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England and Wales High Court (Technology and Construction Court) Decisions
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Case No: 1997/ORB/391
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
TECHNOLOGY and CONSTRUCTION COURT
Date: 13 November 1998
B e f o r e :
THE HON MR JUSTICE DYSON
POZZOLANIC LYTAG Limited
- v -
BRYAN HOBSON ASSOCIATES
Richard WILMOT-SMITH QC (instructed by Rowe and Maw for the Plaintiff)
David TUCKER (instructed by Kennedys for the Defendant)
"I direct pursuant to RSC Order 68 rule 1 that no official shorthand note shall be taken of this judgment and that copies of this version as handed down, may be treated as authentic.
Mr Justice Dyson:
The defendants ("BHA") are a firm of civil and structural engineers. The plaintiff ("PL") buys pulverised fuel ash ("PFA") from power stations, and sells it to the construction industry for use in concrete. PL is a wholly-owned subsidiary of Boral (UK) Ltd ("Boral"). Save where indicated, it is unnecessary to distinguish in this judgment between PL and Boral. Before the events with which this case is concerned, neither Boral nor PL had any experience of, or expertise in construction or insurance matters. Their ultimate holding company is based in Australia. That company does have an insurance department.
In 1990, PL was negotiating with Powergen PLC for the purchase of PFA from a power station known as "Fiddlers Ferry". As part of the purchase, it was necessary for PL to store the PFA on the Fiddlers Ferry site, and to this end, PL needed to have designed and constructed handling and storage facilities ("the Works"). In 1991, BHA were engaged by PL to carry out services in relation to the design and construction of the Works. It will be necessary to consider in some detail the precise scope of these services.
The Works included the construction of a dome or spherical silo for the storage of the PFA, and the necessary groundworks. On 10 July 1991, PL accepted the tender for the construction of the dome that had been submitted by Horrall Harrington ("HH"), whose principal office was in the United States, and who traded as HP Domes Co. The resultant contract incorporated the JCT Standard Form of Contract with contractor's design liability. The design of the dome was carried out by HH, and it was checked by his consultants, Associated Structural Consultants Ltd ("ASC").
The groundworks were carried out, and the dome was erected. On 7 April 1992, the dome collapsed. PL contends in these proceedings that the collapse has caused losses in excess of £600,000. I am asked to assume that the collapse was caused by defects of design which would ordinarily be covered by indemnity insurance of the type required by clause 21A.1 of the JCT 1980 Standard Form of Contract. HH is a man of straw. The only relevant insurance that was in place was a policy which named ASC as the insured.
It is submitted on behalf of PL that (i) HH was not insured under this policy; and (ii) BHA was negligent and/or in breach its contractual duty of care in failing to ensure that indemnity insurance was in place which would cover any liability of HH for defective design. This judgment is confined to certain preliminary issues, but before I examine these in detail, I need to summarise the narrative that bears on them. The case raises questions as to the scope of the duty owed by project managers to their clients to ensure that suitable insurance arrangements are put in place by contractors.
The relevant history
On 15 May 1990, Mr Starkey, who was PL's production engineering manager met Mr Rhodes, a partner in BHA, to discuss the project. On the following day, Mr Rhodes wrote a letter setting out BHA's proposals for the provision of civil and structural engineering consultancy services for the project. At this time, the Works had not been defined. At some stage, it seems that HH made an unsolicited approach to PL, saying that he would be able to design a suitable dome. HH produced a preliminary drawing for PL. Mr Starkey passed details about HH on to BHA.
In January 1991, Mr Rhodes decided that the contract for the Works should be on the JCT 1980 Standard Form of Building Contract, Private with Quantities, and with the Contractor's Designed Portion Supplement applicable to the dome. The other part of the Works was designed by BHA. On 28 January 1991, BHA sent out preliminary enquiries to prospective tenderers. These included HH. Mr Rhodes envisaged at this stage that HH would be a subcontractor to the selected main contractor. In the light of the responses to the preliminary enquiries, on 19 April 1991, BHA sent out 4 invitations to tender.
At about the end of May, Mr Starkey entered into negotiations with HH with a view to the possibility of contracting directly with him for the design and construction of the dome. On 2 June, HH wrote to PL offering to do the work for £195,000. The letter included the following:
"For your information, I will retain Associated Structural Consultants Ltd, Wolverhampton, as my consultant in design work. The drawings will be on their titleblock and their Professional Indemnity Insurance (£1 million) will cover any claims from alleged deficiencies of design in my work."
1. Mr Starkey informed BHA of this development. On 6 June, Mr Rhodes wrote to Mr Starkey setting out BHA's proposed terms of engagement. For a lump sum fee of £9450, they offered to do all the work through to the settling of the final account(s). As for consultancy services yet to be performed, these would include "any necessary negotiations" with HH, and "contract and project management of the two civil contracts (dome and groundworks)". Save for a clarification of the breakdown of the elements of the fee, these terms were never the subject of later discussion. They were clearly accepted by PL.
2. On 14 June, Mr Rhodes invited HH to a meeting to discuss inter alia the conditions of contract and insurance of the Works. HH responded by a fax on the same day asking Mr Rhodes to cover some of the topics in advance of the meeting by fax, and to outline the insurance requirements. Mr Rhodes replied by sending extracts from the proposed conditions of contract. These included the insurance clauses. Clause 21A provided:
3. "1. Without prejudice to his liability to indemnify the Employer under Clause 2.6 the Contractor shall maintain and shall cause any subcontractor to maintain such insurances as are necessary to cover the liability of the Contractor or, as the case may be, of such subcontractor in respect of his obligations under Clause 2.6.
4. 2. As and when he is reasonably required to do so by the Employer the Contractor shall produce and shall cause any subcontractor to produce for inspection by the Employer documentary evidence that the insurance required by Clause 22E.1 are properly maintained, but on any occasion the Employer may (but not unreasonably) require to have produced for his inspection the policy or policies and premium receipts in question".
5. The reference to Clause 22E was in error for Clause 22A (the Contractors' All Risks Insurance clause). Clause 2.6 provided:
6. "The part of the Works comprising the Contractor's Designed Portion shall be fit for the purpose for which they are required."
7. In his reply, Mr Rhodes also wrote: "Regarding clause 21A-your consultants ASC have probably got professional indemnity cover which meets this specification".
8. On 16 June, HH responded by fax to Mr Rhodes enclosing a copy of his letter dated 2 June to Mr Starkey. In relation to Mr Rhodes' observation about clause 21A insurance, he merely made reference to his earlier letter of 2 June. A copy of the fax of 16 June was also sent to PL.
9. On 24 June, there was a meeting between Mr Rhodes, HH, Mr Johnson and Mr Starkey. Mr Johnson was employed by Boral as Group Purchasing Manager. His principal concern in relation to the project was commercial: how much would it cost, and when would it be completed. At the meeting, HH confirmed that ASC would check his design and that the drawings would be on ASC paper. It was agreed that HH would ask ASC to send details of their (ie ASC's) professional indemnity insurance, and provide confirmation that it was current. It was resolved that once matters had been agreed orally between the parties, BHA would draw up a schedule of relevant documents to be attached to a form of tender which HH could sign. Acceptance of that tender document would constitute the contract.
10. On 2 July, HH telephoned Mr Johnson, and confirmed that he had the insurance cover required for public and employer's liability. Nothing was said about professional indemnity cover. On 3 July, BHA sent to HH the proposed form of tender and list of documents to be incorporated in the contract.
11. On 9 July, BHA received a copy of a letter from insurance brokers confirming that HH had insurance cover in respect of Contractors' All Risks, property, employers' liability and public liability. On the same day, they also received a copy of the schedule attached to the professional indemnity policy which named ASC as the insured, and gave a limit of indemnity in the sum of £1M. The other important event that took place on 9 July was HH's signing of the tender documents.
12. On 10 July, Mr Johnson wrote to HH c/o ASC accepting HH's tender. In paragraph 4 of the letter, he wrote:
13. "You are requested to have the enclosed Certificate Relating to Contractors Insurance completed by your Insurance Company or Broker and returned to me. In addition, please provide evidence of adequate insurance to cover design risks."
14. Enclosed with the letter was a proforma certificate which was intended to relate to all the insurance cover required by the contract, except the insurance in respect of design risks. Mr Johnson sent a copy of his letter to Mr Rhodes, and it evoked no response. On 11 July, HH's brokers sent the certificate duly completed. On 16 July, ASC replied to Mr Johnson's letter of 10 July. Enclosed with the ASC letter was a letter dated 12 July from their brokers to themselves. It included:
15. "We refer to your letter of today's date and confirm that the policy will operate for any amount that you may become legally liable to pay arising from a claim made against you during the currency of the policy as a direct result of any negligent act error or omission in the professional conduct of your business."
16. Mr Johnson did not send a copy of this reply or its enclosures to Mr Rhodes.
17. The Works were carried out, and, as I have already stated, on 7 April 1992, the dome collapsed.
1. Did BHA owe a duty to PL to take reasonable care to ensure that as required by clause 21A.1, there was in place insurance which would cover HH's liability in respect of his obligations under clause 2.6 of the conditions of contract?
2. Has PL proved that there was no insurance in place to cover HH's liability under clause 2.6?
3. If there was no insurance in place, was the real or effective cause of the loss PL's own failure to ensure that the relevant insurance was in place?
4. Has PL failed to take reasonable steps to mitigate its loss by starting proceedings in tort against ASC?
5. Did PL contribute to its losses by contributory negligence?
The scope of BHA's duty in relation to insurance
18. The starting point is the terms of engagement put forward by BHA in their letter of 6 June. The duties which they offered to perform included any necessary negotiations with HH to place a contract for the dome, and contract and project management.
19. Both parties called expert evidence, which was directed in part to the question whether an engineer appointed to undertake contract and project management had a duty to ensure that all insurances required of the contractor by the contract documents were in place. Mr Haggar, who was called on behalf of PL, said that BHA was under such a duty. Mr Billingham, who gave evidence for BHA, was of the opposite opinion.
20. The view of Mr Billingham was largely based on a selective quotation from a publication entitled "Project Evaluation and Development" by Alexander Rougvie (1987), and a misapplication of the 1996 edition of the Code of Practice for Project Management for Construction and Development, which was in any event not the appropriate edition of the Code of Practice in relation to events which occurred in 1991. Mr Rougvie reproduces a list of duties and responsibilities to be undertaken during the management of a construction contract. The author counsels against applying the list rigidly, since it should not be assumed that all project managers will supply all the services noted, or that the list is exhaustive. His list does, however, include:
21. "(l) Compile all contract documents....Establish the clients' requirements
22. on such matters as...insurance requirements...
23. (o)....Ensure the contractor has complied with insurance and bonding
25. Mr Billingham asserted in his report (para 3.2(b)) that this list should be regarded as an aide-memoire to anyone providing project management services. Mr Haggar did not disagree, and I see no reason to do so either. I accept the warning against slavish application of the list that Mr Rougvie gives. But in general, and subject to any special arrangements made between client and project manager, I accept this as a good working rule as to the scope of the duties to be undertaken by a project manager in relation to insurance.
26. In my judgement, it is quite clear that BHA were appointed as project managers in this case. Mr Rhodes used the phrase "project management" himself in his letter of 6 June. I see no reason to suppose that he did not intend the phrase to bear the meaning which is now well understood in the industry.
27. In his report, Mr Billingham relied on the 1996 edition of the Code of Practice (although he mistakenly referred to it as the 1992 edition). He relied on a passage in the 1996 edition in order to support his conclusion that the role assumed by BHA was that of Project Coordinator, not Project Manager. The particular words in the Code which he emphasised were:
28. "If the Project manager appoints other consultants, the service is defined as
29. "project management". If the Client appoints other consultants, the service
30. is defined as "project co-ordination"."
31. In this case, no other consultants were appointed. This passage, therefore, has no application. In any event, the 1992 Code of Practice (which was closer in time to the events with which this case is concerned) gives a different definition of project manager. This is no more helpful to Mr Billingham than the definition that he relied on. The 1992 Code lists typical duties to be performed by project managers. They include "arrange insurance and warranties".
32. I conclude, therefore, that the duties which by the letter of 6 June BHA offered to undertake included the duty of ensuring that the insurance required of HH by the contract was in place. Mr Rhodes said in evidence that he thought that the only duty of BHA in relation to insurance was to obtain evidence as to the proposed insurance arrangements, and pass the evidence on to PL for its consideration. BHA, he said, did not have the expertise necessary to assess the adequacy of the proposed insurance. I cannot agree with the opinion of Mr Rhodes. If a project manager does not have the expertise to advise his client as to the adequacy of the insurance arrangements proposed by the contractor, he has a choice. He may obtain expert advice from an insurance broker or lawyer. Questions may arise as to who has to pay for this. Alternatively, he may inform the client that expert advice is required, and seek to persuade the client to obtain it. What he cannot do is simply act as a "postbox" and send the evidence of the proposed arrangements to the client without comment.
33. I must now go on to consider whether the scope of the services included in the letter of 6 June was reduced by the removal from the responsibility of BHA the duty of ensuring that adequate insurance was in place. It is conceded by Mr Tucker that the terms of BHA's contract of engagement were not expressly varied either orally or in writing. He submits, however, that they were modified by conduct. The conduct on which he principally relies is Mr Johnson's letter of 10 July. He says that this letter shows that PL took over the responsibility for ensuring that the insurance required of HH by the construction contract was in place, and that Mr Rhodes indicated his willingness to agree to this reduction in his duties by acquiescing in this assumption of responsibility by Mr Johnson.
34. I cannot accept this analysis of the effect of the letter of 10 July and its immediate aftermath. The background to the letter is important. After sending his letter of 6 June, Mr Rhodes involved himself in the insurance issues. He sent HH the fax dated 14 June (with a copy to PL), and received HH's reply of 16 June. It will be recalled that in his fax, Mr Rhodes expressed the opinion to HH that ASC probably had insurance cover which would meet the clause 21A requirement. The meeting of 24 June was convened by Mr Rhodes inter alia in order to discuss insurance. At this meeting, it was agreed that HH would obtain details from ASC of ASC's insurance cover. All of this was entirely consistent with BHA accepting responsibility for ensuring that the necessary insurance arrangements were in place. After the meeting, the schedule to the ASC policy was sent to BHA. Thus, at the time of his receipt of the schedule on 9 July, nothing had happened to indicate that the terms of BHA's engagement had been modified, or that PL had wrested from BHA any part of their duties as project managers.
35. Mr Rhodes sent a copy of the schedule to Mr Johnson without any comment. This is not surprising, since Mr Rhodes was of the opinion that the schedule provided the confirmation that he had sought, that ASC had in place a current professional indemnity policy, which satisfied the requirements of clause 21A.1. So far as Mr Rhodes was concerned, he had ensured that the clause 21A.1 insurance was in place, and there was nothing more to do on that score. No doubt, he sent a copy of the schedule to Mr Johnson for information. He certainly did not send it because the responsibility for ensuring compliance by HH with its insurance obligations had been or was being transferred to PL.
36. Mr Johnson had no specific recollection of when he received the copy of the schedule. I find that he probably received it after he wrote his letter of 10 July. He said in evidence that he would have been unlikely to ask for evidence of "adequate insurance to cover the design risks" if he had already received the copy of the schedule. I accept this evidence. Mr Johnson might have been better advised not to become involved in seeking evidence about insurance at all. I cannot, however, agree with Mr Tucker that, by the request contained in the letter of 10 July, Mr Johnson effected the transfer to PL of BHA's responsibility as the project manager for ensuring that the insurance arrangements satisfied the requirements of clause 21A.1 of the contract. Mr Johnson was not asked by Mr Rhodes to obtain evidence that adequate insurance was in place. In the absence of such a request, it is difficult to see how the mere fact that Mr Johnson wrote the letter could mean that there was a transfer of part of BHA's responsibilities to PL. Such a transfer would have had to be consensual. The reality is that all that Mr Johnson was doing when he wrote the letter was seeking written confirmation that ASC had design liability insurance in place. He had been led to believe by Mr Rhodes that, if that confirmation was forthcoming, the insurance would satisfy HH's obligations under clause 21A.1.
Was insurance in place to cover HH's liability under Clause 2.6?
37. Mr Tucker submits that it has not been proved that the ASC insurance policy did not cover any liability of HH under Clause 2.6 of the contract. I do not agree. The schedule to the ASC policy clearly states that the "Insured" was ASC and nobody else. The letter dated 12 July 1991 which was sent by ASC to Mr Johnson under cover of the letter of 16 July shows clearly that the policy covered liability on the part of ASC. There is no evidence that the policy covered anyone other than ASC.
Was the lack of insurance caused by PL's own default?
38. Mr Tucker submits that the real cause of PL's loss was its own decision to seek evidence as to the adequacy of the insurance, and not to make further investigations following receipt of the reply to the letter of 10 July. In short, by writing the letter of 10 July, PL broke the chain of causation between any default on the part of BHA and the loss PL suffered as a result of the absence of the relevant insurance: the writing of the letter constituted a novus actus interveniens. It will be seen that this is a variation of the argument that, by sending the letter of 10 July, PL removed from BHA's duties the responsibility for ensuring that adequate insurance was in place.
39. I adopt the description of novus actus given in Clerk and Lindsell on Torts p54 at para 2-24:
40. "Whatever its form the novus actus must constitute an event of such impact that it rightly obliterates the wrongdoing of the defendant. The question which ought to be asked is whether that intervening cause was of so powerful a nature that the conduct of the plaintiffs was not a cause at all but was merely a part of the surrounding circumstances."
41. In my view, the writing of the letter of 10 July was an event of little or no real impact. All that Mr Johnson was doing was seeking evidence that ASC did in fact have current insurance in a sufficient amount to cover the design risks. He already believed that, if ASC had adequate cover, that would be apt to provide the requisite insurance cover against the design risks assumed by HH. The origin of that belief was the view expressed by Mr Rhodes in the letter to HH dated 14 June (which had been copied to PL), and the exchanges at the meeting of 24 June. It was that belief, which was fundamentally wrong, which influenced the writing of the letter of 10 July. The response to that letter did not materially advance matters. In particular, it made it clear that the beneficiary of the policy was ASC and nobody else. That added nothing about the identity of the insured to what appeared on the face of the schedule, which BHA sent to PL without comment. It is quite clear, therefore, that if ASC's brokers had sent the letters dated 12 and 16 July to BHA, the course of history would not have changed. In my view, this shows conclusively that the writing of the letter of 10 July was not a novus actus, and that Mr Tucker's causation argument must be rejected.
Failure to mitigate
42. It is accepted on behalf of BHA that HH has no assets. It is not, therefore, contended that PL should have sued HH. It is, however, submitted that PL should have sued ASC (i) for the negligent design of the dome, or (ii) for misrepresentation. As regards negligence, it is said that ASC was liable in negligence, because it assumed a responsibility towards PL for the design. In my view, there is no basis for such a claim. Mr Tucker relied on the letter of 16 July (and its enclosure) as founding his case on assumption of responsibility. It was, however, obvious at all times that ASC were acting as subcontractors to HH. There was no contract, and nothing akin to a contract, between ASC and PL. The letters relied on merely gave details of the nature of ASC's insurance cover. ASC might well have thought that PL had an interest in the consultant designer's insurance cover. If PL were to sue HH, PL might reasonably want to know that ASC was insured against any claim over by HH. The mere fact that ASC provided this information is a wholly insufficient foundation for the proposition that ASC assumed a direct responsibility for the design to PL. Even if I am wrong about that, at the very least, it is far from clear that ASC assumed a responsibility for the design to PL. It follows that any action by PL against ASC would have been fraught with uncertainty. At best from PL's point of view, it would have been speculative litigation. It is trite law that the duty to take reasonable steps to mitigate loss does not require a plaintiff to embark on speculative litigation.
43. The suggested claim in misrepresentation is quite hopeless. As I understand it, the argument is that, by its letter dated 16 July, ASC represented to PL that its professional indemnity policy would cover the design liability assumed under the contract by HH. In my view, the enclosed letter of 12 July made it clear that the policy covered the liability of ASC and nobody else. It certainly did not clearly represent that the policy would cover any liability of HH.
44. Once again, we have to return to the letter of 10 July. Mr Tucker submits that Mr Johnson could have checked the insurance position with Boral's Company Secretary and/or the insurance department at Head Office in Australia, and that if (as I have found) a mistake was made over the insurance question, Mr Johnson was as much to blame as Mr Rhodes.
45. Mr Wilmot-Smith QC submits that, as a matter of principle, there is no room for contributory negligence in this case since the negligence complained of is the very thing that the defendant was supposed to guard the plaintiff against. He relies on the judgment of Buxton LJ in Reeves v Commissioner of Police  2 WLR 401,411C-413A. In that case, the deceased was held in a police cell in the custody of the defendant's officers, who had been alerted to the possibility that he might commit suicide. He hanged himself. In an action in negligence, the plaintiff succeeded in the Court of Appeal by a majority (Morritt LJ dissenting). One of the issues raised by the defendant was contributory negligence. Buxton LJ held that, since the deceased's act was that which the defendant had been under a duty to take steps to prevent, the statutory defence of contributory negligence was inapposite. Lord Bingham of Cornhill CJ held that the Law Reform (Contributory Negligence) Act 1945 was applicable. Since Morritt LJ dissented and would have dismissed the action, he did not deal with contributory negligence.
46. Section 1 of the 1945 Act provides:
47. "Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons....the damages
48. recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share
49. in the responsibility for the damage..."
"Fault" is, by section 4:
50. "negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise
51. to he defence of contributory negligence."
52. I do not find it necessary to choose between Buxton LJ and the Lord Chief Justice, since I do not consider that the present case is analogous to Reeves. It is wholly artificial to say that BHA were under a duty to guard PL against the dangers of being satisfied with inadequate evidence as to design liability insurance. Their duty was to use reasonable skill and care in performing the services of a project manager, and in particular in ensuring that HH complied with his design liability insurance obligations. Buxton LJ was influenced by cases under the Factories Acts, where it has been held that an employer's duty to protect his employees from the consequences of their own acts of inattention should not be undermined by an appeal to contributory negligence. There are good policy grounds for this approach in that class of case. They do not exist in the present case.
53. An example that I put to Mr Wilmot-Smith in argument illustrates the problem of applying the approach adopted by Buxton LJ in a professional negligence case such as the present. Suppose that a firm of insurance brokers engages an engineer to act as project manager for the design and construction of its new office block. Suppose further that the design is carried out by the contractor, and checked by its consultant subcontractor, and that the engineer (who has no expertise in insurance matters) makes the same mistake in relation to the insurance against contractor's design risks as BHA did in this case. Suppose finally that, without transferring its responsibility for ensuring that the necessary insurances are in place, the engineer sends copies to his client of all the relevant policies, and the client considers the policies and expresses himself as satisfied with them. It seems to me that in those circumstances, it would be most surprising if the court were to conclude that the loss suffered by the client as a result of not having appropriate insurance in place was not partly as a result of the client's own fault.
54. On the facts of this case, however, I am satisfied that it was not as a result of any fault on the part of PL that the relevant insurance was not in place. The short answer to the allegation of fault against PL is that its belief that ASC's insurance policy would cover any design liability in HH was induced by BHA, and there was nothing to put Mr Johnson on notice that the opinion expressed by Mr Rhodes might be wrong. The fact that Mr Johnson could have asked Boral's Company Secretary or the Head Office in Australia to check the insurance position is not to the point. He had no reason to doubt the advice that he had received from Mr Rhodes. He did not have the expertise himself to form a view on the question whether ASC's insurance policy would cover any design liabilities of HH, and he had no reason to doubt the correctness of the view expressed by Mr Rhodes on the point.
55. It must follow that the plea of contributory negligence must be rejected.
56. In the result, the plaintiff succeeds on each of the preliminary issues that I have had to decide.
Postscript on experts' reports
57. This case provides a good illustration of a problem which is endemic in modern civil litigation. It seems that litigation without expert witnesses is becoming something of a rarity. Of course I accept that expert witnesses fulfil a vital role in many cases. I strongly suspect, however, that in many cases insufficient thought is given by parties (and in particular their legal representatives) first to the question whether an expert is really necessary at all, and secondly to what issues the evidence of the expert should be directed.
58. In the present case, the solicitors acting for BHA wished to call an engineer expert. The solicitors acting for PL contended that expert evidence was inappropriate. The learned Official Referee was persuaded to give leave for experts, but his order confined them to giving evidence about the common practice in the construction industry as to the role of consulting engineers, in particular in relation to the insurance of risks between employer and contractor. He also (and surprisingly) allowed the experts to deal with the question whether there had been contributory negligence by PL. It seems to me that the issue of contributory negligence by PL is one with which the engineer experts should plainly not have been concerned.
59. In my view, the only issue to which expert evidence could properly have been directed was whether there is a common practice in the engineering profession as to what engineers, who are engaged as project managers, do in relation to the insurance obligations of contractors. That would have been a short point, which should have resulted in short reports. Instead of this, the experts prepared quite elaborate reports dealing with a number of other issues, which were inappropriate, and which no doubt added very considerably to the costs of this litigation. Thus, Mr Haggar reviewed some of the correspondence in the case. Mr Billingham, produced a report which runs to 44 pages (excluding annexures), much of which is taken up with a recitation of the events and extracts from the correspondence.
60. The experts plainly went well beyond what the Official Referee had authorised. In view of the imminent implementation of the Woolf reforms, it is now opportune for everyone who is concerned in civil justice to take a hard look at the whole question of expert evidence. It seems to me that all have a role to play in this: case-management judges, legal representatives and the experts themselves. Prolix experts’ reports directed to issues with which they should not be concerned merely add to the expense of litigation. Everything possible should be done to discourage this. In appropriate cases, this will include making special orders for costs.