struck out.
2. The claimant's allegations against AA in relation to advice be excluded from consideration as a matter of case management.
3. The claimant's allegations against PMI and WGI in relation to quality of co-ordination drawings be struck out.
4. The claimant's allegations against PMI and WGI in relation to timing of co-ordination drawings be struck out.
5. The claimant's allegations against PMI in relation to advice be struck out.
6. The claimant's allegations against WGI in the alternative in relation to the extension of the time given on 6th April 1992 for mechanical and electrical drawings, be struck out.
7. The claimant's allegations against PMI and WGI in relation to the instruction to lay hydrotite be struck out."
The result of the judge's order was that only one of the mechanical and electrical disputes claims remained for trial, together with the Hydrotite dispute and the disputes relating to some of the extensions of time.
"Was the Board's provision of co-ordination drawings on the dates set out in paragraph 54.1 of the statement of claim in breach of clause 5.4 of the main contract?"
In his judgment of 18th December, 2000 the judge answered that question in the negative and then dismissed the claims in section E of the re-amended statement of claim against AA. He refused leave to appeal. Leave to appeal was subsequently given by this Court with the result that the Court had before it an appeal by the claimants against the order of 8th November and an appeal against the order of 18th December 2000.
The Procedure Adopted
"1.4 Court's duty to manage cases
(2) Active case management includes
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
3.1 The court's general powers of management
.
(2) Except where these Rules provide otherwise, the court may
(k) exclude an issue from consideration;
"9. It was agreed that the Experts have examined CO10 from the Statement of Claim at 55.1 and an agreed Schedule of Comments is attached.
10. It was agreed that this is all that can be examined in detail at the Experts' Meetings in the time available.
11. It was agreed that a further examination of areas . would provide a reasonable sample of the queries and clashes raised in the Re-Amended Statement of Claim and in the Re-Re-Amended Defence.
13. It was agreed that in view of the progress that had been made, it should be proposed that further Experts' Meetings would be of assistance to the Court."
"17. In my judgment the evidence contained in the reports of Mr Down and Dr Arnold does not establish any standard or standards which any reasonably competent mechanical services engineering consultant would meet in relation to preparing the co-ordination drawings with sufficient clarity to enable the court to reach a reliable conclusion as to whether AA [Austen Associates], in preparing the drawings which it did prepare, fell below the standard of the reasonably competent mechanical services engineering consultant. In the absence of worthwhile evidence of such a standard or standards, it seems to me that the AA Quality Complaint cannot succeed, because there is no yardstick by reference to which AA's actual performance can be judged. Consequently, in my judgment the AA Quality Complaint being incapable of success, it, and those other claims which depend upon the success of the AA Quality Complaint, namely the PMI Quality Complaint and the WGI Quality Complaint, should be struck out."
The Dispute
"CO-ORDINATION DRAWINGS shall mean drawings prepared with intent to show clearly the inter-relation of two or more engineering or public health systems.
The clarity of the Co-ordination Drawings shall be such that the Contractor/Sub-contractor may use them for construction purposes although it is recognised that the provision of Installation Drawings may be necessary.
The drawings shall be prepared to a scale of not less than 1/50 and shall depict the services in their allotted and co-ordinated position using conventional semi-diagramatic style.
Where any dimension in cross-section is 150mm or more, duct work, electrical trunking and pipe work shall be shown in double lines. Drawings shall demonstrate that adequate space has been made available for access and maintenance.
The use of drawings having a superimposed grid and an associated convention for the indication of actual positions of ductwork and piping in relation to the grid may be used to reduce the necessity for dimensions.
Additional drawings to a scale of 1/20 may be prepared to amplify detail in certain areas of the Co-ordination Drawings if, in the opinion of the Consulting Engineer, these are necessary for clarity. Similarly, sketch details may be prepared to indicate typical arrangements, or repetitive assembly details e.g. trap sets, PRV sets, heater or calorifier connections. These need not necessarily be to scale and will be issued as a guide to installation only.
Note: the drawing requirements for co-ordination purposes will vary from project to project. It is not possible therefore wholly to define the appropriate provision in terms of numbers, extent and service groupings."
"2.1 In my opinion, the design as evidenced by the drawings, prepared by AA as required prior and subsequent to tender was not to the standard required by the terms of their appointment, nor were the drawings to a standard that would be expected of a reasonably competent mechanical and electrical services engineer.
2.2 The drawings eventually produced, post-contract, in collaboration with the contractor were to a higher standard but still did not include the information that was required in co-ordination drawings."
"2.8 The problems and difficulties which TWC [Taylor Woodrow] encountered as a result of the failure of AA to produce proper co-ordination drawings required substantial additional work over a period of several months and, broadly, would have increased the drafting work for TWC by a factor of between 2 and 3 in order to produce information which they needed for the works.
2.9 AA regularly failed to produce adequate information sought by PMI and WGI and the rest of the design team during the design stage.
2.10 AA and WGI failed to produce properly co-ordinated information in time to enable TWC to plan the construction of the works properly and efficiently.
2.11 The above ceiling M&E installations on the project were extensive and congested, making the task of co-ordination and installation more difficult and exacting than might be considered typical, even for a hospital project."
"3.6 The effect of the Supplementary Annexure was that the Consulting Engineer had to produce co-ordination drawings in compliance with the specified requirements. These drawings were to be used by the Contractor for installation purposes, including, where appropriate or necessary, the preparation of installation drawings (as I explain below). The theory behind this was to ensure that co-ordination information was provided so as to avoid, so far as practicable, the over-spend which concerned the Parliamentary Public Accounts Committee. The work of preparing co-ordination drawings was extensive and a significant additional fee was agreed between DHSS and the ACE for this onerous task."
"4.11 In the final analysis the crucial test of co-ordination drawings is whether the Contractor can rely on them substantially to show where the services are to be installed at construction stage. Little input should be required by the contractor in the production of the Contractor's installation drawings by way of determining the position of the services."
"5.1 As previously stated in this report, the true test of AA's co-ordination drawings is whether the Contractor was able to use the AA drawings for construction purposes without difficulty. There are a number of tests that have been applied that indicate that the AA drawings fail this test."
"6.5.11 However, the lack of information and number of actual clashes shown on the AA co-ordination drawings lead me to the opinion that these drawings were below that of the standard which should have been achieved by reasonably competent consulting engineer[s] under AA's terms.
6.5.12 Whilst these problems were ultimately overcome by AA and TWC, the time it took to do so considerably exceeds the 14-16 week period suggested above."
"5.28 Did AA's drawings fulfil their contractual obligations?
(a) The drawings were inadequate and not to the standard described in AA's Agreement. They did not meet the mandatory requirements described in HN(78)6 in particular:
(1) they lacked sufficient clarity such that they may have been used directly for construction purposes with or without installation drawings,
(2) many of the services were not depicted in their allotted and co-ordinated positions and
(3) they failed to demonstrate that adequate space has been made available for access and maintenance.
(b) The drawings did not show the sizes of the services they were intended to co-ordinate.
(c) The drawings did not show the spatial relationship of the services to one another without recourse to other drawings.
(d) The drawings when read with other drawings had an unusually high number of errors which most often resulted in services clashing.
(e) A detailed examination of the drawings is necessary to identify the inadequacies of co-ordination.
(f) The drawings even when read in conjunction with other drawings require further interpretation to establish locations of services. The allotted locations are not clear in many instances.
.
5.40 The co-ordination drawings that AA eventually produced presented the Contractor with an unduly onerous task the scale of which I believe could not have been anticipated. Experienced engineers from my practice had great difficulty in understanding and interpreting AA's co-ordination drawings to enable them to identify the spatial relationships between services and locate errors. Demonstrating spatial relationships is the primary purpose of co-ordination drawings and something that ought to have been immediately evident to a reasonably competent engineer or contractor. In the event the Contractor was obliged to produce supplementary co-ordination drawings which ought to have been produced by AA.
7.1 Were AA in breach of the obligations in the Terms of their Agreement with the hospital in respect of co-ordination of the M&E services and the preparation by AA of co-ordination drawings? For the reasons explained above it is my opinion that AA were in breach of the terms in three main respects:
(a) They failed to adequately co-ordinate the services at the appropriate time i.e. when preparing their single services drawings.
(b) The co-ordination drawings they produced were inadequate.
(c) The drawings contained numerous errors and omissions."
The AA Quality Claim
"We understand from Mr Stephen Edwards [AA's expert] that the M&E experts for all three parties see little or nothing to be gained by looking at a larger sample of drawings than those that have already been considered in detail. Their findings, they believe, can be extrapolated so as to give a sufficient indication of the general picture. As we understand it, the principal difference between the experts is at the conceptual level and lies in their different understandings of what AA's drawings ought to have been like. In the circumstances the cost and Court time involved in looking at a larger number of drawings cannot be justified. Do you agree?"
"If, as Mr Down says it is a matter for the professional judgment of the engineer the extent and type of information the co-ordination drawings need to show, the scope for saying that an engineer has been negligent because he has not shown as much information as another engineer might have, or because he has not shown information of a particular type seems to be limited. However, it is obviously possible that there might be some particular type of information which no reasonably competent mechanical services engineering consultant could have failed to recognise needed to be shown, or some minimum volume of information which was plainly necessary."
"4.6 The co-ordination drawings also should show the dimensions/sizes of the services and, of necessity, the relationship of the services to the space in which they were to be placed In my experience co-ordination drawings at a scale of 1/50 are capable of having all the necessary information shown in a clear manner but, if AA had not considered this to be possible, drawings to a larger scale were required by definition of co-ordination drawings.
4.7 This is why the Consulting Engineer is given an element of discretion. Hospitals in general contain very complex M&E services installations. However the extent of the complexity varies from department to department. Operating theatre suites and particularly pathology laboratories contain many specialist M&E and medical services installations. Other areas such as naturally ventilated ward blocks are relatively lightly serviced. It is for this reason that appendix A states:
'Note The drawing requirements for co-ordinated purposes will vary
from project to project and it is not possible therefore wholly to define the appropriate provision in terms of numbers, extent and service groupings.'"
"4.24 Trade practice: Comparison of co-ordination drawings produced by Consulting Engineers will show differences in 'draughtsmanship' and in the techniques of presentation. Whatever method of detailing co-ordination drawings might be adopted, the end result has to be a co-ordinated design presented with clarity."
"In my experience the minimum standard that I should expect to see would be drawings to a scale of 1:50, with pipes/ducts above 150mm drawn double-line and pipes/ducts above 50mm drawn to accurate centre-lines in plan, with a 300mm grid to allow measurement of location and with inverts, gradients and cross-sections to show levels. Major plant would be drawn using dimensions provided by manufacturers."
"4.8 A number of paragraphs in the definition of co-ordination drawings indicate the degree of accuracy that co-ordination drawings should be drawn to. One states:
The drawings shall be prepared to a scale of not less than 1/50 and shall depict the services in their allotted or co-ordinated positions using the conventional semi-diagramatic style.
This clause states 'their allotted or co-ordinated positions.' I understand this to mean that they should be shown in the actual intended positions. Without the use of dimensions it should therefore be possible to scale off the drawings to an accuracy of +50mm or less. I do not take the term semi-schematic to imply that the positions are semi-schematic, or semi-accurate. The term semi-schematic refers to the essential draughting freedom needed to depict the layouts clearly.
4.9 If drawings do not retain a certain licence to show the position of the services in a semi-schematic way, on complex installations, the drawings will become unintelligible. To overcome this difficulty a significant number of section drawings, or part-sections, and details are required in order to identify the spatial inter-relationship of the services. (The AA drawings were inadequate in this respect, as they did not include sufficient sections to identify the vertical setting out of the M&E service installations properly.)"
"I have with the assistance of Mr Dix, prepared drawings PGD01 and PGD02 to amplify my report on the question of the extent of Sections. Drawing PGD01 is based on AA's drawing 668.I/CH/04 annotated to identify the relevant clashes and other queries that are listed in the claim. Drawing PGD02 shows in red the sections provided on the AA drawings and further sections, shown in green, to indicate the minimum additional sections that I consider to be essential for an understanding of the vertical location of the services on the Co-ordination drawings."
"22. Another general criticism made in the Re-Amended Statement of Claim of the co-ordination drawings produced by AA is that:
'they contained no sizes for pipework, ductwork or cables, no dimensional or ductwork locations were shown.'
Complaints along those lines seem to be precluded, in large measure, by the following terms of the agreement between experts to which I have referred:
'(6) It was agreed that full dimensioning of the M&E services on the co-ordination drawings was not normal practice.
(8) It was agreed that some consulting engineers showed invert levels for M&E services on their drawings, other consulting engineers did not. PGD [i.e. Mr Down] stated that he did, SCE [Mr Stephen Edwards, instructed on behalf of AA] stated that he generally did not '
However, even if the possibility of some complaint survived the terms of that agreement, in fact neither Mr Down nor Mr Arnold, in their respective reports, identified any particular dimensions as missing from a co-ordination drawing prepared by AA which he contended that no reasonably competent mechanical engineering services consultant could have omitted, or any criteria by reference to which a Court could decide whether the absence of some particular dimension denoted negligence, so that, once more, no evidence is put forward on behalf of the Claimant which could justify any conclusion that AA had been negligent in omitting some dimension from a co-ordination drawing."
"4.10 Another relevant paragraph in appendix A of the Annexure that describes the accuracy required states:
The use of drawings having a superimposed grid and an associated convention for the indication of actual positions of ductwork and piping in relation to the grid may be used to reduce the necessity for dimensions.
This recognises that a grid may be a substitute for showing dimensions. If a grid is to be used then it must be such as to enable the contractor to scale off it to the required degree of accuracy, which would be of 50mm or less. At the time it was common practice for consulting engineers to use a superimposed grid on the drawings. I agree that this was an option and not obligatory, but most consulting engineers chose to adopt this method, as it satisfied the needs for the brief and avoided the need for dimensioning the drawings. It should be noted that the clause states 'the actual positions of ductwork and piping in relation to the grid'. There is no mention of intended positions, or schematic positions. The term used is actual positions. As it was the AA drawings did not use the superimposed grid, nor did they contain any significant dimensions. The AA drawings therefore failed in this respect."
"6.5.4 It would be unreasonable to expect that any complex co-ordination drawing would be totally free of co-ordination clashes. This is particularly so in the case of drawings detailing complex M&E services installations in hospitals. (I have borne this in mind when considering whether AA's co-ordination drawings fell below an acceptable standard.)
6.5.5 Given this situation it should have been reasonably foreseeable that some queries would be raised on the RBH phase 1 project, or any other similar project."
"In my judgment, yet once more the evidence relied upon on behalf of the Claimant just does not enable the Court sensibly to determine whether AA fell below the standard of the reasonably competent mechanical engineering services consultant in relation to the number of clashes and errors which were to be found in the co-ordination drawings which it produced."
"25. Given that, in Mr Down's opinion, a level of clashes or errors is acceptable without an engineer being negligent, I just have no idea what number of clashes or errors marks the threshold between what is considered not to be negligent and what is thought to be careless. I might have expected that perhaps clashes or errors of a particular type would be considered evidence of negligence, but that is not something which was covered in the report of Mr Down or in that of Dr Arnold."
The AA Timing Claim
"Was the Board's provision of co-ordination drawings on the dates set out in paragraph 54.1 of the statement of claim in breach of clause 5.4 of the main contract?"
"5.4 As and when from time to time may be necessary the Architect/Supervising Officer without charge to the Contractor shall provide him with 2 copies of such further drawings or details as are reasonably necessary either to explain and amplify the Contract Drawings or to enable the Contractor to carry out and complete the Works in accordance with the Conditions."
It was established that AA was obliged to provide the co-ordination drawings at such time or times as would enable Brompton to perform its obligation to Taylor Woodrow under clause 5.4. It was alleged by Brompton that AA had failed to do this. They should, according to Brompton, have supplied the drawings by 4th May 1987, whereas the first drawings were not provided until 14th August 1987.
"10. It is, I think, plain that the obligation on the part of the Board contained in clause 5.4 of the Main Contract to provide further drawings or details "As and when from time to time may be necessary" was an obligation which required to be performed as and when Taylor Woodrow in fact, having regard to the progress which it had made with the various operations which it had to undertake in order to carry out and complete the Works, objectively needed to have such drawings or details. As it happens, that is not only my view but is also the view expressed by Vinelott J. in London Borough of Merton v Stanley Hugh Leach Ltd (1985) 32 BLR 68 at page 88. Accordingly, unless and until Taylor Woodrow had planned how it was going to undertake the mechanical and electrical engineering services installation, and, in particular, when it was going to prepare its installation drawings, to which alone the co-ordination drawings were relevant, it could not possibly need the co-ordination drawings. Further, it seems to me that, while a contractor like Taylor Woodrow might contend that it needed to have all the information at the outset of a project, and, if it did so contend it would be necessary to consider whether such contention was well-founded, because it might not be, it is wildly improbable that a contractor would actually have required information before he said he did."
The PMI Timing Claim
The WGI Timing Claim
The AA Advice Claim
The PMI Advice Claim
The Hydrotite Claim
"The fact that Mr Plant (Brompton) did not ask suggests to me that, in practical terms, the Board had little alternative but authorise the issue of an instruction if it wanted the new hospital to be completed in the foreseeable future."
"Mr King does not state any grounds for his professed belief. He does not describe any process which had to be gone through before authority for the issue of instruction could be given or identify anyone other than Mr Plant who would have been involved in any such process. I am consequently left with no justification for acting on the word of Mr King, although I do not doubt that he genuinely believes what he has said in his witness statement. In the result therefore, it seems to me that the Hydrotite claim must be struck out also against PMI."
Conclusion
CLARKE LJ:
The Correct Approach
"(2) The court may strike out a statement of case if it appears to the court
(a) that the statement of case discloses no reasonable grounds for bringing or defending a claim."
CPR 24.1 provides that Part 24 sets out a procedure by which a court may decide a claim or a particular issue without a trial and CPR 24.2 provides that the court may give summary judgment against a defendant on the whole of a claim or on a particular issue if it considers that the claimant "has no real prospect of succeeding on the claim or issue".
"A party may believe he can show without a trial that an opponent's case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate."
Equally paragraph 5.1 of the practice direction on case management (at 26PD-002) provides that part of the court's duty of active case management is the summary disposal of issues which do not need full investigation and trial. Paragraph 5.2 states that the court's powers to dispose of issues in that way include those under CPR 3.4 and 24.2.
The AA Quality Claim
"10. A matter for concern to me from an early stage of this sub-trial, once I had digested the claimant's pleadings, had read the written submissions of the various parties, had heard the oral submissions of the parties' counsel in opening their respective cases and, as I was asked, had read the parties' experts' reports prepared on behalf of the various parties, was the question whether the material upon which the claimant sought to rely as proving its case against a particular defendant in relation to a particular matter was actually such as, if it were the only material before the court, would prove the claimant's claim in respect of that matter. Consequently, it seemed to me that, quite apart from the applications made on behalf of the various defendants, I should consider also whether to exercise of my own volition my powers of case management
11. I invited submissions as to by what standard or standards I should decide whether to allow claims which the claimant apparently wished to purse in this trial to proceed. Mr Andrew Bartlett QC, who appeared on behalf of AA, submitted, as it seems to me rightly, that I should consider, in relation to each of the claims which the claimant had indicated in the short summaries to which I have referred it wished to pursue, whether, if, on the material upon which Mr Edwards-Stuart indicated the claimant desired to rely, a submission of no case to answer had been made, I should have acceded to it. "
"If, notwithstanding the above, the judge ought to have adopted the real prospect test, as that test is normally understood in relation to an application for summary judgment under CPR Part 24 in advance of the trial (Mr Bartlett's emphasis), then AA concede that the evidence of Mr Down was sufficient to show a real as opposed to a fanciful prospect of success in that sense."
If I understood him correctly, Mr Bartlett subsequently said that that concession was limited to the situation as it would have been if the matter had been considered before the trial. It was no doubt for that reason that the expression 'in advance of the trial' was put in italics.
The Other Claims
LAWS LJ: