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Cite as: [1998] EWHC Technology 305

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Department of National Heritage v. Steensen Varming Mulchay, Balfour Beatty Ltd, Laing Management Ltd [1998] EWHC Technology 305 (30th July, 1998)

IN THE HIGH COURT OF JUSTICE OFFICIAL REFEREES' BUSINESS

QUEENS BENCH DIVISION

Before: HIS HONOUR JUDGE BOWSHER Q.C.

BETWEEN:

DEPARTMENT OF NATIONAL HERITAGE PLAINTIFFS

and

STEENSEN VARMING MULCAHY DEFENDANTS

(a firm)

and

BALFOUR BEATTY LIMITED FIRST THIRD PARTY

LAING MANAGEMENT LIMITED SECOND THIRD PARTY

This is the official Judgment of the Court. I direct that no further note or transcript is to be made.

Case number: 1996 ORB No. 121

Dates of Trial: 26 January - 18 May, 1998

Date of Judgment: 30 July, 1998

John Slater Q.C., Peter Hamilton, Simon Henderson instructed by Bannisters for the Plaintiffs and the first and second Third Parties
Philip Vallance Q.C., David Evans and John Whitting instructed by Berrymans Lace Mawer for the Defendants.

 

JUDGMENT

Dated: 30 July, 1998

INDEX TO JUDGMENT

Para

INDEX

CONCLUSION

1 INTRODUCTION

4 ABBREVIATIONS

5 THE PARTIES

10 THE CLAIMS

16 THE ISSUES

17 OTHER BODIES AND INDIVIDUALS PRINCIPALLY INVOLVED

27 DESCRIPTION OF SITE

37 GENERAL HISTORY OF THE PROJECT

68 DESCRIPTION OF THE ELECTRICAL INSTALLATION

CONTRACTS

81 CONSTRUCTION MANAGEMENT

84 LM'S CONTRACT

88 BB'S CONTRACT

95 SVM'S CONTRACT

101 CONSTRUCTION OF THE CONTRACTS AND COMMON LAW DUTIES

114 SVM'S EXPRESS DESIGN OBLIGATIONS

121 SVM'S DUTY TO EXERCISE REASONABLE SKILL AND CARE

135 SVM'S DUTY TO KEEP DESIGN UNDER REVIEW

142 COORDINATED AND COMPREHENSIVE DRAWINGS

145 SELECTION AND APPROVAL OF EQUIPMENT AND MATERIALS

156 SVM'S DUTY TO SUPERVISE AND INSPECT

BREACHES

177 WAS THERE BREACH BY SVM, BB, OR LM?

178 THE EVIDENCE CALLED ON BEHALF OF SVM

187 CAUSE IN LAW

194 CAUSE IN FACT

211 THE PLAINTIFFS' GENERAL CASE

220 THE NATURE OF THE DAMAGE TO CABLES

228 DEFECTIVE MATERIALS AND BAD WORKMANSHIP

251 PULLING CABLES

268 BB's CASE ON PULLING CABLES AND FRICTION BURNS

284 CRITICISMS OF DESIGN

285 LID DOWN TRUNKING

304 TRUNKING OVERLOADED WITH CABLES

343 ROUTES OF CABLES - LONG CABLES - COMPLEX TRUNKING

356 FAILURE TO CO-ORDINATE DESIGN-LATE DESIGN CHANGES

367 FAILURE TO REVIEW THE DESIGN

369 CRITICISMS OF SUPERVISION

416 CONTRIBUTORY NEGLIGENCE AND CONTRIBUTION

417 DAMAGES

422 REMEDIAL WORKS

APPENDIX A

1. The text of the Judgment of His Honour Judge Bowsher Q.C. is as follows:

His Honour Judge Bowsher Q.C.

CONCLUSION

2. For the following reasons given in this judgment, I find that the plaintiffs have proved no liability on the part of the defendants. I also find the first Third Party primarily to blame for the damage complained of in this action and the second Third Party and the plaintiffs secondarily to blame. Since the plaintiffs have made common cause with the Third Parties, I accept the invitation of their counsel to treat them as one and I give judgment for the defendants against the plaintiffs and the Third Parties. I also order that the defendants' costs be paid by the insurers of the plaintiffs and both Third Parties jointly, such costs to be taxed if not agreed.

3. The taxation of costs is to be on the Standard Basis save that the costs of Messrs. Thain, Ulyatt and Mullis relating to quantum incurred before trial are to be taxed on an indemnity basis.

4. If there should be a taxation of costs of this action, I invite the attention of the Taxing Master to the enormous assistance given to me by Leading and Junior counsel for all parties by their work both in and out of Court. Their oral submissions have been supported by most helpful written submissions and schedules with detailed references to the evidence which have been of enormous assistance to me. I am also grateful to the parties for having provided me with the assistance of a computerised transcript by Livenote. Without all that help, both from counsel and the shorthandwriters, the trial of this action would have taken very much longer, and would not have concluded, as it did, before the formal opening of the Library.

5. All concerned should be congratulated in preparing this action for trial in what was for them a very busy period of two years between the issue of the writ in January, 1996 and the commencement of trial in January, 1998.

INTRODUCTION

1 By this action a claim is made limited to 8,437,446.00 plus interest for damages arising out of alleged breaches of duty in the construction of the new British Library in London. The delays and rising costs of that project have been the subject of much public comment which has centred mainly upon difficulties with mechanically operated shelving in the basement storage areas and electric cabling. This case has been primarily concerned with electric cabling.

2 This action is in reality brought by insurers. Normally, that is not a matter which concerns the Court, but in this case it is a matter to be taken into account particularly because one of the issues is whether certain payments originating with insurers were in correct legal analysis to be regarded as discharging obligations of the plaintiffs. The claim is limited to 8.4 million because that is the cost to the insurers. From the point of view of the taxpayer reading this judgment, the involvement of insurers is relevant because it is important that the taxpayer should appreciate that nothing decided in this judgment immediately affects the financial position of the Crown.

3 In view of the notoriety of the British Library construction project, it is also important that I should stress that, despite the length of this trial, I have not been conducting a general inquisitorial enquiry into the causes and effects of delays in that construction project. My task is the limited task of deciding whether certain insurers are entitled, on the evidence put before me, to recover from the defendants 8.4 million expended by those insurers, and if so, whether the defendants have rights of recourse over against two of the many other companies involved in the project. I stress the words, "on the evidence put before me", because I do not have inquisitorial powers and the evidence put before me is not complete even in relation to those issues which I have to decide. I have not, for example, had the benefit of hearing evidence from Mr. Dusan Marcovic, the former partner in the defendant company responsible as consultant mechanical and electrical engineer for the project during a vital period from about 1988 to November, 1992. Moreover, the evidence adduced to prove the amount of the claim is incomplete and unsatisfactory.

ABBREVIATIONS

4 A list of abbreviations used in this judgment is attached to this judgment as Appendix A.

THE PARTIES

5 This action is brought by insurers by subrogation in the name of the Department of National Heritage, now renamed the Department of Culture Media and Sport. Many bodies have been concerned with the interest of the Library. When considering the legal effect of what has been done by and on behalf of the various bodies, it is important to bear in mind that the plaintiff is the Crown suing in the name of the Department of National Heritage (DNH): Crown Proceedings Act, 1947, section 13. DNH is not to be regarded as if it were a corporation in its own right: it is a manifestation of the Crown. In the history of the British Library Project (BLP) the Crown also appears in other manifestations and as acting through various agents. DNH itself took over responsibilities from the Department of the Environment upon the creation of DNH in 1992.

6 Although this is an insurance claim, the reputations, professional and business, of distinguished individuals and bodies are at stake.

7 The defendants, Steensen Varming Mulcahy (SVM), were appointed Mechanical and Electrical Consulting Engineers for the BLP. They are sued for alleged professional negligence in breach

of contract and at common law. The defendants are sued as a firm. There were two partners, Mr. Michael Carver and Mr. Dusan Marcovic. Since 1992, the practice has continued through limited liability companies. Until recently, Mr. Carver was Managing Director of SVM PLC, a holding company for SVM Partnership Limited and other Group companies. Those companies are not concerned with this action.

8 The defendants in turn joined Third Parties. The first Third Party, Balfour Beatty Limited (BB), is part of a Group which is probably the largest electrical contracting Group in the world. BB were engaged to install (among other things) the cabling and trunking the subject of this action. Other companies in the Balfour Group were involved in doing the work and in the remedial work. It is agreed that no distinction between one Balfour company and another is relevant for the purposes of this action, and for simplicity I shall refer to any Balfour company involved as BB.

9 The second Third Party, Laing Management Limited (LM), were engaged as Management Contractors for the British Library Project.

THE CLAIMS

10 The plaintiffs allege that the true loss in fact suffered by DNH as a result of breaches of obligation on the part of SVM is reasonably calculated at 16,481,044.00 excluding interest, but the claim in this action is limited to the actual amount paid out by Insurers in respect of Material Damage and in respect of Consequential Loss under the British Library Project Policy, in the sum of 8.4 million. The plaintiffs allege that the total cost in fact incurred by DNH in respect of material damage was 3,881,660 but the claim is limited to an amount equal to the insurance settlement figure finally agreed for material damage namely 3,437,446. It is this latter figure which forms the first head of the 8.4 million claim. DNH do not make any claim in respect of their uninsured material loss. The second head of the claim is made in respect of the costs alleged to be attributable to delays arising from the fact of cable damage. Under that head, the claim is limited to the Policy Limit of 5,000,000.00, which was paid as the limited payment under an agreed settlement figure for a claim for consequential damage. That settlement figure was originally alleged to have been 14,317,682 but the figure was later amended to 12,599,384.00. There were some additional items, again not claimed, which go to make up the alleged total of 16,481,044.00 for Material Damage and Delay.

11 The claim arises from the discovery of very extensive damage to low voltage (LV) (240V) cabling installed in the New British Library by the appointed parcel contractor BB. There is some dispute as to the date when damage to cabling was first discovered. BB had been awarded the electrical works package in 1988 and this involved, so far as concerns this action, the installation of more than 3,000 kilometres of single core LV cables in metal trunking. When items of damage were first discovered, BB replaced damaged cables at their own cost. By February, 1993, BB were alleging that the amount of damage being discovered was due to design faults for which they were not responsible. BB claimed payment for their remedial works in respect of damaged cabling. There followed long delays for reasons which I shall consider. It was not until early 1995 that work was resumed at a reasonable pace.

12 Some 300 kilometres of low voltage cabling were reinstated. As an alternative to the impractical task of replacing the totality of the 3,000 kilometres of cabling, further mitigating electrical works were carried out in order to eliminate risk of fire, personal injury or current failure. Those further electrical works, known as "Enhanced Cable Protection", included the installation of automatic fuse switches and the redesign of some electrical systems.

13 In such a massive construction project, some defects and damage are to be expected, and would be put right as part of the ordinary process of installation at the cost of the contractor. But it is common ground that the amount of damage discovered in the low voltage cabling of Phase 1A of the British Library Project was far in excess of what might be expected in the ordinary course of events. DNH, BB, and LM now combine in this action to allege that the excessive damage was caused by bad design and other failings on the part of SVM, though they did not take that stand in common at the time. SVM deny those allegations and say that the excessive damage was caused by a combination of bad workmanship on the part of BB and bad supervision and lack of co-ordination both on the part of LM and on the part of DNH and its agents. Moreover, while DNH in this action alleges delays caused by cable damage, SVM say that delays were caused by many other matters also, including most importantly, changes in the overall design dictated by changes in Government policy and requirements.

14 As a result of the common cause made by DNH, BB, and LM, unusually, the plaintiffs and both Third Parties in this action are represented by the same counsel and solicitors.

15 In considering the allegations made against BB and LM I bear in mind that although witnesses were called from both companies, those companies were not in command of these proceedings. BB and LM were represented by the lawyers instructed by the insurers because they, like DNH, were insured under the Project Policy, as was required by the employers, the Crown. If the Crown had required that the professional advisers, like the contractors, should be covered by the same policy, this litigation is unlikely to have occurred.

THE ISSUES

16 At the outset of this trial, virtually everything which could be in issue was stated to be in issue.

6. The conflicting parties dispute:

7. A. The nature and extent of SVM's obligations and duty.

8. B. The fact, nature and extent of any breaches of obligation and duty on the part of SVM.

9. C. The mechanism of causation of cable damage and any consequential loss in particular whether such damage and consequential loss was caused by any breach of obligation on the part of SVM.

10. D. The character and extent of cable damage.

11. E. The parties responsible for causing cable damage.

12. F. The quantum of remedial works and the fact and quantum of consequential loss.

13. SVM in particular:

14. A. Deny the obligations alleged against them as to design, co-ordination of design, production of "working drawings", and duties of supervision and inspection of the works as they proceeded;

15. B. Deny that any failure in design or co-ordination or detailed working drawings or inspection occurred at all;

16. C. Deny any breach of obligation on their part;

17. D. Deny that they caused any of the damage or loss;

18. E. Maintain that all the damage is due to failures on the part of BB and failures on the part of LM and DNH;

19. F. Maintain that BB's workforce was primarily responsible for all the damage because of unsuitable materials, bad workmanship, insufficient workface supervision and other failures, and maintain that LM are also responsible for the damage because of failures in co-ordination, supervision and inspection of the works.

20. G. Deny that the bulk of the losses alleged have been incurred at all by DNH.

21. H. Deny that SVM was in any way responsible for any part of the loss.

OTHER BODIES AND INDIVIDUALS PRINCIPALLY INVOLVED

17 The employing client for the project, to whom everyone was ultimately responsible was the Crown. The most senior person dealing with the project in person was the Minister for the time being, assisted by the Permanent Secretary for the Department, who since 1992 to the end of the period under consideration was Mr. (now Sir) Hayden Phillips.

18 DNH employed a Project Director who from August, 1987 until 17 August, 1995 was Mr. John Pardey. He played the part normally played in a commercial venture by the owner's representative. For ordinary purposes he was the voice of the plaintiff.

19 For most of the period of the project, Mr. Pardey was answerable to the head of the Office of Arts and Libraries (OAL), a small government department. The head of OAL answered to the Permanent Secretary. In 1991, OAL was subsumed into the Department of the Environment, the predecessor of DNH. Throughout, OAL was a manifestation of the Crown.

20 In 1978, when the project was first authorised, its management was made the responsibility of the Property Services Agency (PSA). At first, the PSA had financial responsibility for the project. In 1988, that responsibility passed to OAL but PSA continued the management of the project. Having previously acted for other government departments, the PSA later acted for DNH. PSA itself went through some changes. PSA made some contracts for the project on behalf of the Secretary of State for the Environment. In 1992, PSA was to be privatised. For that reason, in September, 1992, DNH entered into a project management agreement with PSA Projects. By September, 1992, all contracts and commissions made on behalf of the Department of the Environment were transferred to DNH. In December, 1992, PSA Projects were sold to Tarmac Construction Limited and a year later their name was changed to TBV Consult (TBV). At one stage the same agency was in the hands of Schal. Throughout the period relevant to this action, the management of the project was in the hands of PSA or TBV or Schal. In this judgment, I may at times refer to PSA when it would be strictly correct to refer to TBV or Schal. There is no practical difference for the purposes under consideration. Throughout, the PSA or TBV or Schal was acting as agent for the Crown. The Project Manager employed by PSA in its various forms was, until 1994, Mr. B.A. Brown, and the Deputy Project Manager was Mr. Andrew Housam. In early 1994, DNH appointed Mr. Leslie Rothwell as Project Manager, and from then on all project managers at TBV worked under Mr. Rothwell's direction and leadership. Mr. Housam remained Deputy Project Manager. Mr. Brown, Mr. Rothwell, and Mr. Housam all speak on behalf of the plaintiffs.

21 The ultimate occupier of the library is the British Libraries Board (BL). BL and their engineers were intimately involved in the construction of the project though they did not have a contractual function. Understandably, BL sought to set high standards, and it was generally agreed by those who gave evidence before me that their standards were in many instances impossibly high.

22 PSA employed a design team consisting of -

22. architects: Colin St.John Wilson & Partners Limited (CSJW)

23. structural engineers: Ove Arup and Partners (OAP)

24. mechanical and electrical engineers: SVM

25. Quantity Surveyors: Davis Langdon and Everest (DLE)

26. In 1983, CSJW appointed one of their directors, Mr. John Honer, to be Supervising Officer (SO) for the construction, and in May 1991 he was appointed Resident Architect. The SO has certain contractual functions to which I shall return.

23 The main construction programme began in 1983, and it was not until 1984 that PSA appointed LM as Construction Management Contractor with overall responsibility for formulating the construction programme, for procuring Works Parcel Contractors and for overseeing the work of those works parcel contractors.

24 Individual parts of the works were divided between about 180 Works Parcel Contractors. Among them were BB and Haden Young Limited (HY). HY provided and installed some mechanical services including air and water systems and controls systems. The air system involved air handling plant, ductwork and terminal units. The water systems included heating and chilling water systems. The chilled water and hot water systems included condenser water systems and associated plant, that is, boilers, chillers, cooling towers, and pumps. There also, of course, were drain pipes for sewage and other waste water. The mechanical services included building energy managements systems (BEMS) which included controls, sensors, actuators, motorised valves and control panels. This equipment required massive plant rooms and there was a great deal of ductwork and pipework installed by Haden Young both in the plant rooms and above ceilings elsewhere in the building. There were some clashes between that ductwork and services provided by BB. Responsibility for those clashes is a matter in issue in this action.

25 All of the mechanical services to which I have referred, together with other mechanical services and the electrical services, were designed by SVM.

26 An important part is played by McLaren Dick & Company (later known as McLaren Topliss) (McLarens), Loss Adjusters. McLarens adjusted the loss under a Project Policy maintained by DNH with the Commercial Union Assurance Company PLC and other insurers in respect of the British Library Project. From time to time, McLarens recommended the insurers to make payments on claims. Payments were always made by cheque to DNH and to no other party insured by the policy. DNH would then make payments to some parcel contractors.

DESCRIPTION OF SITE

27 The Library is a very large project indeed. One measurement mentioned is that the total plan area including all floors and basements, is 26 acres.

28 The site is bounded by Euston Road on the south, Brill Road to the North, and Midland Road and Ossulton Street to the West and East.

29 The observer from the street sees a large building which is not as high as it might have been, due to planning restrictions imposed for the benefit of St. Pancras Station on one side and some low level housing on the other. The observer does not see the massive basements which extend under the building and out under the extensive piazza in front of the building.

30 There are four deep basements for the storage of books, numbered downwards, B1, B2, B3, and B4. Above those levels there is B just below ground level, predominantly occupied by plant rooms. From ground level upwards there is what has been described as the superstructure. In the superstructure are readers' areas, office areas, and exhibition and meeting areas.

31 That part of the Library which has been built is divided into Phase 1A and the Completion Phase, or CP3. Originally there were plans for Phases 1B, 1C, 2A, 2B and 3, which were not built. A smaller CP3 was substituted for them.

32 Phase 1A is at the south end of the site and the Completion Phase is to the north of Phase 1A.

33 Phase 1A (itself divided into Stages 1AA and 1AB) is 76,000 square metres in area and comprises above ground:

27. the main entrance hall and piazza,

28. reading rooms with desks for 579 readers,

29. 13 linear kilometres of open access book storage,

30. 3 exhibition galleries,

31. auditorium and meeting room complex with over 400 seats, and office accommodation for 600 staff,

32. together with necessary cloakrooms etc.

and below ground:

33. 4 basement levels with 290 kilometres of closed access book storage and facilities for computerised mechanical delivery of books to readers,

34. 1 level of plant rooms.

34 Stage 1AA comprised the Basement book storage areas and central and associated plant rooms on five levels below ground together with, above ground, the entrance hall, exhibition area, rare books reading rooms and two levels of offices. Stage 1AB comprised the Science Reference reading rooms, meeting rooms and associated air-handling plantrooms.

35 The Completion Phase is 32,000 square metres in area and comprises:

35. the King's Library holding 60,000 books in a 6 storey glass bookcase,

36. Humanities Reading Rooms on 2 levels with 450 readers desks,

37. Science and Business Rooms on two levels with 61 desks and 6.5 kilometres of open shelving,

38. Oriental and India Office reading room with 80 desks and 1 kilometre of open storage,

39. Map reading room with 36 seats,

40. Additional closed access storage of 25 kilometres,

41. Conservation workshops, photographic and reprographic centres,

42. Restaurant facilities for readers and staff, and

43. Accommodation for around 600 staff.

36 It is particularly relevant to this action to note that each reader's desk is connected with underfloor cabling to serve desk lighting, power points for readers' lap-top computers, connections between readers' computers and the library's computerised index, and communication with the book ordering system. There are also other refinements in the reading rooms requiring cabling, such as the electrical motorised adjustment of the desk tops in the map reading room and the Library's own computers away from the desks allowing readers' access to the Index as well as other computer equipment for staff. All parties make points (going in different directions) that there was no significant problem with that substantial quantity of underfloor wiring: the problems were with cabling overhead, between the ceiling and the underside of the floor slab above in those areas where there is a ceiling (reading rooms, offices etc.) and in similar positions in other areas where there is no ceiling such as plant rooms.

GENERAL HISTORY OF THE PROJECT

37 SVM were involved in the BL project from about 1962 even before the present site was chosen. The original scheme was for an extension to the British Museum site in Bloomsbury. Planning permission was refused and in 1970 the Government bought the site of the old goods depot of St. Pancras Station. Planning permission was granted in 1977 with some restrictions, particularly as to the height of the proposed building, which dictated the unusual shape of the building above ground.

38 The original scheme at St. Pancras was to build in a series of phases, Phases 1A, 1B, 1C, 2A, 2B, and 3. A change of Government in 1979 resulted in changes in funding requiring Phase 1A to be broken down into Stages 1AA and 1AB. In 1989, further financial restrictions caused OAL to decide that Phases 1B, 1C, 2A, 2B, and 3 would not be proceeded with in the planned form and instead there would be a single smaller phase known as the Completion Phase. As a result, although the Library is opened, the site is not yet filled.

 

39 Changes in the overall size of the total project resulted in design changes affecting the design of the work already under construction. The original design was for one building, not a series of independent buildings to be built one after another. Each Phase was designed to fit into the whole building. When the grand scheme was changed, by removing later Phases, the earlier Phases had to be changed to conform with the new shape of the building as a whole. The use to which individual spaces were to be put changed, and the routes of corridors and services had to be changed. The mechanical and electrical services were designed for the building as a whole and they had to be changed. The changes in the grand design worked their way down to important but comparatively small points of detail like the matching of routes of individual cables to the routes of ducts and pipes. Those changes caused very substantial delays and disruption. The architect and the PSA were not at fault in causing those changes. Even individuals at DNH could with justice say that they were not personally responsible because they were compelled by forces outside the DNH. The Crown collectively is responsible for those delays and hence the Crown represented by DNH is responsible. It is impossible to put a figure on those delays.

40 Efficient management of the project was also made more difficult by its manner of funding. The funds for the project were allocated annually and also on a stage by stage basis. In any one year only the amount allocated could be spent whether it was sufficient or more than sufficient. The work had to be programmed according to the funds available.

41 Construction began in 1982 with the demolition of the remains of the depot buildings, rail tracks, platforms etc.

42 Until 1982, it was intended that the project should be carried out in a traditional manner. In that year, PSA put forward the idea of running the project as a Construction Management project. As a result, LM was appointed Construction Manager in 1984. Construction Management was then a relatively novel form of contract management, particularly in government contracts.

43 On 24 May, 1988, BB's Tender for the electrical works was accepted.

44 The physical work of installation of the electrical works began on 1 September, 1988.

45 As early as Autumn, 1989, excessive turnover of labour in BB's workforce was seen to be impeding the efficient progress of the work, and a record was made to that effect by a Clerk of the Works in his diary on 10, March, 1990.

46 By October, 1991, the project was already 12 weeks behind programme, due mainly though not wholly to BB having reduced its workforce in previous months for various reasons including disputes with DNH over matters not the subject of this action. Other causes of delay included changes in design due to changes in client's requirements. Shortage of electricians and supervisors remained a continuing problem thereafter, and delays increased. I shall refer to this problem of shortage of labour in more detail when I come to consider the supervision of the project.

47 During the early part of the work, BB detected and repaired defects at their own cost in the ordinary way. By at least as early as October, 1992, BB realised that they faced a massive problem in dealing with repairs to damaged cables. Whether BB were aware of such cable damage earlier is a contentious matter to which I shall return later.

48 By October, 1992, the work was already substantially behind programme for reasons not connected with cable delays.

49 To avoid having to pay for the repairs themselves, BB set about preparing a case for putting the blame on SVM. That case was set out in a carefully drafted lengthy letter dated 23 February, 1993.

50 BB obtained a report from Mr. R.G.Anstee, a consultant engineer. His report was presented on 17 June, 1993. That report laid the blame for cable damage on SVM.

51 PSA then consulted Mr. Terry Hedgeland. He produced a hurried report on 7 July, 1993 followed by reports on 23 July, 1993 and 6 August, 1993 and then two further reports on 26 August, 1993. The reports were inconsistent.

52 In autumn, 1993, DNH consulted Kennedy & Donkin. They gave their first report in October, 1993.

53 In mid-1993, BB followed a policy of non-cooperation, reducing the pace of remedial work and withdrawing labour. BB was now in dispute about a number of matters not confined to the cable damage the subject of this action.

54 On 17 December, 1993 Mr. Pardey for DNH wrote to BB giving them notice that they must repair the cable damage at their own cost.

55 In February, 1994, BB withdrew their labour. DNH then entered into what was called a "Commercial Agreement" allowing BB some payment on terms.

56 In March, 1994, BB returned some labour to site but complaints about shortage of BB labour continued.

57 A lengthy process of reinspections uncovered many more defects. It appeared that there could be no certainty of discovering all the defects. An unrealistic suggestion, made by BL, that all the cables should be removed and replaced was rejected, and after a great deal of indecision, it was decided on 20 June, 1994, to fit "enhanced cable protection", extra circuit breakers at the distribution boards which would shut off power if a cable fault occurred. It had taken almost a year to produce that decision.

58 Meanwhile, other works package contractors whose work had been disrupted, had stopped work. There was very little activity on site during 1994. That situation had been predicted by LM in their report dated 21 December, 1993 addressed to the SO with copies to Mr. Pardey of DNH and others. LM wrote,

44. "The uncertainty of direction by the Project Team is having a major demoralising effect on the project as a whole and unless firm direction is given by the PSA and SO we anticipate further deterioration of progress on site and resistance by contractors to commit themselves to the work remaining."

45. At this point, BB had reduced their workforce from 250 to 70 men and although they had not abandoned the work they were not regularly and diligently doing the work and they were causing delay to others. At the SO's meetings throughout 1994 the lack of progress was repeatedly reported. In April, 1994, LM reported that BB had refused to provide power to other contractors and thus prevented progress: that was done as a flexing of muscles in disputes over refusals to accept their work. At the May, 1994 meeting, it was reported that very little recordable work had been done in the past month "due mainly to the electrical contractors and How Fire", and LM complained that the absence of decisions from DNH was leaving them in an impossible management position.

59 The situation on site throughout 1994 was reflected in a minute of an SO's meeting towards the end of that period on 8 September, 1994 at which the SO, TBV, CSJW, DLE, SVM, and LM were represented. At that meeting, LM stressed the need for a decision from DNH on three vital questions:

46. a) The end date of the project;

47. b) The full scope of the work;

48. c) The budget and the funding rate.

49. The others present agreed and mentioned numerous results of the uncertainty. In particular, the works package contractors generally were concerned at the financial situation resulting from the delay in the DNH decision and there were rumours exacerbating the situation. The SO, Mr. Addison, said that he was fairly confident that he would soon be able to issue an instruction.

60 In November, 1994, DNH were given an additional budget for the project.

61 After November, 1994, DNH negotiated supplementary agreements with the works package contractors to get them back to work. The series of agreements began with the signature of a Completion Agreement with BB on 11 January, 1995. Agreements with other package contractors followed. Mr. Rothwell, BL Operations Director and later Project Manager, said that the total value of the resolved disputed contracts was over 100 million and the saving on the budget was 3.25 million. The terms of those agreements included terms that all claims and counterclaims between the contractors and DNH were extinguished. The progress of work picked up in 1995 after the supplementary agreements had been signed with other works contractors.

62 Construction of Phase 1A had been due to be completed on 22 March, 1993. The BB Completion Agreement extended the completion date to 31 July, 1995. The completion date was then extended to October, 1995. Construction of Phase 1A was not in fact completed until 22 November, 1995, a delay calculated as 31 months from the original completion date. The "enhanced cable protection" was installed after that completion date.

63 A Report by the Comptroller and Auditor General (22 April, 1996) attributed that delay to, inter alia, the time taken to identify and resolve problems with the mechanical bookshelving, to reach a compromise on how to deal with cable damage, and to decide how to deal with shortcomings in the fire protection systems. I have heard much evidence not available to the Auditor and Comptroller General, and it is plain that the causes of delay were many and complex.

64 Two of the three causes identified by the Auditor and Comptroller General were not even arguably the fault of SVM. Although SVM designed the mechanical bookshelving, it is not suggested that they were responsible for delays relating to the bookshelving: their design was not at fault, the problem was one of failure to conform with the design. The problem with fire protection systems was itself in part a result of the passage of time in completing the project in that safety standards and the expectations of BL altered after the date of the original design. It is not alleged in this action that SVM were responsible for the delays associated with either of those two matters identified by the Comptroller and Auditor General.

65 It is alleged that a substantial part of the delay relating to cable damage was caused by SVM, but they were not responsible for the excessive amount of time taken to reach a compromise on how to deal with the cable damage, the installation of the "enhanced cable protection". Even DNH and BB and LM do not allege that the 31 months delay was wholly caused by cable damage. A great deal of delay was due to indecision on the part of DNH. The DNH/BB/LM case is that SVM caused cable damage which in turn caused 12 or perhaps 9 months delay to the project as a whole. SVM's case is that there were so many different causes of delay that no critical period of delay can be attributed specifically to cable damage. SVM also say that in any event they, SVM, were not responsible for the damage to cables.

 

66 The writ in this action was issued on 24 January, 1996. The trial began almost precisely two years later, on 26 January, 1998.

67 The Library was opened to readers on 21 April, 1998, and was formally opened by Her Majesty the Queen in June, 1998, in the month following the conclusion of the trial of this action.

DESCRIPTION OF THE ELECTRICAL INSTALLATION

68 London Electricity Board (LEB) supplied electricity at a voltage of 11 kV to two LEB sub-stations situated at opposite ends of the site at Basement 1 (B1) level.

69 From those sub-stations, power was fed at 11kV by High Voltage (HV) cabling resting on ladder rack to 3 sub-stations within B3. HV cabling is large wire armoured cabling. Ladder rack is steel racking in the shape of a slim ladder suspended horizontally or vertically.

70 Within the sub-stations are transformers which reduce the power to 415 V.

71 The sub-stations are located to serve particular areas of the building. Sub-station 1 serves the East side. Sub-station 3 serves the West side. Sub-station 2 is reserved for the Heating, Ventilation, and Air Conditioning (HVAC) System.

72 From the sub-stations, power is taken at 415V by armoured cabling resting on ladder rack to 11 Risers at various points around the building. The Risers are copper bars extending up to the top and down to the bottom of the building. There was damage to at least one Riser, but that is not complained of in this action. The damage to the Riser is only relevant because it is evidence of at least one piece of indisputably very bad workmanship on the part of BB, caused by a workforce for whom high standards of workmanship are claimed by BB.

73 Each Riser connects at each level to a Distribution Board within a steel cupboard. Each Distribution Board contains connections and circuit breakers and fuses for individual circuits. Those individual circuits supplied power at 240V to individual items of equipment, power sockets, lighting and so forth. Those individual circuits, or rather some of them (and certainly not those which run under floors), form the subject matter of this action.

74 Three kinds of circuits run from the Distribution Boards, to feed Small Lighting and Power, BEMS, and emergency and alarm systems. The small lighting and power circuits were required by BB's contract to be wired using single core PVC insulated cables with stranded copper conductors enclosed in conduit or trunking, with no joints being permitted in the wiring without written approval of LM. The single wires were of different dimensions, but the majority of them were required to be not less than 2.5mm in section. Wires of more than one size were used, but 90% of the wires were 2.5mm. Each wire is coloured either red or black or green/yellow (earth). In Phase 1A the PVC was white with the surface only being dyed the appropriate colour, so that when scratched or scuffed, the white PVC showed through. In CP3 the colouring extended through the whole body of the PVC. The wires are bendable but are not classed as flexible: that is, a short length can be held in the hand by one end without it bending under its own weight.

75 Wiring went from the Distribution Boards enclosed in trunking or conduits or a combination of the two. A conduit is simply a metal or plastic pipe. For present purposes, trunking consists of steel channels made in lengths joined together. Some of the trunking is single channel, some is two channel, and some is three channel. The three channel trunking has attracted the most attention in this case. The external dimensions of the three channel trunking are 300mm wide by 100mm deep. When laid on a table, a length of three channel trunking looks like the cutlery drawer of a kitchen cabinet with no end pieces. Cables are laid in the channels and then a lid is screwed onto the open side giving the trunking the property of a duct. Trunking may be so positioned that the lid goes on the side, or on the top, or on the bottom. In the present case, we are concerned with a choice between trunking so positioned that the lid goes on top (lid up trunking), or trunking so positioned that the lid goes on the bottom (lid down trunking). Trunking of identical design can be positioned for use either as lid up or lid down trunking. The strongest criticism made of SVM in this case is that they designed the installation in Phase 1A to use lid down trunking throughout, with the exception of underfloor trunking.

76 The trunking has to be routed to make T junctions and to turn corners and go through changes in elevation. For those purposes, accessories are made in the form of T pieces, bends, and sets (going up or down). 3 channel T pieces have come in for particular attention. When a straight piece of 3 channel trunking reaches a T junction, it will often happen that the wires from more than one channel will be divided so that some wires in one channel go to the right and some from the same channel go to the left. The specification required that there should be segregation throughout the building between (a) lighting and small power, (b) escape lighting, and (c) BEMS. The wires in (for example) the left channel must remain segregated from the wires in the centre channel so a system of bridges is incorporated in the T piece like a spaghetti junction in miniature. Special skills are required to cope with a very large number of cables often in very restricted spaces without damaging the wires and I have heard much evidence about techniques.

77 By the Statement of Claim, it is alleged that during the installation, damage was done to PVC single core general wiring cables and also to building energy management system (BEMS) cables, security cables, fire alarm cables, public alarm cables lift diagnostic cables, lighting data loop cables, fibre optic cables and data and voice cables. Damage of all those kinds was reported in a report made by W.S.Atkins to insurance assessors in 1994. Damages are only claimed by DNH against SVM in respect of the single core general wiring cables, the 240V cables. The other damage is relevant and extremely significant because it was caused by the allegedly skilled and careful workforce and because the explanations put forward for damage aimed at laying the blame for damage at the door of SVM largely do not apply to cables other than the PVC single core cables for lighting and small power.

78 When the installation is properly done there should be no damage to cables. In the British Library there was an enormous quantity of damage to cables.

79 In considering the damage, the following elements of the installation have been examined:

50. -Design of the system, in particular as to the nature of the trunking and the routing;

51. -Specification of materials and method;

52. -Quality of the materials, particularly the trunking;

-Workmanship;

-Supervision;

-Inspection;

53. -Co-ordination of the work;

54. -Control of the project.

  1. The respective responsibilities of each of the parties for those matters has to be considered to determine whether any one party or parties has failed to perform its responsibilities. Above all, there is the question whether any breach of responsibilities leads to a finding that one party has caused the damage alleged. The contractual requirements are complex.

THE CONTRACTS

 

CONSTRUCTION MANAGEMENT

81 In construing the contracts entered into by the parties to this action, and in considering their various duties, it is important to read the contractual documents within the context of the overall contractual scheme chosen for the project. In particular, it is important to clarify what is meant by a Contract Manager in the context of this project.

82 There are four main forms of management contract.

1. Management Contracting where all contractors enter into a contract with the Management Contractor. The Managing Contractor is responsible for procurement and financial control and each contractor is paid by the Managing Contractor. The Management Contractor is paid a fee by the Client together with the costs of all the contractors.

2. Project Management Contracting where the Project Manager provides a technical service to the client and procures and manages works contracts on behalf of the client. The Project Manager has full control of budget and programme and is paid on a staff reimbursement basis.

3. Design and Management is similar to Project Management with the addition of design responsibility.

4. Construction Management was the scheme adopted with LM in this case. Under such a scheme, the client (in this case, the Crown) enters directly into separate contracts with the designers, Construction Manager and the Works or Trade Contractors, and the Construction Manager manages the Works Contractors on behalf of the client.

83 LM were engaged by PSA on behalf of the Crown in the name of DNH as Construction Managers. In the course of the project, LM were referred to as Management Contractors (MC) and in the course of this judgment, I may also so refer to them. In the language now used in the construction industry, that latter designation is wrong, but all concerned in this action are agreed that LM were Construction Managers. As Construction Managers, LM became responsible for managing works parcel contractors and service parcel contractors, including BB and HY. There were about 180 parcels. Particularly relevant to this action are the electrical parcel, parcel 4235, handled by BB; and two mechanical services parcels handled by HY, namely, central plant and pipework (parcel 4040), and airhandling plant and ductwork (parcel 4035).

 

LM's CONTRACT

84 PSA on behalf of the Secretary of State made two Management Contracts with LM, namely,

55. - 11 January, 1984, for Stage 1AA and

56. - 9 January, 1987 for Stage 1AB

and together those stages made up Phase 1A.

85 The second of LM's contracts was an extension of the first, which was contained in various documents. By letter dated 11 January, 1984 PSA accepted LM's tender "for the management of the construction and completion" of Stage 1A. The tender was dated 21st February 1983 and its acceptance was expressly made "in conjunction with your letters dated 21 February, 11 May, 24 June, 16 August and 11 October 1983 and this Department's letters dated 16th June, 22 August and 3 October 1983,..."

 

86 The tender contained the following:

"TENDER...

57. 1. I/We have perused the following documents:-

(1) Contract Book:

58. Section 1: General Information and Instructions to Tenderers

59. Section 2: Management Contract Conditions

60. Section 3: Prescribed Form of Works Contract for use with PSA Management Contracts

61. Section 4: Programme Summary, Cost Plan Estimate, Outline Specification, Method Statement and List of Drawings

62. (2) the Information Drawings listed in Contract Book Section 4

63. (3) Supplementary Condition No. 139A, Value Added Tax

64. (4) Standard Fire precautions P5 (available from HMSO Shops)..."

 

"SECTION 1

GENERAL INFORMATION AND INSTRUCTIONS TO TENDERERS

2. Personnel, November 1982...

(b) Design Team

Architect...

M & E Engineer SVM...

65. Structural Engineer Ove Arup...

66. Quantity Surveyor DBE..." (who later became DLE).

7. Division of Responsibilities

67. The following table is to be used as a general guide to the performance of the MC's obligations under the Management Contract, and his relationship with and the responsibilities of the other persons shown in the table. The table does not limit the responsibilities of the MC set out in Section 2. It may be amended at any time by the Authority (but not, of course, so as to extend the MC's responsibilities under Section 2).

68. For the purposes of the table "Design Team" includes the SO.

69. [The Table follows].

 

 

 

SECTION 2

MANAGEMENT CONTRACT CONDITIONS

1. Definitions, Etc.

70. (1) "The Management Contract" means the documents forming the tender and acceptance thereof, together with the documents referred to therein including these Conditions, the Specifications, the Cost Plan and the Drawings, and all these documents taken together shall be deemed to form one contract...

2. MC's Obligations

71. The MC shall, through the provision of management services as detailed in Conditions 3 and 4, and elsewhere in the Management Contract, secure the completion of the Works by the Contractors. He shall control their performance in respect of standards of workmanship, cost and programme. Subject to the provisions of the Management Contract, the MC shall exercise the powers and duties ascribed to him in each direct contract.

3. Pre-commencement services

72. The pre-commencement services .... shall include:

73. (1) Provision of advice and assistance to the SO

74. When requested to do so, consider alternative construction methods and technical solutions and the time required for each alternative. Give technical advice on the construction techniques proposed for the 'construction method'.

.........

75. (6) Provision of Staff

76. The MC shall provide such competent specialists and support staff who have adequate experience on large and complex installations to undertake the pre-commencement services as shall be reasonably required by the Project Manager. All such specialists and staff shall be in the MC's direct employment unless otherwise approved by the Project Manager. They shall include:

.....

77. Chartered Mechanical and Electrical Engineers

.....

78. [In addition, in a Proposal which formed part of the contract, LM stated: "... qualified mechanical and electrical engineers will be deployed to implement effective controls over services installations and the commissioning process."]

4. Management of the Works

79. The services which the MC shall provide after the Order to Commence is given shall include those services listed in Condition 3 as appropriate and in addition:...

80. (3) Co-ordination and control of the work

81. (a) Be responsible for and take all necessary steps to secure progress of the Works to specification and programme and within the cost plan.

82. (b) Check progress of the preparatory (including installation and shop drawings) work of the Contractors; make visits to the premises of Contractors as necessary, to inspect production.

83. (c) Report to the SO regularly on progress and technical aspects of all orders placed.

84. (d) Co-ordinate and expedite all Works carried out by the Contractors (see also Condition 25) including making good defects during the maintenance periods.

85. (e) Take all possible steps to prevent disputes arising between the Contractors, and, if arising, assist in settling them.

86. (f) Supervise the execution of all the Works and maintain the necessary quality control.

87. (g) Ensure correct setting out and levels for the Works. (see also Condition 12).

88. (h) Maintain records of the numbers of all workmen employed on the site.

89. (i) Maintain records of all materials, delivered to and removed from the site, and of all inspections, tests, reports etc; submit copies to the SO...

10. Progress of the Works

90. The Order to Commence shall be given to the MC by notice and the MC shall thereupon arrange for the execution of the Works to begin. Subsequently he shall arrange and manage the execution of each direct contract so as to ensure that each is commenced and completed in accordance with the Master Programme and that the whole of the Works are completed to the standards specified and to the satisfaction of the SO by the date for completion.

14. Appointment of Resident Engineer or Clerk of Works

91. The Authority may appoint a Resident Engineer or a Clerk of Works and the MC shall admit him and his assistants to the site. The Resident Engineer or Clerk of Works may exercise the powers of inspection and testing in direct contracts and such other powers as the SO may give notice of to the MC.

21. Avoidance of Delay

92. (1) The MC shall secure the completion of the Works to the satisfaction of the SO on or before the date for completion, prevent as far as possible any delay in the completion of the Works, and minimise delay if it becomes unavoidable.

93. (2) In the event that delay becomes unavoidable owing to circumstances beyond the MC's control, the date for completion shall be altered accordingly by the Authority.

24. MC's Site Organisation

94. (1) The MC shall maintain an adequate site organisation under the full time control of an experienced site agent who is conversant with British Standards and Codes of Practice and with the health, safety and welfare regulations, who is capable of assuming complete responsibility for the Management Contract and who shall be designated as the MC's site agent to whom directions may be given by the SO. The site agent shall be in attendance at the site during all working hours except that when required to do so he shall attend at the office of the SO.

95. (2) the site organisation shall include staff of adequate status and experience in mechanical, electrical and public health engineering services to ensure that compatibility is achieved between service installations one with another and each in relation to the works generally.

96. (5) The MC shall employ on the site a sufficient number of suitably qualified persons for the supervision and management of the execution of the Works, and the SO shall have power to instruct the MC to increase or decrease the number of persons so employed.

25. Co-ordination

97. (1) The MC shall be responsible for obtaining and co-ordinating installation details of all builders work drawings and installation drawings for statutory undertakings, Contractors or others employed direct in connection with the Works and for ensuring that the services are installed in accordance with the agreed services co-ordination drawings. The MC shall ensure that each service is installed in such a manner as to ensure proper performance and adequate fixing to the structure and to avoid conflicts in the positioning of the various ducts, pipes, cables, other items of service installation and other like items. He shall arrange for statutory undertakings, Contractors and others employed direct to attend necessary co-ordination meetings.

98. (2) The SO will provide co-ordination drawings showing the inter-relation of the services and their relation to the building components in sufficient detail to demonstrate that the services will be properly separated from each other and can be satisfactorily installed and maintained. These drawings shall form the basis of the relevant Contractors' working drawings and it will only be necessary for Contractors to prepare installation drawings to show details of fabricated items and fixing details where site measurement is required. Any proposed deviations from the co-ordination drawings shall be submitted to the SO for approval; if necessary the SO will amend the co-ordination drawing(s). A deviation in this instance is considered as a change in the position of a service to such an extent that one or more other service will require repositioning. Development of installation details would not constitute a deviation unless this resulted in additional elbows, bends, offsets, transformation pieces etc.

99. (3) The MC shall ensure that Contractors and others programme their work and provide him with information regarding builders work in reasonable time relative to the construction programme.

100. (4) The MC shall employ a person on site whose status in his organisation and experience of engineering services are such that he can discharge competently all the requirements detailed above.

101. (5) Acceptance or approval by the SO of drawings and other documents provided by the MC in respect of work proposed and/or designed by the MC will not relieve the MC of responsibility for any discrepancies, errors or omissions therein, nor for any other of his contractual and legal obligations.

 

SECTION 3

PRESCRIBED FORM OF WORKS CONTRACT FOR USE WITH

P.S.A. MANAGEMENT CONTRACTS

1. Definitions, etc.

102. (1) 'the Contract' means the documents forming the tender and acceptance thereof, together with the documents referred to therein including these Conditions (except as set out in the Abstract of Particulars), the Specification, the Bills of Quantities and the Drawings, and all these documents taken together shall be deemed to form one contract. When there are no Bills of Quantities all reference to Bills of Quantities in the Contract shall be treated as cancelled, except that where the context so admits the Schedule of Rates shall be substituted therefor...

4. Specification, Bills of Quantities and Drawings

103. (1) In case of discrepancy between these Conditions and the Specification and/or the Bills of Quantities and/or the Drawings, the provisions of these Conditions shall prevail.

104. (2) Figured dimensions on the Drawings shall be followed in preference to the scale.

105. (3) The MC shall provide free to the Contractor three copies of the Contract Drawings and of the Specification and of the blank Bills of Quantities, and two copies of all further drawings issued during the progress of the Works. The Contractor shall keep one copy of all Drawings and of the Specification on the Site and the SO and MC and their representatives shall at all reasonable times have access to them...

6. Progress of the Works

106. Possession of the Site or the order to commence shall be given to the Contractor by notice and the Contractor shall thereupon commence the execution of the Works and shall under the day-to-day supervision and control of the MC proceed with diligence and expedition in regular progression or as may be directed by the MC under Condition 7 so that the whole of the Works shall be completed by the date for completion.

7. MC's instructions

107. (1) The Contractor shall carry out and complete the execution of the Works to the satisfaction of the MC who may from time to time issue further drawings, details and/or instructions, directions and explanations (all of which are hereafter referred to as `the MC's instructions') in regard to:

108. (a) the variation or modification of the design, quality or quantity of the Works or the addition or omission or substitution of any work;

109. (b) any discrepancy in or between the Specification and/or Bills of Quantities and/or Drawings;...

110. (d) the removal and/or re-execution of any work executed by the Contractor;...

111. (m) any other matter as to which it is necessary or expedient for the MC to issue instructions, directions or explanations...

112. (4) The Contractor shall not make any alteration in, addition to or omission from the Works described in the Specification and/or Bills of Quantities and/or shown on the Drawings except in pursuance of the MC's instruction issued in accordance with this Condition and such alterations, additions or omissions shall not invalidate the Contract.

13. Things for incorporation and workmanship to conform to description

113. (1) All things for incorporation shall be of the respective kinds described in the Specification and/or Bills of Quantities and/or Drawings and the Contractor shall upon the request of the MC prove to the MC's satisfaction that such things do so conform.

114. (4) The Works shall be executed in a workmanlike manner and to the satisfaction in all respects of the MC. If any things for incorporation do not accord with the provisions of the Contract or if any workmanship does not so accord the same shall at the cost of the Contractor be replaced, rectified or reconstructed as the case may be, and all such things which are rejected shall be removed from the Site...

25. Precautions against loss or damage

115. (1) The Contractor shall take all reasonable steps and precautions (including any steps and precautions expressly required under or by virtue of the Contract) to prevent and to minimise the extent of loss or damage to the Works and any things for incorporation on the Site (including things provided by the Authority) arising from any cause whatsoever including any of the causes referred to in Condition 26(3)...

26. Damage to Works or other things...

116. (2) The Contractor shall (unless the Authority exercises his powers to determine the Contract) with all possible speed make good any loss or damage arising from any cause whatsoever occasioned to the Works or to any things for incorporation on the Site (including any things provided by the Authority) and shall notwithstanding such loss or damage proceed with the execution and completion of the Works in accordance with the Contract.

117. (3) The cost of making good any loss or damage falling within paragraph (2) of this Condition shall be wholly borne by the Contractor, except that (subject to paragraph (4) of this Condition) where the loss or damage is wholly or partly caused by -

118. (a) the neglect or default of a servant of the Crown acting in the course of his employment as such;

119. (b) any of the accepted risks; [sic: for "accepted" read "excepted"]

120. (c) any defect in the design of the Works or any part of the Works (except insofar as such design was provided by the Contractor, or any servant, agent or sub-contractor of his or otherwise on his behalf);

121. (d) any requirement imposed on the Contractor under or by virtue of the Contract as to the method of executing the Works or any part of the Works (except insofar as such requirement was devised by the Contractor, or any servant, agent or sub-contractor of his or otherwise on his behalf); or

122. (e) the neglect or default of the MC

123. the Authority shall pay to the Contractor (where it is wholly so caused) the Appropriate Sum or (where it is partly so caused) such proportion of the Appropriate Sum as properly reflects the share of that cause in causing the loss or damage...

28. Date for completion: Extensions of time...

124. (2) The Contractor shall be allowed by the Authority a reasonable extension of time for the completion of the Works in respect of any delay in such completion which has been caused or which the Authority is satisfied will be caused by any of the following circumstances

125. (a) the execution of any modified or additional work;...

126. (f) any other circumstance which is wholly beyond the control of the Contractor;

127. (i) except insofar as the Authority shall otherwise decide, it shall be a condition upon the observance of which the Contractor's right to any such extension of time shall depend that the Contractor shall, immediately upon becoming aware that any such delay has been or will be caused, give notice to the MC specifying therein the circumstances causing or likely to cause the delay and the actual or estimated extent of the delay caused or likely to be caused thereby;

128. (ii) the Contractor shall not be entitled to any extension of time in respect of a delay caused by any circumstance mentioned in sub-paragraph (2)(f) of this Condition if he could reasonably be expected to have foreseen at the date of the Contract that a delay caused by that circumstance would, or was likely to, occur;...

129. (iv) it shall be the duty of the Contractor at all times to use his best endeavours to prevent any delay being caused by any of the above mentioned circumstances and to minimise any such delay as may be caused thereby and to do all that may reasonably be required, to the satisfaction of the MC, to proceed with the Works; and

130. (v) the Contractor shall not be entitled to an extension of time if any such delay is attributable to any negligence, default or improper conduct on his part...

3. Outline Specification...

(21) Medium Voltage Distribution:...

131. Main cabling shall be carried out using paper and PVC insulated single and multicore armoured cables supported on tray or racking as appropriate...

(23) Minor Power Installation:

132. General purpose switched socket outlets shall be installed throughout the building, and shall be serviced via a floor duct system installed throughout all areas except the Basement Bookstack compartments.

(24) Motive Power Installations:...

133. Wiring shall be carried out using PVC armoured cables run on tray or PVC insulated cables in conduit and/or trunking as appropriate...

(33) Automatic Data-processing:

134. A comprehensive wiring facility shall be provided for the provision of an ADP installation which shall extend throughout the whole building. The wiring provision shall take the form of a multi-compartment fully accessible floor distribution system which in some areas shall be associated with the Minor Power and Telephone Services. The ADP system shall interface with a central processing unit and local micro-processor terminals as required. Control and signal (but not power) wiring shall be carried out during the Contract..."

"Appendix A

135. Design and Construction Method Statement...

1. Introduction

(1) Aim

136. To inform tenderers of the general principles of structural stability employed both in the temporary and final condition which are an essential part of the design, in order that they may incorporate this into their planning of the Works both for tender and construction purposes. This description is not to be considered as exhaustive and complete. Detailed working methods which adhere to the principles stated must be submitted and agreed prior to construction..."

"THE DEPARTMENT OF THE ENVIRONMENT

PROPERTY SERVICES AGENCY

DIRECTORATE OF CIVIL ACCOMMODATION

PART 1

PROJECT ADMINISTRATION AND CONTROL

RESPONSE TO QUESTIONS 1-12 AND 15-19

A Proposal

by

Laing Management Contracting Limited

1. Management

137. A very able and experienced management team will be essential on this project to ensure that progress is maintained at the right level and to control cost and construction quality...

138. In addition qualified mechanical and electrical engineers will be deployed to implement effective controls over services installations and the commissioning process...

5.5 PRODUCTION CONTROL AND CO-ORDINATION

(a) Control

139. It is essential that all contractors are controlled from the start of the construction stage and Laing will administer and manage all activities to ensure that the contracts are efficiently carried out.

140. Progress will be maintained and contractors managed by the application of the Laing Management Team to the following:

141. (i) Ensuring that contractors have adequate supervision, labour resources, plant and equipment available and that they are aware of the future needs of the project.

142. (ii) Identifying the interface activities with other contractors and establishing in agreement practical working arrangements and clearly defined responsibilities for work finishing...

143. (b) Co-ordination

144. (i) Monitor physical progress weekly. Maintain close contact with each contract management and advise on aspects of work sequencing, resourcing, work planning and the management of installations.

145. (ii) Convene and chair contract progress meetings involving consultants and associated contractors as appropriate to ensure that all co-ordination aspects with other trades are identified.

146. (iii) Regularly inspect all installations, plant and equipment for quality, accuracy and compliance with specification...

5.6 QUALITY CONTROL

(i) Policy

147. All Laing site management will be responsible for the Quality Control achieved on this project...

148. Electrical Services...

149. The timing would also be dependent upon whether the permanent lighting could be used to assist in achieving the high standard of finishes that will be required. If this is possible, then the use of insulated boards will allow progressive connecting and testing.

150. The installation of the electrical services would be carried out in a traditional manner. High level cable racking within the plant rooms would be installed before any pipework to avoid possible access problems...

151. Provision of a building management system would require careful planning, since it would not be possible to completely commission such a system until the plants being monitored were operational. Early discussions with the Consulting Engineers would be essential to arrange the early appointment of this specialist sub-contractor so that all routes and equipment are known and can be installed as the services proceed.

152. Commissioning...

153. During the design development stage, testing and commissioning procedures would be agreed with the Consulting Engineers, taking into account the PSA documentation requirements.

154. A detailed programme would be drawn up and agreed with the relevant parties. This would be reviewed and adjusted as necessary at regular meetings that would be set up with the specialist contractor. At the same time procedures, progress and problems would be discussed. Laing believe that the Consulting Engineers presence would be vital to these meetings and would welcome their participation...

Planning and Design

Planning

155. The British Library building would be highly serviced and the detailed planning and control of these installations will be fundamental to the success of the project...

156. All drawings, specifications and information available would be studied and discussed with the Consulting Engineer. A detailed master programme would then be prepared integrated with structural and finishings activities. This document would be the key to all future programme agreements with sub-contractors.

Design

157. When discussing this subject, particular attention would be paid to the following points:

158. (i) An information release schedule would be agreed to ensure that the appropriate design decisions were taken to allow construction to proceed while allowing maximum flexibility to the design progress...

159. (iv) Areas requiring detailed co-ordination would be identified, examples being the main plant areas at basement one and two levels [sic: these levels became known as B1 and B] ....

160. (vi) The formation of economical and practical work packages would be agreed to ensure financial competition, effective site control and design flexibility...

Pre-Construction Co-ordination

161. The successful execution and completion of the contract will depend upon the controls exercised over the contractors employed...

162. (iii) A design schedule would be agreed with the Consulting Engineers, in order that information is released to the contractors to enable them to achieve the above programmes...

163. (v) Agreement would be reached with the contractors regarding management communications and the structure of meetings required to control the contract...

Construction Co-ordination

164. To cover the construction period, controls would be implemented to ensure that the total installation programme was achieved and that the required standards of installation were maintained...

165. (i) ...The contractor would be advised on aspects of work sequencing resourcing, work planning and the management of installations.

166. (ii) Laing would convene and chair regular meetings with the contractors and Consulting Engineers to discuss engineering queries and procedures...

167. (iii) Regular inspections of the entire works would be carried out to ensure that all installations conform with the drawings, specifications and good engineering practice. When sections of work have been completed to the required standard, the Consulting Engineer would be asked to carry out his final inspection..."

Letter from LM to PSA dated 16 August 1983:

"AMENDMENTS TO LMC SUBMISSION

168. These amendments are necessary as a consequence of our accepting the 78 months construction period, our clear understanding of the contractual relationship between the authority, the design team and ourselves, and the necessity to appoint an alternative member of our staff as Resources Manager...

169. 3. The diagram indicating the formal relationships between the authority, the design team and LMC. This diagram will replace the "site organisation" diagram which was enclosed between pages 7 and 8 of Part 1 of our original submission."

87 I have quoted at length those provisions from even longer contractual documents because they are relied on by the parties and they show the extensive and deep responsibilities of LM particularly in relation to co-ordination both of the works and of the design and also with regard to supervision and inspection and prevention of delay. Those provisions are important in considering the duties of LM as Third Parties in this action. They also form an important part of the contractual scheme and are part of the context in which the obligations of SVM should be construed.

BB's CONTRACT

88 SVM were responsible for preparing the tender for electrical works and considering the tenders when they came in. When SVM issued the tender for the electrical work on 3 November, 1987, HY had already begun their part of the work on site. HY's work included the installation of metal ducting for air conditioning and that ducting had to be routed near the routes for electrical installations.

89 Mr. Sworder, a Chartered Engineer employed by SVM as a senior mechanical engineer with experience of electrical engineering, gave evidence about the tenders received. The lowest tender was from BB on 8 February, 1988, later revised. The tender was analysed by the SVM in-house QS team. SVM took the view that the tender was too low. It was 10% to 15% below SVM's estimated cost and Mr. Sworder feared that BB were seeking to obtain the work by putting in a low price without any profit and that they would later seek to make their profit by claiming for delay and disruption at later stages in a lengthy programme. However, BB were able to respond to all queries about their costings and SVM were required under PSA rules to recommend acceptance of the tender.

90 Before BB submitted their revised tender for the work, SVM had already, on 8 April, 1988 issued BB with all the design and multi-service drawings for Stage 1AA for the purpose of tendering. Due to changes in client's requirements, the architects' design of the building was changing and for the purpose of tendering, a moratorium was declared on updating the electrical drawings, so that the drawings in the hands of BB were not up to date at the time they entered into the contract. Even those out of date drawings in the hands of BB at the time of tender related only to Stage 1AA of Phase 1A. BB were required to tender for Stage 1AB of Phase 1A on the basis of Provisional Sums. This heavy reliance on provisional sums was itself to cause problems.

91 After the work was begun by BB, a very large number of instructions (known as Management Contractor's Instructions or MCIs) would be issued to bring the tender scheme up to date with the architect's scheme as it advanced. BB were entitled to these MCIs to support claims for payment above the tendered sum. There were also changes in the client's brief which led to more changes in the architect's scheme and hence to more changes in SVM's drawings and more MCIs.

92 By letter dated 5 May, 1988 addressed to the Secretary of State for the Environment via the PSA, BB submitted their revised formal tender for the work in the electrical installation in Phase 1A. That tender was accepted by letter dated 24 May, 1988 from LM writing on behalf of the Secretary of State.

93 The letter from BB to The Secretary of State dated 5 May, 1988 included the following:

170. "Further to our tender for the above works dated 8th February 1988 and subsequent meetings we would now confirm the following:-

171. Our tender letter dated 8th February 1988 is withdrawn and replaced by this letter.

..........

Organisation and Programme

172. 1. We confirm that the Management Contractor's restraints programmes and notes (see Appendix B) will take precedence over our tender programme and that if awarded the contract, our Works Programme will be developed in accordance with specification clause PRE4/351.

........

173. At Appendix C to this letter, we have included copies of the following correspondence with the Management Contractor.

174. a. Laing Management Contracting Limited's letter dated the 23rd February 1988

175. b. Balfour Beatty's letter dated the 2nd March 1988.

176. c. Laing Management Contracting's letter dated the 3rd March 1988

177. d. Laing Management Contracting's letter dated the 9th March 1988.

178. e. Balfour Beatty's letter dated the 17th March 1988.

179. f. Laing Management Contracting's letter dated 17th March 1988.

180. g. Balfour Beatty letter dated the 24th March 1988.

181. h. Balfour Beatty letter dated the 25th March 1988.

(ref: TRH/BK/2413/PTM).

182. i. Balfour Beatty letter dated the 25th March 1988

(ref: TRH/BB/2413/JMT).

183. j. Balfour Beatty letter dated the 25th March 1988.

(ref: TRH/BB/2413/Posttend.1/PJM).

184. k. Laing Management Contracting letter dated the 14th April 1988.

185. l. Balfour Beatty letter dated the 18th April 1988.

186. m. Laing Management Contracting letter dated the 29th April 1988.

187. n. Balfour Beatty letter dated (5th) May 1988.

188. These should be read in full, including accompanying documentation, and are deemed to be contract documents..."

94 The Tender form sent with the letter of 5 May, 1988 included the following terms:

189. "1. I/We have perused the following documents:

190. (1) Prescribed Form of Works Contract for use with PSA Management Contracts

191. (2) Abstract of Particulars (Form C1009 Abs-VOP-Formula (T) (December 1978) BL) (plus Addendum).

192. (3) Supplementary Conditions Nos. 139A (Form C1953A (September 1975) BL), 147A(M) (Edition 2) (Form C1961(M) (March 1984)BL), 207 (Form C1992 (May 1980 Amended April 1983) BL), 208 (Form C1993 (May 1980 Amended April 1983) BL), and 213(BL) (Form C1998 BL).

193. (4) Specification

194. (5) Bills of Quantities

195. (6) Standard Fire precautions P5 (available from HMSO Shops).

196. (7) Drawing Nos all per list at PRE 2/200 of the specification.

197. (8) The Restraints Programme with conjoined notes, and Concurrent Works Programme

198. (9) M&E Schedule 4Z - Addendum to Summary to Tender

199. (10) Schedule 1 - Standby Generation...

............

200. ABSTRACT OF PARTICULARS which shall be read in conjunction with Prescribed Form of Works Contract for use with PSA Management Contracts.

201. The Authority shall be The Secretary of State for the Environment.

202. The Superintending Officer The Architect, Engineer or Surveyor (including any person or persons acting for him) appointed for the time being by the Secretary of State for the Environment for that purpose.

..............

NEW BRITISH LIBRARY

METHOD STATEMENT

203. 1.3 All installation and testing will be carried out by or under the supervision of directly employed qualified staff, and the workmanship assured by regular inspection by the Manager having responsibility for this function within the Company...

8. INSTALLATION METHOD - CABLING

204. All cable routes will be physically checked and measured and where necessary steelwork, non standard tray or cleat runs, will be designed and the drawings submitted for approval.

205. Prior to cable installation, the route will be checked to ensure that all steelwork is free from abrasive parts.

206. Depending on the route length, its configuration and the size of the cable one of three methods of cable pulling will be employed.

207. 8.1 Hand Pull - The cable gang is spaced over the route and the cable fed by hand from man to man.

208. 8.2 Bond Pull - Normally employed on heavy non armoured cables, this method entails a steel bond being pulled over the section length by winch and the cable is tied to this at approximately 2 metre intervals. When installation is completed ties are cut and the bond removed. Control would be by wireless or telephone between drum, winch and strategic positions along the route.

209. 8.3 Nose Pull - Normally employed on heavy armoured cables where the leading end has a pulling eye fitted to the cores and the armour of the cable. A rope or bond is attached to this pulling eye and the cable is winched in. This operation would be controlled by wireless or telephone...

[I quote the provisions concerning pulling cables from clause 8 only to reject them as irrelevant. The plaintiffs relied on them in support of their case that pulling cables was a proper practice. Evidence showed that each of those three techniques, 8.1, 8.2, and 8.3, as the words of two of them expressly indicate, related to heavy cables, not to cables the subject of this action.]

PRESCRIBED FORM OF WORKS CONTRACT FOR USE WITH

P.S.A. MANAGEMENT CONTRACTS

[This document was not with the copy of BB's Tender, but the terms are included in the contract. The relevant terms are quoted in the extracts from LM's contract above and are not repeated.]

SPECIFICATION

SPECIFICATION [1b]

PRE 1:

210. 700 THE WORKS generally comprise:-

211. The provision of working drawings, supply and installation of all materials and components, testing, commission and setting to work of Electrical Services and Equipment all as set out and defined in the technical specification...

212. 750 DESIGN RESPONSIBILITY: carry out any design (additional to that incorporated in the documentation provided by the Authority for tender purposes) which is necessary to ensure the suitability, compatibility and correct fixing and location within the system of the components selected by the Contractor to meet the specified performance of the installation...

213. 1150 CO-ORDINATION: together with the MC co-ordinate the Works with the work of others employed direct so that their work and the Contractor's own work are executed with due regard to each other and in such a manner that satisfactory construction and performance of the Works results...

PRE 2:

FORM OF CONTRACT

214. 101 CONDITIONS OF CONTRACT: will be the Prescribed Form of Works Contract for use with PSA Management Contracts and any amendments or Supplementary Conditions thereto as defined on the Tender Form...

DRAWINGS

......

215. 250 FURTHER CO-ORDINATION AND DESIGN: the building consists of areas of different structures, usages and headrooms thus necessitating complex structural and services solutions.

216. The Contract Drawings identify the inter-relation of the services and their relation to the building components in sufficient detail to demonstrate that the services can be properly separated from each other and can be satisfactorily installed and maintained. The Contractor is to complete the final co-ordination of the Works in conjunction with the MC and others employed direct.

217. The Contract Drawings are not Working Drawings but the Contract Drawings can be adopted by the Contractor as the basis for the production of his Installation Drawings.

PRE 4:

PROGRAMME

218. 151 METHOD STATEMENT: the method statement submitted with the tender shall explain in detail the intentions with regard to all aspects of the work including staffing, resources, hours of working, sequence and safe method of working, plant proposals, temporary services, quality control, protection, inspection, testing, access, unloading, storage and distribution, etc...

219. 1051 PROGRESS DRAWINGS: keep on site for regular inspection by the MC, one set of white prints of the working drawings to provide a complete record of the Works. Mark-up these drawings at intervals not exceeding one week to show the progress of work installed.

220. 1052 FURTHER METHOD STATEMENT: when requested by the MC elaborate on the method statement submitted with the tender and update same as necessary. Provide details of safe methods of working before commencing each part of the Works...

221. 1351 DRAWINGS AND DOCUMENTS TO BE SUPPLIED BY THE CONTRACTOR: provide drawings, documents and explanatory literature as required by this specification in adequate time to allow for comment, amendment, resubmission, approval and general issue to suit the Contractor's Works Programme. Normally a period of four weeks shall be allowed between each submission and return of each drawing, whether approved or not...

222. Where required obtain approval of drawings and documents from the MC before any manufacture or installation is commenced. Should the Contractor believe during the course of preparation of such drawings that a variation to the Contract has occurred then the MC's instruction must be obtained prior to submitting the drawing for approval. All deviations from the Contract Drawings are to be drawn to the attention of the MC where working drawings are submitted...

223. Acceptance or approval of drawings and documents provided by the Contractor in respect of work proposed and/or designed by him or his sub-contractors will not relieve the Contractor of responsibility for any discrepancies, errors or omissions therein; for providing equipment suitable in dimension, construction, finish and function for the location in which and purpose for which it is installed or for any other of his contractual and legal obligations.

224. 1352 WORKING DRAWINGS: prepare working drawings for the Works and for others employed direct as required by this specification and submit them to the MC for approval (see PRE 2/250)...

225. The working drawings to be prepared and provided by the Contractor shall be to suitable scales relative to their purpose and shall include adequate plans, elevations, sections and other views as necessary to provide satisfactory illustrations, and shall include the following:-...

3. Installation Drawings

226. Drawings showing details of the Contractor's proposals for the execution and mode of operation of the Works.

227. Installation Drawings shall be of at least 1:50 scale and shall include the Works in the area concerned and shall illustrate the method in which they are to be installed, to ensure proper performance and adequate fixing to the structure and to avoid conflict in the positioning of the Works and other installations.

228. Prior to the preparation of each drawing, co-operate with the MC and all others employed direct in order to ensure that adequate provision is made and suitable space is available for the Works.

229. Each drawing shall be prepared accurately to scale, locating all components, plant, equipment, means of support, items of control, electric trunking, electric cable trays, conduits, cables etc., in relation to each other and including adequate provision for access for the purposes of installation, testing, commissioning and maintenance of all individual systems and components thereof...

230. 1651 CO-ORDINATION MEETINGS: attend installation co-ordination meetings convened by the MC when the Contractor's installation proposals and working drawings will be considered by the MC in conjunction with others employed direct...

RECORDS

231. 1752 AS-BUILT AND AS-INSTALLED DRAWINGS: diagrams and schedules provide as-built and as-installed drawings, diagrams and schedules and include any specific requirements called for in this Specification...

232. During the course of the Works maintain on site fully detailed record drawings, diagrams and schedules of all changes from the contract drawings, diagrams and schedules and approved drawings, diagrams and schedules to facilitate easy and accurate preparation of the as-built and as-installed drawings, diagrams and schedules and to ensure that these drawings, diagrams and schedules are in all respects a true record of the installation. The record drawings, diagrams and schedules shall be updated at intervals not exceeding three days.

233. Each as-built and as-installed drawing shall be approved by the MC before production of the printed copy. Two complete sets of the approved as-built and as-installed drawings, diagrams and schedules shall be issued to the MC...

PRE 5:

RESOURCES

234. 3450 SITE ORGANISATION: maintain an adequate site organisation under the full time control of an experienced manager who is conversant with British Standards and Codes of Practice and with the Health, Safety and Welfare regulations and is capable of assuming complete responsibility for a contract of this nature (See Contract Condition 33).

235. Furnish a competent and adequate staff as necessary for the proper administration, co-ordination, supervision and superintendence so that they will be available at the time they are needed for the work, the measurement of the Works and where appropriate for the preparation of drawings etc. Keep an adequate force of skilled workmen on the job to complete the work in accordance with the agreed programme...

PRE 6:

GENERAL

236. 101 CO-ORDINATE all Sub-Contractors so that their work and the Contractor's own work are executed with due regard to each other and in such a manner that satisfactory construction and performance of the Works results...

237. Arrange and monitor a programme with each Sub-Contractor and Supplier. Ensure that there is adequate prior exchange of information with and between all Sub-Contractors concerning the exact location and sizes of components, openings and work generally...

PRE 8:

QUALITY/TESTING/APPROVALS (continued)

238. 1160 WORKMANSHIP: a high standard of workmanship and finish is required and the Contractor must clearly understand that any work which is not, in the opinion of the MC, up to such standard, will have to be taken down and made good or replaced with new at the Contractor's expense, including consequential costs.

239. The Contractor shall carry out the Works in accordance with the specification and good practice and in a sound and workmanlike manner. If any information contained in drawings or in a specification appears to conflict with accepted good practice, the Contractor shall bring this to the attention of the MC who shall give an instruction to clarify the matter...

240. 1650 PROTECT THE WORKS: from loss or damage by weather or any other cause.

241. The Contractor shall anticipate the possible sources of damage to the Works and those of others employed direct and take active and positive protective measures to the satisfaction of the MC. The acceptance of responsibility for making good in the event of damage will not be adequate.

242. Protective devices shall be provided to protect the Works against damage arising from weather conditions, construction, others employed direct, warping, distortion, abrasion, sunlight, humidity or other conditions which could have adverse effect on the Works.

243. Protection is dealt with in the following three stages as set out in PRE 8/1651, 1652 and 1653...

244. 1652 PROTECTION DURING INSTALLATION: provide, maintain, alter and adapt protective devices to protect the Works during construction, assembly and installation up to the time when they have been completed.

245. The Contractor shall include in his tender for taking protective measures to ensure that any possible damage to the work of others by reason of his works is prevented.

246. Should the Contractor damage or remove any protective devices whether protecting his own work or that of others, he shall be responsible for adapting and reinstating the protection to its original state.

247. The Contractor shall request instruction from the MC before removal of any protective device protecting the work of others.

248. The Contractor shall allow for removing all protective devices and thoroughly cleaning down before the Works are presented for final approval...

ELECTRICAL SPECIFICATION:

CABLE TRUNKING

249. 7.3.1 GENERAL: The Contractor shall supply and install the general lighting trunking installation.

250. The installation shall comply with PSA Standard Specification (M&E) No.1 Sections 5, 6 and 8, unless specifically modified by this Specification.

251. The trunking shall be of the single or multi-compartment steel type, the size and routing as indicated on the drawings. The smallest size of trunking shall be 50 mm x 50 mm.

252. In the multi-compartment trunking separate compartments of the trunking shall be utilised for normal lighting and small power, escape lighting and general control wiring, and full segregation shall be observed throughout the installation.

253. In plantroom areas the protection against corrosion of trunking shall be as BS 4678, Part 1, Class 3, and all trunking shall be fitted with covers and shall provide a minimum degree of protection of IP.44. The covers shall be face down, unless otherwise shown on the drawings.

254. In all other areas the protection against corrosion of trunking shall be as BS 4678, Part 1, Class 2. Trunking shall be fitted with covers and shall provide a minimum degree of protection of IP.41. The covers shall be face down, unless otherwise indicated on the drawings.

255. No trunking fittings shall be site fabricated.

APPENDIX B

BRITISH LIBRARY - PHASE 1A

LAING MANAGEMENT CONTRACTING LIMITED'S RESTRAINTS PROGRAMME WITH CONJOINED NOTES

256. 2.2 The Works comprise the design, preparation of builders work and installation/manufacture drawings, supply of materials, installation, testing and commissioning, and protection of the following:

257. 2.2.1 High Voltage Distribution System

258. 2.2.2 Low Voltage Distribution System

259. 2.2.3 Standby Generator

2.2.4 Lighting

260. 2.2.5 Small Power and Misc. Installations

261. 2.2.6 Fire Alarm and Detection

262. 2.2.7 Public Address and Voice Alarm

2.2.8 Security

2.2.9 Motive Power

2.2.10 Earth Bonding

263. 2.2.11 Propped flooring to Control Rooms

3.3 Contractor's Programmes

264. 3.3.2 Within four weeks of acceptance of tender, a Works Programme which shall elaborate on the Tender Programme. This Programme shall fully detail the production of drawings, manufacture and procurement, and shall outline the on-site installation.

265. The on-site installation Programme shall be fully detailed four weeks prior to the commencement of works on-site."

SVM's CONTRACT

95 It should not be overlooked that the responsibilities of SVM extended far beyond the electrical system of the Library, extensive and complex as that was. Within SVM there were separate design teams comprising mechanical, electrical, public health, lifts, and mechanical bookhandling teams. With overall control over those teams was a Project Leader. That Project Leader was at first Mr. Neil Cartwright, then Mr. David Liptrott, and then from mid-1988 Mr. Sworder.

96 The Secretary of State for the Environment entered into a contract under seal with SVM dated 15th June 1984. The Recitals to that agreement recite the facts that SVM had done work under previous agreements dated 7 February, 1977 and 13 May, 1977 and been paid 934,077.94 for that work. No complaint is made of that work.

97 By the 1984 agreement, SVM undertook to do further work defined as Stages of the PSA Plan of Work. The PSA Plan of work defines certain stages likely to be used in any project, not dissimilar to the stages for payment in an RIBA contract. Those stages are not to be confused with the formal Stages 1A and 1B of this Project. SVM undertook to do specified Plan of Work stages for Stage 1AA of the Project and if required, for Stage 1AB. They were so required.

98 By comparison with the agreements of LM and BB, SVM's agreement is contained in relatively few documents. The agreement itself is 8 pages long with 2 pages of Appendices, but one other document is incorporated by reference. By Clause 2i. of the Contract, the PSA/ACE Standard Conditions of Engagement for M&E Engineering Commissions (PASC) (2nd Ed, July 1980) are deemed to be incorporated. PSA encourage contractors to call those conditions simply PASC. PASC contains the Plan of Work to which I have referred. The plaintiffs rely heavily on PASC. The plaintiffs also rely heavily on Appendix B to the Agreement. Clause 3 x of the agreement requires SVM to liaise with LM in a manner which requires consideration of LM's Management Contract.

99 The terms of the SVM agreement relied on by the parties are as follows:

" NOW IT IS HEREBY AGREED as follows:...

...

266. 'the Project' means that part of the scheme indicated in the Architect's report No A4 dated May 1978 (Stage D) drawing No. AD2381 (or any subsequent agreed adjustment) - as Phase 1A and as subdivided into Stages 1AA and 1AB, ...

267. 'the Conditions of Engagement' means the PSA/ACE Standard Conditions of Engagement for M&E Engineering Commissions (PASC), Second Edition published July 1980, and amendment sheet No.1.

268. 'the Liaison Officer' means the officer appointed by the PSA to act as the liaison between the PSA and the Engineer throughout this Agreement....

269. 'the Management Contractor' means the firm of Laing Management Contracting Limited who have been appointed by the PSA to manage the construction of the Project.

Application of the PSA/ACE Standard Conditions of Engagement

270. 2. i. The PSA/ACE Standard Conditions of Engagement for M&E Engineering Commissions (PASC) (Second Edition published July 1980) shall be deemed to be incorporated into this Agreement.

271. ii. If there is any inconsistency between the provisions of this Agreement and the Conditions of Engagement then the provisions of this Agreement shall prevail...

Description of Services to be provided by the Engineer

272. 3. The Services to be provided by the Engineer are as follows:

273. i. provide the drawings and other documents required by Work Stages 2.2 and 2.3 of the Conditions of Engagement for the whole of Phase 1A of the project. Documentation is to be prepared by the appropriate dates in the agreed programmes and to accord with the contract strategy. The drawings shall be co-ordinated and as defined in Annex B.

274. ii. provide the services as defined in Work Stages 2.4; 3.1; 3.2; 3.3 and 3.4 of the Conditions of Engagement and Annex B for Stage 1AA of the project.

275. iii. if PSA decides to proceed with the Construction of Stage 1AB at a date before the expiry of the defects liability period for Stage 1AA then the Engineer shall also provide the services as defined in Work Stages 2.4; 3.1; 3.2; 3.3 and 3.4 of the Conditions of Engagement for Stage 1AB of the project.

276. iv. carry out the following additional duties as defined in the Schedule of Duties of the Conditions of Engagement: 7, 18, 18A, 23, 27, 33, 49, 50 and 56 it may also be required for the Engineer to carry out the following additional duties as defined in the Schedule of Duties of the Conditions of Engagement: 17, 25, 35, 36, 52, 63 and 65.

277. v. provide such details and drawings of the heating, ventilation, air conditioning, electrical and public health services as one [sic: are] required in the opinion of the Liaison Officer to enable the Quantity Surveyor to produce a Bill of Quantities for these services...

278. viii. provide the engineering services for essential design work on the interface of Phase 1A with future phases.

279. ix. prepare the plans and sections of the building to enable co-ordination drawings to be produced at a scale of 1/50 and such other scales as may be necessary. The information to enable the Engineer to prepare the drawings will be provided by the Architect. The drawings should be submitted to the Architect for approval.

280. x. liaise with the Management Contractor to fulfil the appropriate obligations implicit in the management contract, and carry out all additional duties arising from the management contract.

281. 4. The duties defined in Clauses 3(i), 3(ii) and 3(iii) of this Agreement shall be provided for the heating, ventilation, air conditioning, mechanical, electrical, vertical transportation, mechanical book handling and public health installations.

Costs

282. 5. It will be the responsibility of the Engineer to ensure that the design of the engineering installations is within the approved estimates.

Liaison Officers Responsibilities

283. 6. The Liaison Officer will be Mr. J.P.Perkins ...or such other person as the PSA may from time to time appoint. The Liaison Officer will:

284. i. be responsible for communicating to the Engineer the PSA's instructions in connection with this Agreement.

....

PSA Responsibilities

285. 7. i The PSA will retain responsibility for the financial control of the project ....

286. ii The PSA will retain overall responsibility for contractual procedure, .... including settlement of disputes and claims and will seek agreement on contractual strategy with the Architect and Associate consultants.

Site Staff

287. 9. In the event of the need for site control staff when the Engineer is required to provide services under Work Stage 3 of the Conditions of Engagement, the engagement of such staff and their terms and conditions of engagement will be the subject of a separate agreement.

Fees

288. 10. Fees shall be payable to the Engineer in consideration of the services to be performed by him under this Agreement on the following basis:

289. i. scale fees for the services described in clause 3(i) shall be on the basis of a percentage of the Accepted Tender Amount as follows:

9.8% of the first 130,000 ....

8.8% of the next 170,000 ...

290. 45% of 7% of the remainder of the Accepted Tender Amount.

[Clauses 10 ii to 10 ix provided for percentage fees for the services described in clauses 3(ii) to 3(x) of the Agreement.

291. There were provisions for adjustment of the Accepted Tender Amount. The Accepted Tender Amount was 12,142,000]

ANNEX B

292. 1. The drawings to be provided by the Engineer shall in addition to the requirements in the Conditions of Engagement be of such comprehensiveness and detail that they can be adopted by the Contractors as Working Drawings and that the Contractors will only have to augment these drawings with installation drawings showing fabrication details for specially manufactured items which might include ductwork, pipework, fixings and supports and mainly where site measurement is inherent in the installation of the service.

293. 2. Where critical, electrical conduit and trunking sizes and routes will be detailed.

294. 3. Where required additional drawings to a scale of not less than 1/20 shall be prepared to amplify details in certain areas particularly where the density of services dictates accurate co-ordination.

295. 4. The Engineer shall also during the course of construction amend and update the drawings as necessary to control the installation of the services in accordance with the Engineers' co-ordinated design intention.

296. 5. The Engineer shall provide all necessary Builders Work information to enable the Architect and Structural Engineer to complete their design work and the Contractor to carry out this Builders Work except insofar as detail of minor items may not be available until the issue of fabrication details of specially manufactured items."

297. The terms of PASC relied on by the parties are as follows:

"PSA/ACE STANDARD CONDITIONS

OF ENGAGEMENT FOR

M&E ENGINEERING COMMISSIONS (PASC)

FOREWORD TO THE FIRST EDITION...

298. The Standard Conditions, and the Appendices thereto, are for use in connection with commissions from the PSA, and relate specifically to PSA procedures and documentation. ...

1. DEFINITIONS

Project Manager means the PSA Officer with overall responsibility for the Project.

Lead Consultant means the Consultant as defined in the PSA Consultant's Procedural Guide.

Superintending Officer [as amended] means the person to be named in the contract(s) relating to the Project and responsible to the Project Manager in accordance with the PSA Consultant's Procedural Guide and the terms of the Contract(s).

Liaison officer means the PSA Officer named as the person responsible to the Project Manager through the Consultant Liaison Officer for supervising the commission executed by the Consulting Engineer. Where the M&E Consulting Engineer has been appointed Lead Consultant the Liaison Officer automatically becomes the Consultant Liaison Officer.

Additional Duty means a duty in Condition 4 marked with an asterisk. This indicates that the duty is additional to those in ACE Model Form of Agreement `D'. Duties 23* and 33* will be included in all normal Partial and Full Commissions, except where Duty 7* is ordered. Other asterisked duties are optional and will be performed only if specifically included in the letter of invitation or by later written authority from the LO...

Contractor means any person or persons, firm or company under contract to the PSA or to a main contractor to perform work and/or supply goods in connection with the Works.

Tender Drawings means drawings in sufficient detail to enable tenderers to interpret correctly the design and to submit competitive tenders for the execution of the Works.

Co-ordination Drawings means drawings or sketches (to a scale of not less than 1/50 unless agreed otherwise by the LO) showing the inter-relation of two or more Engineering Services/Other Services and their relation to the building components, being in sufficient detail to demonstrate that the Services will be properly separated from each other and can be satisfactorily installed and maintained.

Installation Drawings means drawings normally prepared by the Contractor showing details of the Contractor's proposals for the execution of the Works. These drawings should be in sufficient detail to enable the Works to be installed.

As Installed Drawings means drawings normally prepared by the Contractor showing clearly the general scheme and details of the work completed, particularly hidden or covered items which are not readily accessible...

2.1 PSA PLAN OF WORK...

Stages

1. Pre-Design

.....

2 Design

299. 2.1 Outline Design To prepare alternative outline proposals and select the preferred alternative

300. To develop the preferred design sufficiently to obtain client, user and statutory approval.

301. 2.2 Final Sketch Design To develop the approved outline design into a design solution fully integrated with constructional, structural and services requirements.

302. To validate the solution against the brief and the constraints and obtain approvals.

303. 2.3 Detail Design To prepare and have approved detail design drawings specifications, schedules and BQs.

304. 2.4 Contract Preparation To agree and complete negotiation or tender procedures and documentation for contractor, nominated sub-contractors and suppliers for B & CE and M & E work

305. 3 Construction

306. 3.1 Construction Pre-Planning To establish construction control and communication procedures and programmes

307. 3.2 Construction Control To administer the contract up to completion on site

308. To test and commission

309. 3.3 Construction Completion To do the inspection and documentation required for construction completion and handover

310. 3.4 Contract Completion To complete measurement and valuation of VOs, to consider and recommend on claims and counter-claims, to agree and certify the final account

311. To agree all consultant professional fees & expenses.

312. 4. Post Construction

..............

4. SCHEDULE OF DUTIES

Preamble

313. This schedule, conforming to the PSA Plan of Work, lists all the duties likely to be required in commissions connected with typical PSA Projects. Some of the duties are optional and any one or more of them may be added to a particular Partial or Full Commission as the PSA requires...

STAGE 1 - PRE-DESIGN

DUTY NO.

..........

STAGE 2.1 - OUTLINE DESIGN...

314. 8 Investigate the brief and all other Project and site information supplied or available, including relevant PSA Technical Instructions, Specifications and Procedural Guides. Visit the site as necessary to check the main features.

315. 9* [as amended] On receipt of the LO's instructions, carry out and report on a full site inspection/a site survey of existing facilities/a special investigation/a special analysis/such specified task(s) as are detailed in the LO's instructions.

316. 10 Agree with the design team and provide the LO with a list of key dates for the Outline Design and subsequent Plan of Work stages to indicate the programme of work included in the commission. Thereafter submit to the LO monthly progress reports showing the percentage of work completed in relation to each key date (up to and including the completion of Plan of Work Stage 3.1) and revision of those dates where necessary...

317. 13* Collaborate fully with other members of the design team and investigate in appropriate detail, the available range of options affecting:-

318. A. Built form: including building size, shape, orientation, sub-division, shading, weather and noise protection, etc;

319. B. Construction standards: including glazing ratios, thermal and noise insulation, thermal capacity, natural and artificial illumination and ventilation, etc;

320. C. Engineering Services and components; including heating, hot water, cooling, ventilating, lighting, communications, and lifting or transportation equipment, etc. their operational relationships, methods of control and means of energy supply, distribution and recovery, (in addition to the basic requirements of Duty 12).

321. Clarify and as necessary seek amendments to the design brief where this will lead to improved elemental or total project solutions at lower capital or life cycle costs. Assist in producing optimum outline design proposals based upon the functional, technical, economic and energy parameters in the design brief, as finally agreed...

322. 16 Agree with the other members of the design team, the preferred outline design solution for the Project. Provide any drawings, sketches or other documentation necessary to clarify the outline design proposals and collaborate in preparing a joint report to the PM for approval to proceed.

323. 18* Provide Co-ordination Drawings at appropriate stages up to and including Stage 2.3. Other Services to be included in these drawings are to be agreed by the LO.

324. 18A [by amendment] Undertake the pre-selection of plant and equipment for a particular Engineering Service (or particular Engineering services) as agreed by the LO. List the preselected plant and equipment in the tender documents by maker's name, model or catalogue number, and specify any requirements as to performance. This Duty includes the responsibility for specifying design requirements relating to other professions.

STAGE 2.2 - FINAL SKETCH DESIGN

325. 19 Assess and prepare schedules of power, heating and cooling loads as applicable, and confirm insulation and glazing standards with the design team. Confirm locations and spaces for plant and for routing of Engineering Services.

326. 20 Finalise the proposed design intentions for each of the Engineering Services and obtain LO approval in principle.

327. 21 Develop the sketch designs and produce a sketch of structural and planning requirements associated with the Engineering Services, showing locations and approximate sizes of plant rooms, major items of plant, major ducts and service runs: also approximate weights of any item affecting the structural design...

328. 24 Submit Final Sketch Designs and associated estimates to the LO for consideration, comment and decision to proceed further.

STAGE 2.3 - DETAIL DESIGN...

329. 26 Agree with the LO the extent of the Tender Drawings and specifications, and the proposed scope and demarcation of each contract. Collaborate throughout this stage with the other members of the design team to ensure that the drawings of the Engineering Services are properly co-ordinated with the building design...

330. 28 Complete the Tender Drawings for all Engineering Services...

331. 35* Carry out design changes (from and including Stage 2.3) and execute any necessary work consequent upon and resulting from any change of requirement outside the control of the Consulting Engineer.

STAGE 3.1 - CONSTRUCTION PRE-PLANNING

332. 42 Provide Contractor(s) with the necessary additional information to enable them to prepare their Installation Drawings.

333. 43 Resolve queries relating to the interpretation of the M&E designs, and attend meetings as considered necessary for that purpose by the LO...

334. 44 Meet the PSA site supervisory staff, advise them of the M&E design intentions, and check that appropriate M&E contract documentation is available on site. Advise M&E site supervisory staff of their financial limits for the issue of SWO's...

335. 46 Examine the Contractor's proposals for the execution of the Works and comment to the Contractor as necessary during Stages 3.1 and 3.2

336. 47 Collaborate with the other members of the design team in resolving any design co-ordination problems in the construction drawings for the Project as necessary during Stages 3.1 and 3.2.

STAGE 3.2 - CONSTRUCTION CONTROL

337. 48 Make site visits of inspection to ensure that the Works are being properly supervised and executed in accordance with the design and specifications, and otherwise to safeguard good engineering practice...

338. 57 Approve Contractor's detailed proposals and programme for commissioning the Works. Arrange for any special testing required by PSA to be included. Make arrangements with the LO for specialist staff of PSA or its client to be available, if required, to assist in witnessing and recording these tests.

STAGE 3.3 - CONSTRUCTION COMPLETION...

339. 59 Witness and approve all the commissioning trials and tests and inspect all Services included in the commission to ensure (i) compliance with designs and specifications: and (ii) correct setting up and satisfactory operation.

340. 60* Carry out full commissioning trials and tests and inspect all the Engineering Services to ensure (i) compliance with designs and specifications: and (ii) correct setting up and satisfactory operation.

341. Report results to the LO and compare performance achieved with design performance and make recommendations...

6. LIAISON

342. Close liaison is to be effected with the associated architects, civil engineers and quantity surveyors throughout all stages of the work and shall result in the supply of all necessary information including outline structural and building requirements to allow the design programming and costs for the Project to be prepared. Wherever possible PSA specifications, engineering instructions and data shall be incorporated in the designs. Drawings, specifications and estimates are to be submitted for approval as required for the LO to be satisfied that the PSA's technical and cost requirements have been met including the capital, operating and maintenance costs of the installations. PSA approval of the Consulting Engineer's drawings, specifications, estimates and any calculations that may be offered in support thereof, does not diminish the Consulting Engineer's responsibility for the adequacy, efficiency and safe working of his designs and he will be responsible for ensuring that they are within any limitation imposed by the estimate formally approved by the PSA...

7. PSA OBLIGATIONS

343. The PSA shall supply free of charge to the Consulting Engineer:

344. A. Plans and sections of all buildings (to a scale of not less than 1/100); together with such drawings to a scale of 1/50 and essential details (to a scale of not less than 1/25) as may be necessary for the production of Co-ordination Drawings under Duty 18*; and all such site plans (to a scale of not less than 1/1250) and levels as the Consulting Engineer may reasonably require.

345. B. All pertinent data and information, together with such assistance as shall reasonably be required for the timely carrying out by the Consulting Engineer of his duties under his commission.

346. C. In the event of the Works involving alteration or modification to existing services, it being impracticable for the PSA to supply the information called for under Condition 7B hereof, the PSA may appoint the Consulting Engineer under Duty 9* to undertake such work as may be necessary to obtain all pertinent data and information...

8. CONSULTANT'S PROCEDURAL GUIDE

347. In executing the commission the Consulting Engineer will be required to adhere to the procedures in the PSA Consultant's Procedural Guide insofar as they are applicable to the commission and not inconsistent with Condition 4. The LO will draw the Consulting Engineer's attention to the procedures and any modification thereto which are relevant to the particular commission.

9. ALTERATIONS OR MODIFICATIONS

348. All members of the design team are expected, in each other's interest, to exercise proper control in developing their designs so that abortive work is minimised. All necessary amendments to calculations drawings or other documents arising from responsible interdisciplinary exchanges in development from the PSA brief will be made at no extra charge to the PSA.

10. SITE SUPERVISION

349. M&E site supervisory staff will normally be appointed by the PSA. Exceptionally however the Consulting Engineer may be asked to appoint such staff. In this case, the Consulting Engineer will be reimbursed under separate arrangements. In either case, such staff will be under the instructions of the Consulting Engineer on technical and professional matters.

11. CARE AND DILIGENCE

350. The Consulting Engineer shall exercise all reasonable skill, care and diligence in the discharge of the duties agreed to be performed by him and insofar as any of these duties are discretionary, shall act fairly as between the PSA and the Contractor. The Consulting Engineer shall not without the prior approval of the LO authorise any modification of the Works involving extra cost outside the Consulting Engineer's delegated powers....."

  1. The evidence showed that no separate arrangements were made for the employment of extra supervisory staff under Condition 10. There was no evidence that the LO drew the attention of SVM to any procedures in accordance with Condition 8. The Consultant's Procedural Guide mentioned in Condition 8 is a document of 110 pages to which some reference was made during the trial.

CONSTRUCTION OF THE CONTRACTS AND COMMON LAW DUTIES

101 Construction of the contracts is made particularly difficult by the use of some PSA standard terms which are not appropriate for the type of contracts entered into. This was probably the first large project undertaken by the PSA as a Construction Management project. A mix of documents was used, some of which were appropriate for a traditional Management Contract but do not sit easily with the concept of Contract Management nor with other contractual documents.

102 In interpreting the contracts, some meaning should be given to all terms so far as possible, but the whole must be interpreted to make a commercially sensible scheme.

103 I heard evidence bearing on the interpretation of the contracts. Much of that evidence was inadmissible as going too far into matters of law: but it would have been difficult for the witnesses to have separated inadmissible evidence from their admissible evidence of commercial practice and surrounding circumstance. Moreover, the evidence, particularly of Mr. Honer, of the interpretation of SVM's duties by the SO and DNH is relevant when considering the standard of performance accepted by the plaintiffs.

104 The duties of SVM principally in question concern duties relating to (a) design and (b) supervision and inspection.

105 Design duties are alleged to have been broken in that (i) lid down trunking was specified instead of lid up; and (ii) the system was so designed that there were excessively long runs of cable; and (iii) that the system was so designed that there were excessive populations of cables in individual channels of the trunking.

106 Failures in supervision and inspection are alleged on the basis that bad materials were used and bad workmanship applied undectected.

107 There are also criticisms founded on SVM's duties to provide drawings, to co-ordinate drawings, and to keep their design under review.

108 The principal concerns of the plaintiffs with regard to the design duties of SVM are expressed by their counsel in the following questions:

351. (1) What was the scope of SVM's duty to design (a) in contract and (b) at common law?

352. (2) In particular:

353. What duties did SVM have:

354. (a) in relation to general "buildability" and "supervisability"?;

355. (b) to review the design

356. (c) in relation to the co-ordination of drawings and information generally?

109 So many duties were imposed on SVM that one cannot simply consider their duties in the air. A selection has to be made of those relevant to the complaints made about SVM. Moreover, the duty of care does not exist in the air. It is also necessary to consider the extent of the duty and the relationship of the duty to the loss alleged. It is for that reason that I turn to consider questions of loss and damages at this unconventional point of this judgment.

110 The governing principles were illustrated by the House of Lords in Banque Bruxelles. v. Eagle Star [1997] AC 191. That was a case of negligent valuation, but the principles are of general application. In many cases, when assessing damages, it is sufficient to consider explicitly what is the correct measure of damages for the loss which the lender has suffered. But in all cases, there is a preceding question, what is the kind of loss to which the wrongdoer's duty relates? The answer to that question is usually so simple that one overlooks the fact that one has tacitly asked and answered that question, and one moves to the next question which was the starting point of the Court of Appeal in Banque Bruxelles, "What is the correct measure of damages for the loss suffered?" In the less usual case, including the valuation cases, and the present case, it is necessary to ask expressly, "What are the duties owed, and do they extend to the kind of loss suffered by the plaintiffs?" The assessment of damages becomes not just an exercise tacked on after consideration of the issues of duty, breach, and causation, it is a part of the consideration of all three of those issues and particularly of the duty.

111 In Banque Bruxelles at 210, Lord Hoffman said,

357. "Much of the discussion ... has assumed that the case is about the correct measure of damages for the loss which the lender has suffered. The Court of Appeal began its judgment, at pages 401 - 402, with the citation of three well known cases (Robinson v. Harman (1848) 1 Exch. 850, 855; Livingstone v. Rawyards Coal Co. (1880) 5 App. Cas. 25, 39; British Westinghouse Electric and Manufacturing Co. Ltd. v. Underground Electric Railways Co. Ltd of London Ltd. [1912] AC 673, 688-689) stating the principle that where an injury is to be compensated by damages, the damages should be as nearly as possible the sum which would put the plaintiff in the position in which he would have been if he had not been injured. It described this principle, at page 403, as 'the necessary point of departure'.

358. I think that this was the wrong place to begin. Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled as compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation. A correct description of the loss for which the valuer is liable must precede any consideration of the measure of damages. For this purpose it is better to begin at the beginning and consider the lender's cause of action."

359. Those words lead me to cite that authority at this stage before construing the contracts and considering the common law duties.

360. Later, at page 211, Lord Hoffman said,

361. "A duty of care such as the valuer owes does not however exist in the abstract. A plaintiff who sues for breach of a duty imposed by the law (whether in contract or tort or under statute) must do more than prove that the defendant has failed to comply. He must show that the duty was owed to him and that it was a duty in respect of the kind of loss which he has suffered. ... As Lord Bridge of Harwich said [in Caparro v. Dickman [1990] 2 AC 145] at page 627:

362. 'It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.'

....

363. There is no reason in principle why the law should not penalise wrongful conduct by shifting on to the wrongdoer the whole risk of consequences which would not have happened but for the wrongful act... But that is not the normal rule. ... Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful. In the case of liability in negligence for providing inaccurate information, this would mean liability for the consequences of the information being inaccurate."

112 The duty defines the relevant consequences. But the reverse is also true. If the plaintiff by his pleading limits the relevant consequences, the limit on the consequences necessarily limits the number of relevant duties. In considering SVM's duties, it is important to remember what has been sometimes overlooked in this case, that because the damage claim is limited to loss arising out of damage to cables, the only relevant duties are duties to avoid the consequence of cable damage and loss of DNH arising from cable damage. The damages claimed are for the cost of reparation of cable damage and for the costs of delay arising from cable damage. There is no claim in respect of delay from any other cause, nor is there any claim for disruption making the work more expensive for BB or anyone else.

113 What was said in the Court of Appeal in Banque Bruxelles on the subject of causation is also relevant in this case, and I shall refer to it at a later point in this judgment.

SVM's EXPRESS DESIGN OBLIGATIONS UNDER ITS CONTRACT

114 SVM's express duties are set out in the contract under seal entered into by SVM with the Plaintiff (or its predecessor department) dated 15th June 1984 incorporating the PASC conditions from which I have quoted extensively. That contract also incorporated the relevant obligations of the Management Contract.

115 DNH rely particularly on certain express terms which they say go to a duty that the design shall be "buildable", namely the provisions of one of the PSA Standard Specifications known as

364. M&E 1. By reason of one of the chains of references bedevilling these contracts, SVM were contractually bound to comply with the terms of M&E 1. The contract required compliance with PASC; clause 8 of PASC required SVM "to adhere to the procedures in the PSA Consultant's Procedural Guide insofar as they are applicable to the commission and not inconsistent with Condition 4.... "; and the Consultant's Procedural Guide provided at para 2.1.5 that all designs are to satisfy the latest appropriate British Standards, Codes of Practice or PSA Standards and also provided that PSA Standards include the General Specification, Standard Specifications (M & E), ..." etc.

365. M&E 1 includes the following provision:

366. "8.05.7 Trunking with the cover on the side or bottom shall be fitted with removable cable retaining straps at intervals not exceeding 1000 mm...."

367. "8.08.4 Trunking shall be positioned so that adequate clearance is provided for access to the wiring. It is preferred that the covers shall be on the top or sides of the trunking, but where this is impracticable covers may be on the bottom, subject to the approval of the SO."

116 Counsel for DNH submits that M&E 1 requires the lids of the trunking to be lid on the top or lid on the side, unless it is impracticable, and then the arrangement of the lid on the bottom requires the approval of the SO.

117 I do not accept that submission. There is a very real difference between the expression of a preference in such a document and the expression of a requirement. Those provisions of M&E 1 are a clear indication that lid down trunking is a possible option though not the one preferred by the PSA. SVM have made it clear that their preference was for lid-down trunking for reasons of access for installation and inspection. It is plain that on this project, in some situations access was easier with lid down than with lid up and in other situations the reverse was the case. SVM preferred not to have a mix of lid down and lid up because there would be problems at the join between lid down and lid up trunking. Other engineers might have taken a different view, but I see nothing in M&E 1 forbidding the use of lid down, indeed the contrary is the case.

118 As to the approval of the SO, I heard the evidence of Mr. John Honer, the SO from May, 1983 to May, 1991. He said in cross-examination that he did not himself give such an approval, but he said,

368. "Because I had a very early agreement with the Project Manager that, because I was not a qualified electrical engineer or mechanical engineer, that all such approvals would go to him and to his liaison officers. So I am not in a position to judge whether SVM discussed that matter with the Project Manager or the liaison officer."

369. Mr. Sworder said in evidence that approval was given by the liaison officer: he supported that evidence by reference to a note of PSA Liaison Meeting number 29 (one of many such meetings) when Mr. J. Perkins, the PSA M&E Liaison Officer attended SVM's offices. That note does not show when approval was given, but at the meeting the trunking in the Basement Bookstacks was said to be complete. It is clear that the PSA M&E Liaison Officer did approve the lid down design which was apparent to anyone who looked at SVM's design drawings.

119 The choice of lid down trunking made by SVM was apparent to all, including the SO acting through the PSA Liaison Officer, from the plans submitted by SVM and neither the SO nor the PSA has ever suggested that the use of lid down was forbidden by M&E 1. For that matter, it was not until years after BB entered on their contract that anyone suggested that lid down trunking was forbidden by M&E 1 or was unbuildable.

120 I reject the plaintiffs' submissions made in reliance on M&E 1.

SVM's DUTY TO EXERCISE ALL REASONABLE SKILL AND CARE

121 PASC Condition 11 imposed an express duty that SVM "shall exercise all reasonable skill, care and diligence in the discharge of the duties agreed to be performed by him...".

370. SVM also owed DNH a duty at common law to carry out all of its duties with reasonable skill and care.

122 The standard of reasonable care and skill may be established by reference to the general practice of Mechanical and Electrical Engineers. The test, classically outlined in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, was expressly applied in relation to architects by the Court of Appeal in Nye Saunders and Partners v Alan E Bristow (1987) 37 BLR 92 and applies equally to Consulting Engineers. In Nye Saunders and Partners, Stephen Brown LJ said @ p.103:

371. "The duty and standard of care to be expected from Mr Nye was accepted as being that which applied to any profession or calling which required special skill, knowledge or experience. The test is that formulated in a medical negligence case - Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Where there is a conflict as to whether he has discharged that duty, the courts approach the matter upon the basis of considering whether there was evidence that at the time a responsible body of architects would have taken the view that the way in which the subject of enquiry had carried out his duties was an appropriate way of carrying out the duty, and would not hold him guilty of negligence merely because there was a body of competent professional opinion which held that he was at fault."

123 There are 2 important aspects to the duty to design which are relied on by DNH:

372. A. The duty to design a building which is "buildable" and "supervisable";

373. B. The duty to review a design.

124 The designer's design must be such that those who are responsible for implementing it, and those who are responsible for supervising that implementation, can do so by the exercise of the skill and care ordinarily to be expected of them: see Equitable Debenture Assets Corporation Ltd v William Moss Group Ltd (1984) Con LR 1 per His Honour Judge Newey QC at p.21:

374. "I think that if implementation of part of a design requires work to be carried out on site, the designer should ensure that the work can be performed by those likely to be employed to do it, in the conditions which can be foreseen, by the exercise of the care and skill ordinarily to be expected of them. If the work would demand exceptional skill, and particularly if it would have to performed partly from scaffolding and often in windy conditions, then the design will lack what the experts in evidence described as 'buildability'.

375. Similarly, I think that if a design requires work to be carried out on site in such a way that those whose duty it is to supervise it and/or check that it has been done will encounter great difficulty in doing so, then the design will again be defective. It may perhaps be described as lacking 'supervisability'.

376. In my view, applications of sealant in accordance with the design were possible in this case. A person with Mr Plough's experience, acting carefully and with determination, could no doubt have carried them out correctly. However, I think that ordinary fitters, even if they were not, as described by Mr Rae on 22 December 1979, 'getting through the job as quickly as possible', could not have been expected, or relied upon, especially in view of working conditions, to do the job properly. It follows that in my opinion the design did not meet the requirements of buildability."

125 DNH's primary case is that, given SVM's design, it would have been impossible, even if special or exceptional care had been taken, to avoid substantial damage being caused to the cables. It was submitted on behalf of DNH that even if exceptional care might have avoided some damage being caused, SVM's duty is to be tested against the standard of a reasonable degree of skill and care of the ordinary electrician, particularly if no special instructions on installation are given. It was said that,if, given that amount of care, damage was inevitable, then the electrical containment system can properly be said to have been "unbuildable" in the sense used by Judge Newey.

126 I gladly follow the guidance given by Judge Newey, but the words "those likely to be employed to do [the work]" used by Judge Newey are important and are to be related to the differing facts of each case. It is not to be assumed in every case that the work is to done by the "ordinary" tradesman, in this case the "ordinary electrician" to adopt the description used by counsel. The designer is entitled to look at the facts of the project on which he is engaged and consider what is the standard of the workmen required by the employer and agreed by the contractor to be provided do the particular work. For that one looks to the BB contract.

127 Terms of the BB contract relevant to the standard of workmen and workmanship and to the question of buildability generally are as follows:

"METHOD STATEMENT

377. 1.3 All installation and testing will be carried out by or under the supervision of directly employed qualified staff, and the workmanship assured by regular inspection by the Manager having responsibility for this function within the Company..."

378. In the event, BB used the services of many men who were not directly employed.

"Specification

379. Furnish a competent and adequate staff as necessary for the proper administration, co-ordination, supervision and superintendence so that they will be available at the time they are needed for the work, the measurement of the Works and where appropriate for the preparation of drawings etc. Keep an adequate force of skilled workmen on the job to complete the work in accordance with the agreed programme..."

"QUALITY/TESTING/APPROVALS (continued)

380. 1160 WORKMANSHIP: a high standard of workmanship and finish is required and the Contractor must clearly understand that any work which is not, in the opinion of the MC, up to such standard, will have to be taken down and made good or replaced with new at the Contractor's expense, including consequential costs.

381. The Contractor shall carry out the Works in accordance with the specification and good practice and in a sound and workmanlike manner. If any information contained in drawings or in a specification appears to conflict with accepted good practice, the Contractor shall bring this to the attention of the MC who shall give an instruction to clarify the matter..."

128 The standard of workmanship required was not just an ordinary or "reasonable" standard but "a high standard of workmanship and finish". It is no accident that it is in the same paragraph that BB were required to bring to the attention of the MC (LM) "any information contained in drawings or in a specification [which] appears to conflict with accepted good practice". BB were undertaking to provide workmen capable of producing finished work of a high standard when doing what was required by the drawings and specification except insofar as they drew to the attention of the MC anything in the drawings or specification which to them appeared "to conflict with accepted good practice". BB did not tell the MC or SVM or anyone else that to require the trunking covers to be lid down was contrary to good practice, despite the fact that the Specification (as well as the drawings) plainly required lid down trunking as follows (with my emphasis):

"In plantroom areas the protection against corrosion of trunking shall be as BS 4678, Part 1, Class 3, and all trunking shall be fitted with covers and shall provide a minimum degree of protection of IP.44. The covers shall be face down, unless otherwise shown on the drawings.

In all other areas the protection against corrosion of trunking shall be as BS 4678, Part 1, Class 2. Trunking shall be fitted with covers and shall provide a minimum degree of protection of IP.41. The covers shall be face down, unless otherwise indicated on the drawings."

129 SVM were entitled to assume that their design would be executed by a workforce composed of directly employed labour provided by a contractor with one of the best reputations in the world, bearing in mind that that contractor had undertaken to work to a high standard (not just a "reasonable standard") on one of the most prestigious buildings to be built in this country in this century. (In this connection, it is to be noted that counsel for DNH submitted in his closing submissions that the nature of the project was relevant in considering the standard to be expected of SVM: he submitted that having regard to the nature of the project, "the highest reasonable competence" was required of SVM). SVM were also entitled to assume that this highly skilled contractor would, in compliance with its contract, draw to the attention of SVM, through the MC, any requirement of the design which was contrary to good practice. Many years after the event, in this trial it was suggested that even if there were good reasons for lid down trunking in areas where there were ceilings, those reasons did not apply in the plantrooms. There is some merit in that contention, but it does not amount to showing bad practice, and why did BB not mention it when tendering to the Specification which (see previous paragraph) distinguished between the trunking in plantrooms and other areas as regards IP41 and IP44 protection only?

130 I return to the submission which DNH now submit as their "primary case", namely that, given SVM's design it would have been impossible even if special or exceptional care had been taken to avoid substantial cable damage. I find that DNH and BB are urging too low a standard of care as the standard to be applied by BB. "Exceptional" care was not required of BB, but a high standard was required: I am not sure if that rates as a special care in counsel's terminology, but it is higher than "ordinary care". Even if they were relying on the correct standard of care, both DNH (through the PSA) and BB should have objected to the design at the time of tendering, or in default of such objection being accepted, BB should have refrained from tendering. Having undertaken a task which they now say was too difficult (although the difficulty, if it existed, must have been apparent at the stage of tendering), BB cannot now be heard to say that the task which they undertook with open eyes was impossible of achievement. Equally, DNH, who had skills available to them through the PSA which matched the skills of BB, cannot now be heard to complain that they entered into a contract with BB which was made impossible of fulfilment by virtue of the clear and open requirement of lid down trunking made by that contract.

131 It does not lie in the mouth of BB to complain that it was not within the capability of their workforce to install cabling to a high standard in lid down trunking, and it does not lie in the mouth of DNH to rely on and adopt that case against SVM.

132 I should add that I am convinced by the evidence (to which I shall refer later) that the reason why BB did not say when tendering or when doing the work that to require the trunking covers to be lid down was contrary to good practice, was that it was not contrary to good practice.

133 Taking a further point from the passage from the judgment of Judge Newey in Equitable Debenture Assets Corporation Ltd v William Moss Group Ltd from which I have quoted, DNH submit that the design must be "supervisable", capable of being executed under supervision so that the quality of work can be checked by the supervisor. As to that, I agree with what was said by Judge Newey, but subject to a qualification. Some work is by its nature difficult to supervise and such that no design can remove the difficulty of supervision. There are obvious difficulties about supervising the work of a steeple-jack or of a diver working on an underwater construction or repair. Equally, there are difficulties about supervision of the work of an electrician in places where access for inspection is difficult. The overall method can be supervised, and in many respects it can be seen by the supervisor if the electrician is going about his work in the wrong way, but in one vital respect the quality of the work rests very much on the individual actually doing the work. When a cable is being led or drawn through a confined space, the onlooker can see whether the overall method used is correct, but the man (and oddly enough it does always seem to be a man) actually doing the work is the only one who can feel the tug on the cable which indicates that some damage may be done if extra care is not taken at that point with that cable. If, having felt the tug, the workman carries on regardless, there is little that the supervisor can do about it except by inspection afterwards and inspection is difficult unless spot checks are made on individual cables while the work is in progress. That is one reason why the quality of the workforce is vitally important.

134 On the evidence, I do not see that it was any more difficult to supervise either during the work or by inspection afterwards with lid down than with lid up trunking. There are difficulties about inspection inherent in both, but as a general rule one was not more difficult than the other: in specific places one might be more difficult to inspect than the other. For example, where trunking was set tight up close to a ceiling, lid down trunking would be the only type of trunking which could be inspected.

DUTY TO KEEP DESIGN UNDER REVIEW

135 SVM were under duties both express and at common law to keep their design under review.

136 Annex B to SVM's agreement provided:

382. "4. The Engineer shall also during the course of construction amend and update the drawings as necessary to control the installation of the services in accordance with the Engineers' co-ordinated design intention."

383. That provision placed a continuing duty on SVM to ensure, by revisions to drawings if necessary, throughout the course of construction that effect was given to their original design intention. Amendments were in any event required by the changes to the overall design of the building. Events occurring in the course of construction also might require changes in SVM's design.

137 DNH also rely on common law duties placed on SVM to keep their design under review.

138 At common law, the designer is under a continuing duty to keep his design under review to see whether in fact it is and remains appropriate as construction progresses. It is not open to the designer to defend an allegation of negligent design by claiming that the design was executed with reasonable skill and care at the outset and that the inappropriateness of the design was brought about by external factors over which the designer had no control. See Brickfield Properties v Newton [1971] 1 WLR @ p.873 E-F per Sachs LJ:

384. "Where there are found in completed buildings serious defects of the type here under review the facts relating to design, execution and superintendence are inextricably entangled until such time as the court succeeds in elucidating the position through evidence. The design has inevitably to be closely examined even if the only claim relates to superintendence, and all the more so if the designs are, as is alleged here, experimental or such as need amplification as the construction progresses. The architect is under a continuing duty to check that his design will work in practice and to correct any errors which may emerge."

139 The duty to review the design extends throughout the life of the construction process itself: Chelmsford DC v TJ Evers 25 BLR 99, per HHJ Smout QC, at p.106; Equitable Debenture Assets Corporation Ltd v William Moss Group Ltd (1984) Con LR 1, per HHJ Newey QC held at 24; L.B. Merton -v- Lowe 18 BLR 130 per HHJ Stabb QC; Victoria University of Manchester v Hugh Wilson 2 Con LR 43 per HHJ Newey QC at 78; and will in some circumstances even extend beyond practical completion: University of Glasgow v William Whitfield (1988) 42 BLR 66 at 78.

140 DNH submit that the duty on SVM was particularly onerous because, so it was submitted, SVM's use of lid-down trunking in a construction of this type is properly to be regarded as "experimental". The case put forward by DNH is that although lid-down trunking is a well known construction method, it is usually used only where the volume of cables to be carried is light and where there are to be long straight runs of trunking or in particular locations where problems of access or other technical requirements make it expedient or sensible to use a limited amount of lid-down trunking. For reasons which I shall give later, I do not accept that lid-down trunking is properly to be regarded as experimental in this context. I do agree that where a designer adopts an experimental or unusual approach, the duty on him to keep his design under review, is particularly high.

141 DNH also submit that a designer who decides to take a novel, or relatively novel, approach to a particular problem should also ensure that his client is aware of the risks being taken: see Victoria University of Manchester v Hugh Wilson 2 Con LR 43 per HHJ Newey QC at 74:

385. "For architects to use untried, or relatively untried materials or techniques cannot in itself be wrong, as otherwise the construction industry can never make any progress. I think however, that architects who are venturing into the untried or little tried would be wise to warn their clients specifically of what they are doing and to obtain their express approval."

386. Failure to warn the client or the contractor (BB) has not featured high in the points taken in this case and in the circumstances of this case I think there is nothing in it.

CO-ORDINATED AND COMPREHENSIVE DRAWINGS

142 The express terms of the contract require SVM to provide co-ordinated drawings "of such comprehensiveness and detail that they can be adopted by the Contractors as Working Drawings " (Annex B, Clause 1). Much time and energy was directed to construing the terms of the contract to determine what degree of detail was required in those drawings and there was also evidence about alleged breaches of that obligation. If there was breach, it may be that BB spent more time than they ought to have done in preparing their own drawings and it may be that there was some delay in provision of drawings by SVM (I do not say that there was such delay). Certainly, in at least one area, there was such difficulty in determining precise routes for cabling that it was left to BB to determine the routes and also responsibility was handed over to BB for making extra drawings, for which they were paid by DNH.

143 However this duty be defined and applied, it was not a duty in respect of cable damage. The duty was aimed at the division of responsibility and cost between the designers and draughtsmen of SVM on the one hand and those employed by BB on the other. The type of loss which might be suffered by DNH as a result of breach of that duty might be a claim from BB for extra work above their contractual undertaking, or delay due to delayed production of drawings, or extra cost of materials and labour and delay through routes not being as efficiently planned as they should have been. Cable damage and delay from cable damage, the only pleaded losses, are not within the scope of the duty. The duty is therefore irrelevant and it is not necessary to construe its precise meaning in terms of the detail which should have been included on the drawings.

144 There is a further express duty of similar effect. PASC Duty 46 imposed on SVM a duty to

387. "Examine the Contractor's proposals for the execution of the Works and comment to the Contractor as necessary during Stages 3.1 and 3.2 [Construction Pre-Planning and Construction Control]".

388. It has been submitted that that duty imposed on SVM a responsibility in respect of routing and other matters proposed by BB. Whether the routing was selected by BB or SVM, SVM had a duty with regard to it. For present purposes, that duty was limited (so far as my consideration of it is concerned) to a duty to ensure that the proposed routing did not cause cable damage.

 

SELECTION AND APPROVAL OF EQUIPMENT AND MATERIALS

145 PASC Duty 18A, added by Amendment Sheet No. 1, imposed on SVM a duty to:

389. "Undertake the pre-selection of plant and equipment for a particular Engineering Service...as agreed by the LO...This Duty includes the responsibility for specifying design requirements relating to other professions."

390. In performing this duty, SVM were involved in the approval of the selection of a manufacturer for the trunking and also approved samples of trunking, though the responsibility for the provision of suitable material, including trunking, rested with BB.

146 This duty did relate to cable damage. Two criticisms were made of the trunking. First, that some of it had sharp edges and some was delivered without plastic protectors (called confusingly, insulators) to protect the edges at joins. Secondly, that the T pieces were wrongly dimensioned. Both those matters had a potential for cable damage, and SVM's express and implied duties are relevant.

147 The matters of sharp edges and the dimensioning of the T pieces arose in the process of selection of materials before contract by BB with the supplier.

148 Satisfactory objection was taken to the sharp edges, though the supplier later did supply trunking with sharp edges.

149 When the supplier first provided samples of T pieces for approval, it was found that one of the enclosed channels under a bridge within the T piece was wrongly dimensioned with a reduced cross-sectional area (CSA). The T piece was rejected for that reason and replacements were provided. The replacements were better but were still wrongly dimensioned.

150 The wrongly dimensioned T pieces were inspected by SVM and were approved by them. Mr. Gordon (BB's Project Manager at the time) and Mr. Chavner (LM's Electrical Services Manager) gave evidence of that approval. SVM disputed that evidence but called no evidence in opposition. Everyone who had dealings with Mr. Chavner spoke highly of him. He was a most convincing witness. I accept his evidence on this point as well as the evidence of Mr. Gordon.

151 Mr. Chavner's evidence was that BB, under cover of a letter dated 14 September, 1988 submitted a sample of IP44 trunking to LM for approval. After considering the samples with SVM, by letter dated 23 September, 1988, LM rejected the samples for various reasons including the objection that the CSA was too small: the overall dimension of the CSA of two channels was at two points 50x50 mm. instead of 100x100 mm. There followed further correspondence with the manufacturer, Power Centre. That correspondence included a letter dated 28 September, 1988 from Power Centre to BB which included the promise, "The CSA through the tees will be maintained but this will incur extra cost as it is non-standard." The claim for extra cost was rejected, but otherwise that promise was passed on to LM by BB by letter dated 29 September, 1988. Mr. Chavner and others, including a representative of SVM, visited Power Centre. There was then a meeting on 3 October, 1988 at which samples of IP44 trunking were submitted by BB to LM and a representative of SVM. Mr. Chavner could not identify the representative from SVM beyond saying that it was not Mr. Liptrott. The CSA of that sample was still significantly reduced in two places, though not so greatly reduced as was the case with the previous sample. In the light of the recent history, I cannot believe other than that the CSA was inspected by BB, LM, and SVM. It is just possible that, if one did not know the history of rejection of the first sample, one of the representatives of one of the three bodies might have overlooked the reduction in the CSA, but in the light of that history, it not credible that they should all have overlooked it either individually or together. If one knew that each channel should have the same dimensions, it would take no engineering qualification to check the CSA. If the place to look at had been pointed out (as it had) any school child capable of passing the 11+ could check it armed only with a school ruler, and indeed one can see it without a ruler. (The point is that the CSA of each channel is square but two channels have to go over a bridge in the T-piece. Where those two channels go over the outside corner of the underlying square channels, the outside surface of the overriding channels cuts across the corner reducing the "headroom"). That outside surface is formed by the removable lid when the lid is in position, and the position of the lid is defined by the walls of the channels. The uninitiated might miss the point, but once it has been pointed out, even the uninitiated cannot fail to see it. I find that BB, LM, and SVM all knew that the replacement sample had a reduced CSA. Mr. Chavner said in evidence, and I accept, that he pointed out to the SVM representative that the CSA of the central and one other compartment of the three were significantly reduced at the point I have mentioned but the SVM representative replied that they were not concerned by that since they intended that the channels in question would be occupied by a small number of BEMS cables in one and data and telephone cables in the other. Accordingly, by letter dated 5 October, 1988, LM approved the sample subject to the express requirement that the internal edges within the intersections will be free of sharp edges. Later, the design changed, and cables of greater dimensions were placed in the channels with restricted CSA.

152 Samples were preserved on site and were later produced in Court.

153 The effect in law of the approval given by SVM is important. In Adcock's Trustee v. Bridge Rural District Council (1911)

391. JP 241, the defendants complained of the quality of bricks supplied to them. A sample brick had been approved by the defendants' architect. Phillimore J. held that the architect bound the defendants by his acceptance of the sample, and as the bricks were up to sample, the defendants could not complain that the bricks were not up to specification. Phillimore J. said, at page 244,

392. "The acceptance of that sample as indicating the class to which it belonged, and as an average good brick of that class showed that in their [the architects'] view it was a sufficiently good brick to comply with this specification."

393. Mr. Honer, the SO, took a similar view in this case. He said in evidence that the approval of the sample set the standard.

154 At the trial, SVM relied on a term of BB's contract relating to drawings:

394. "Acceptance or approval of drawings and documents provided by the Contractor in respect of work proposed and/or designed by him or his sub-contractors will not relieve the Contractor of responsibility for any discrepancies, errors or omissions therein; for providing equipment suitable in dimension, construction, finish and function for the location in which and purpose for which it is installed or for any other of his contractual and legal obligations."

395. That reference to the effect of approval of drawings and documents is not apposite to the effect of approval of a sample and does not affect this issue.

155 During the installation of cables, the reduced CSA again became a matter for consideration and SVM took the stance that as the reduced CSA involved non-compliance with the specification of materials it was due to breach of BB's contract to supply materials in accordance with specification and any alterations needed as a result should be made at BB's expense. In this SVM were wrong.

SVM'S DUTY TO SUPERVISE AND INSPECT

156 There are then allegations concerning duties to inspect and supervise. SVM differs widely from the other parties in submissions as to the proper construction of the contract regarding duties to inspect and supervise.

157 It is here that the plaintiffs' limiting the claim to cable damage and its results is particularly important. SVM did have supervisory duties, that is clear. Any supervisory duties aimed at encouraging the expeditious and economical progress of the work unrelated to cable damage fall outside the issues raised in this action. My task is to consider to what extent the supervisory duties bore upon cable damage. What is the type of loss for which SVM are liable in the event of breach? Did SVM have a duty to prevent BB damaging cable at all? Or was SVM's duty limited to detecting cable damage after it had occurred and requiring that it be put right? If the latter, it is relevant to the question of delay to consider at what stage and how soon should that detection be effected. Alternatively, was SVM's supervisory duty limited to supervision of LM's supervisory duties, and if so, to what extent and in what manner would that duty at one remove impose on SVM a duty either to prevent or detect bad workmanship or the use of unsuitable materials?

158 The extent of the duty of an architect or engineer to inspect has been discussed in many cases, among them: Jameson v. Simon (1899) 1 F (Ct of Sess) 1211 at 1222 per Lord Traynor; East Ham Corporation v. Bernard Sunley [1966] AC 406 at 443 per Lord Upjohn; Sutcliffe v. Chippendale & Edmundson (1971) 18 BLR 149 at 152 per His Honour Judge Stabb Q.C.; Corfield v. Grant (1992) 29 Con LR 58. But in all the cases, the extent of the duty depends on the terms of the contract and the circumstances of the project, which are, of course, infinitely variable.

159 The express terms of SVM's duties to supervise and inspect are to be found in a number of different provisions.

160 DNH submit that SVM's principal "supervisory" obligation is contained in PASC Duty 48:

396. "Stage 3.2 - Construction Control

397. 48. Make site visits of inspection to ensure that the Works are being properly supervised and executed in accordance with the design and specifications, and otherwise to safeguard good engineering practice."

398. DNH submit that SVM's obligation under PASC 48 was to ensure two things: first, that such supervision as others were carrying out was being properly done; and, more important, secondly, that the works were being properly carried out in accordance with the design and specification and so as to safeguard "good engineering practice". The submission is that the word "ensure" is to be understood in its dictionary meaning of "make sure" and that what SVM are to make sure is that both the supervision carried out by others is properly done and that the work itself is properly done. The plaintiffs submit that the use of the word "ensure" means that if the desired result is not achieved, that is of itself evidence that SVM's supervision during construction was not adequate.

161 DNH submit that SVM's role in the commissioning process is similar. PASC Duty 59 provides:

399. "Stage 3.3 - Construction Completion

400. 59. Witness and approve all the commissioning trials and tests and inspect all Services included in the commission to ensure (i) compliance with designs and specifications: and (ii) correct setting up and satisfactory operation"

401. Again, the plaintiffs emphasise the word "ensure". They submit that the duty is an onerous one since it involves ensuring that the design has been complied with.

162 DNH also rely on other duties:

402. PASC Duty 26 provides for collaboration with the design team "to ensure that the drawings of the Engineering Services are properly co-ordinated with the building design".

403. PASC Duty 46, which I have already mentioned:

404. "Examine the Contractor's proposals for the execution of the Works and comment to the Contractor as necessary during Stages 3.1 and 3.2 [Construction Pre-Planning and Construction Control]".

Clause 6 of PASC:

405. "Close liaison is to be effected...and shall result in the supply of all necessary information to allow the design programming and costs for the Project to be prepared." Clause 3 x. of the Main Contract provides that SVM is

406. "to liaise with the Management Contractor to fulfil the appropriate obligations implicit in the management contract, and carry out all additional duties arising from the management contract."

407. In this connection, DNH rely in particular on the duties referred to in the table contained in the Management Contract and set out (in part) in paragraph 86 of this judgment. Particular reliance is placed on the words under Activity 9, The Construction of the Works, in the column for the Design Team,

408. "Provision of site supervision of the whole of the works".

163 SVM for their part rely strongly on the following terms of their agreement:

Clause 9:

409. "Site Staff. In the event of the need for site control staff when the Engineer is required to provide services under Work Stage 3, the engagement of such staff ... will be the subject of a separate agreement".

PASC clause 10:

410. "Site Supervision. M & E site supervisory staff will normally be appointed by PSA. Exceptionally however the Engineer may be asked to appoint such staff. In this case the Engineer will be reimbursed under separate arrangements."

164 The agreement must be read as a whole and in the light of the actual circumstances. No agreement was made for SVM to engage site control staff nor were any separate arrangements made for SVM to appoint site supervisory staff (at least not before October 1992). On the contrary, positive arrangements were made for site supervision to be performed by others. On 10 June, 1986 SVM, in reply to an enquiry from PSA about what sort of site office they would require, replied that that would depend on whether "we are expected to have a supervisory role ... or you are going to use your own PSA site staff." PSA chose the latter. Clerks of the Works (COWs) were employed, reporting to and under the control of the SO. (The system was later changed).

165 The table of responsibilities in LM's contract could not have been intended to place upon every member of the Design Team a responsibility for "workface" supervision of the execution of the work. The Design Team was defined in the LM contract as CSJW, SVM, OA and DBE, and the line immediately preceding the Table states, "For the purpose of the table, "Design Team" includes the SO". If all of the members of the Design Team had tried to perform workface supervision there would have been complete confusion. The meaning of the table is simply that someone in the Design Team had to undertake that function. The SO elected, through the PSA, to control workface supervision by COWs reporting to himself through the PSA. The SO could have, but did not, arrange with SVM that SVM would, for additional payment undertake the duties that were in fact discharged by the COWs. If such arrangements had been made, SVM would have had to engage additional staff with similar functions and qualifications as the COWs.

166 The supervisory function thus undertaken by the COWs for the SO was the function normally undertaken by COWs. Those functions were defined in detail by a direction written by Mr. Honer as SO and dated 9 October, 1984. Those functions included the following:

411. "1. To maintain a PSA daily works diary of all relevant matters pertaining to the construction.

412. 2. To monitor construction to ensure that design conditions are met.

413. 3. To ensure that materials and workmanship conform to the specifications

and

414. To advise the SO on any matters related to the approval or otherwise of materials."

167 As the SO made plain by his Terms of Reference for COWs issued on 7 July, 1987, the COW's function did not detract from the supervisory duty of LM or BB.

168 LM's supervisory duty was set out in their contract (Management Contract Conditions),

415. "4(3)(f) Supervise the execution of all the Works and maintain the necessary quality control"

and in the MC column of the Table under Activity 9:

416. "Full control and supervision of construction of the whole of the Works in accordance with the direct Contracts and the SO's instructions".

417. LM's duty in this regard should also be read in the light of LM's duty to employ qualified mechanical and electrical engineers.

169 BB also retained their own duty to supervise the Works so as to provide workmanship and materials of the contractual standard. BB had a duty to instal suitable materials with satisfactory workmanship. To perform those duties, BB were bound to provide the close supervision implicit in the usual understanding of the function of a foreman as well as to inspect materials and work in progress and on completion.

170 To direct the operation of the project and implement the contracts, the PSA on 24 August, 1989, issued a lengthy document entitled, "Project Implementation Plan". Mr. Pardey, the DNH Project Director, said in evidence that this document did not have contractual force, but everyone was expected to comply with it. In that document was another table showing responsibilities of individuals. Activity 9 was reworded. In the column for the Design Team, in place of the words:

418. "Provision of site supervision of the whole of the works"

there were substituted the words:

419. "Ensuring that the site is adequately supervised".

420. Other words in the Design Team column remained the same, for example:

421. "Establishment of standards of quality of materials and workmanship.

422. Oversight of the works in accordance with the standards set by the contract documentation.

423. Oversight of the MCs management operations. Approval and acceptance of works to be executed by others."

171 In 1991, PA Consulting Group was called in to advise on management structures at the BL and one of their recommendations was that there should be a clearer definition of peoples' responsibility and work breakdown structure. Following that recommendation, Mr. Housam, Deputy Project Manager, on behalf of PSA circulated a document dated 22 October, 1991 headed "British Library - Work Breakdown Structure" defining responsibilities of bodies from the Public Accounts Committee downwards. Mr. Housam said he certainly sent that document to OAL, the predecessor of DNH. The importance of the document was underlined by recipients being asked to sign a receipt for it. By that document, the responsibility for inspection of electrical and mechanical work during construction and installation was placed on LM with SVM having the role of support. The document also stated:

"RESPONSIBILITY

424. Only one party can be responsible for each defined activity. Responsible means accountable and/or contractually liable.

APPROVAL

425. Approval requires agreement of all supporters that the activity being approved is compatible with their own and their clients' requirements.

.....

SUPPORT

426. Support means obligatory contribution to the Approval."

172 PASC 48 was one of the standard terms taken by PSA from their traditional contracts and inappropriately used in the context of Construction Management. The stress laid by DNH on the word "ensure" in PASC Duty 48 would make SVM insurers of the performance of BB both as to quality and conformity with the programme. It would also make SVM insurers of the quality of the supervision provided by LM. SVM would have those duties of insurance without any power to discipline BB or LM. If SVM found faults or errors, all they could do was to advise or admonish, or report to the SO. It cannot have been intended by the parties that SVM should undertake such onerous duties of insurance without any powers of enforcement or the payment of an insurance premium to them. Taking into account the whole of the SVM contract, set in the context of the other agreements and in the context of the intentions of the parties, I find that a fair indication of the duty imposed by PASC 48 is to be found in the words later to be found in the Project Implementation Plan. SVM's duty was to make such site visits as were reasonably likely to be required to ensure that the site was adequately supervised so that the electrical works would be properly executed in accordance with good engineering practice. What steps were required reasonably to discharge that duty I shall have to consider in more detail at a later stage. SVM of course was under an obligation to do what it reasonably could to see that LM in turn discharged its obligations as regards the M & E services: in practice, if advice and admonition were insufficient, all that SVM could do was voice any concerns to the SO (which it did).

173 SVM's duty did not extend to preventing BB doing bad work: that could only be done by such close supervision as would be expected from a foreman. SVM's duties were limited to taking steps which would discourage bad work and if possible discover it after it had been done. The most direct and effective steps in terms of reducing costs and damages would be taken by LM under the supervision of SVM. Once bad workmanship had been executed, there would inevitably be costs involved in putting it right, and SVM would not necessarily be responsible for those costs. For SVM to be made responsible for the costs of putting right bad workmanship, a causative link between a breach of duty by SVM and the bad workmanship would have to be shown.

174 Even if I am wrong in the construction which I place on the contract, the performance required by DNH and knowingly accepted by DNH from SVM was performance which accorded with that construction, as is shown by the terms of the Project Implementation Plan and by the evidence given by the SO, Mr. Honer, in this action. It is not open to DNH now to complain that performance should have been given to a different standard.

175 Moreover, there was an inspection procedure, known to all including DNH, which was in fact followed and on which LM insisted, namely, that when a section of the work was to the satisfaction of LM completed to the required standard it would then be offered to SVM for inspection. When SVM inspected at a time which in the opinion of LM was premature, LM understandably protested and insisted that SVM should inspect when the work was offered by LM for inspection.

176 For the sake of completeness, I should add at this point that in October, 1991, DNH withdrew the COWs to make the responsibilities of LM for supervision more clear. There had been some overlapping and blurring of responsibility for site supervision between PSA and LM. This later reorganisation did not, of course, affect the responsibilities of SVM. In point of fact, SVM objected to the withdrawal of the COWs because of the inadequacy of the LM supervision, of which SVM had been complaining. Both DNH and SVM were dissatisfied with LM's supervision, they were only in disagreement about the remedy.

427. One of the five COWs, Mr. Peter Tooley, was a respected electrician who was given another employment on the project.

BREACHES

WAS THERE BREACH BY SVM, BB, OR LM?

177 Before considering in detail the evidence relating to breaches by the respective parties, I shall consider two matters raised in submissions on behalf of DNH,

428. 1. The evidence called on behalf of SVM;

2. Causation.

THE EVIDENCE CALLED ON BEHALF OF SVM

178 Counsel for the plaintiffs makes strong and justifiable comment on some gaps in the evidence called on behalf of SVM. Of course, SVM were under no obligation to call any evidence at all, but the omissions are bound to raise questions.

179 The design of the electrical system was, apparently, principally the responsibility of Mr. Dusan Marcovic, Mr.Hansen and Mr. Hugh McCarthy.

180 Mr. Dusan Marcovic was a partner in SVM until his retirement in 1992. Mr. Michael Carver, a partner in SVM, gave evidence that Mr. Marcovic had been involved in the project from its earliest days and was appointed partner in charge from 1990, "although he had been effectively running the project since about 1985". A statement from Mr. Marcovic dated 3 September, 1997 was served. That statement expressed itself to be dealing solely with an inspection report dated 7 December, 1989 and did not give an account of Mr. Marcovic's qualifications or experience. From the outset, it was made plain that he might not be called to give evidence, and in the event he was not called, his statement having been put to a witness called on behalf of the plaintiffs, Mr. Chavner. Although other witnesses from SVM were asked about them, the qualifications and experience of Mr. Markovic remain a mystery. He was not the holder of any chartered engineering qualification in the United Kingdom. He is probably, though not certainly, qualified as an engineer in Yugoslavia. Many foreign engineering qualifications are more highly regarded than those of the United Kingdom, but it is not known what level or type of qualification was attained by Mr. Marcovic. I do not even know whether he qualified as an electrical rather than mechanical or other type of engineer. It was established that he had been seen in the office of SVM shortly before the trial, but he was not presented for cross-examination as to his qualifications or as to what he did in and about the design. On the other hand, it is unlikely that SVM would have enjoyed the high repute which caused it to be engaged on this project if Mr. Marcovic did not know his business.

181 Mr. Hugh McCarthy also did not give evidence. Mr. Carver said that he believed that Mr.McCarthy was a Member of the Institute of Lighting Engineers, an institution which does not confer chartered status. Mr. Carver also said that Mr McCarthy was extremely well versed in practical engineering having been with SVM for some 25 years before his retirement due to ill health. It was not established that he was unfit to give evidence, but it seems likely that his evidence would have been of little assistance. Mr. Mark Rana-Smith (usually known as Mr. Mark Smith) of SVM said that Mr. McCarthy, an Associate with SVM dealt extensively with the lighting design and occasionally assisted with other aspects of the electrical works generally. There is no criticism of the lighting design.

182 On 9 November, 1992, Mr. Michael Carver was appointed partner in charge of the project taking over from Mr. Marcovic who continued to advise hin until his retirement in November, 1992. Before November, 1992, Mr.Carver's involvement with the project was small. He is a chartered engineer, a member of the Royal Society of Arts, and was from 1993 to 1996 a member of the Council of the Chartered Institution of Building. Mr. Carver did give evidence.

183 Mr. David Sworder, an associate of the Partnership, was the senior SVM representative on site. Mr. Sworder is an extremely competent and qualified mechanical engineer with some experience of electrical engineering from previous projects. He is a Chartered Engineer and a Member of the Chartered Institute of Building Services Engineers. He graduated BSc in Mechanical Engineering Science from Salford University in 1981 and has worked for Mather & Platt and then for Salford Area Health Authority where he had experience of electrical engineering, including design. Mr. Sworder joined SVM in 1986, became a Principal Engineer in 1988 when he became Project Leader for the British Library and a director of SVM Partnership Limited in December, 1995. Mr. Sworder gave most helpful evidence. He was involved in mechanical but not electrical design.

184 Mr. Mark Smith graduated from Southbank Polytechnic, London, in 1986 with a BSc degree in electrical engineering. He went immediately to SVM where he from the outset worked on the BL project. Starting as a Graduate Electrical Engineer, he was progressively promoted until he became Senior Electrical Engineer in 1992 when he went to work on site. Originally, Mr. Mark Smith reported to Mr. Robin McNeilly, SVM's Chief Electrical Engineer, then to Mr. Markovic, and then to Mr. Sworder. It is at least possible that Mr. Marcovic had help from Mr. McNeilly in his design, but I have not heard from Mr. McNeilly. From 1988, Mr. Mark Smith reported to Mr. Sworder. In 1986 and 1987, Mr. Mark Smith was involved in the detail of the design of the electrical system, including the sizing of the trunking and the routing of the trunking. Mr. Mark Smith is a very capable engineer, but I have the impression that he was given a degree of responsibility both in the office of SVM and later on site which was disproportionate to his then experience and qualifications. He is now extremely highly qualified by the experience gained on the BL project.

185 Mr. Anthony Stark gave evidence. Mr. Stark is a mechanical engineer. He graduated in 1973 with a BSc in Mechanical Engineering from Salford University. Before joining SVM he had considerable experience working for the Ministry of Public Building and Works and its successor the PSA. He joined SVM in March, 1990 and became head of what was known as the MRE team, MRE meaning Mechanical and Electrical Resident Engineer answerable to the SO. Mr. Stark, was SVM's Resident Engineer on site at the BL. Mr. Stark was concerned principally with the mechanical side, while a Mr. Demopoulos was in charge of the electrical side. Mr. Demopoulos was an experienced engineer who became chartered after he had left SVM towards the end of 1991. I did not hear from Mr. Demopoulos. Again, the plaintiffs comment on the absence of the individual from SVM who was in a position to speak of what was done in the execution of the works on the electrical side.

186 The only individual with electrical qualifications to give evidence from the staff of SVM was Mr. Mark Smith, though he was not the only SVM witness with electrical experience.

CAUSE IN LAW

187 The principles governing causation were summarised by Sir Thomas Bingham MR in Banque Bruxelles v Eagle Star [1995] QB 375 at 406, and not dissented from by the House of Lords on appeal,

429. "The approach of the courts to issues of causation is in principle simple, pragmatic and commonsensical. In Yorkshire Dale Steamship Co Ltd v Minister of War Transport [1942] AC 691 at 698, Viscount Simon LC said:

430. 'It seems to me that there is no abstract proposition, the application of which will provide the answer in every case, except this: one has to ask oneself what was the effective and predominant cause of the accident that happened, whatever the nature of that accident may be.'

431. Lord Wright added, at p.706:

432. 'This choice of the real or efficient cause from out of the complex of the facts must be made by applying commonsense standards. Causation is to be understood as the man in the street, and not as either the scientist or the metaphysician, would understand it.'

433. That was said in the context of whether the loss was caused by the risk insured and, although it remains a guiding principle as to the application of commonsense, it is qualified in the present field by the further principle that the event which the plaintiff alleges to be causative need not be the only or even the main cause of the result complained of; it is enough that it is an effective cause. It is also plain that an event is not regarded in law as causative if it does no more than provide the occasion for the result complained of; it is enough if it is an effective cause. It is also plain that an event is not to be regarded in law as causative if it does no more than provide the occasion for the result complained of. "

434. The passage quoted from Lord Wright continued:

435. "Cause here means what a business or seafaring man would take to be the cause without too microscopic analysis but on a broad view."

436. I cite that passage from Lord Wright (which was not quoted by Sir Thomas Bingham M.R.) because the modern view of the man in the street referred to by Viscount Simon is less rosy than the romantic vision from the first half of this century of the man on the top of the Clapham omnibus. The test is what an informed person in the building industry (not the man in the street) would take to be the cause without too microscopic analysis but on a broad view.

188 Where a loss has been occasioned by more than one cause, a plaintiff must show on the balance of probabilities that the breach complained of caused or materially contributed to the loss complained of. In Bonnington Castings Ltd v Wardlaw [1956] AC 613, the plaintiff had contracted pneumoconiosis due to the inhalation of silica dust. There were 2 sources for such dust: one of them (the swing girder) involved negligence on the defendant's part; the other (the hammer) did not involve any such negligence. Lord Reid said at p.621:

437. "...I cannot agree that the question is: which was the most probable source of the respondent's disease, the dust from the pneumatic hammers or the dust from the swing girders? It appears to me that the source of his disease was the dust from both sources and the real question is whether the dust from the swing girders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception of de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material."

And at p.628:

438. "In my opinion, it is proved not only that the swing grinders may well have contributed but that they did in fact contribute a quota of silica dust which was not negligible to the pursuer's lungs and therefore did help to produce the disease. That is sufficient to establish liability against the appellants..."

189 Lord Reid made the same point in McGhee v National Coal Board [1972] 3 All ER 1008 at p.1010 f-g where he reaffirmed the principle set out in Bonnington:

439. "It has always been the law that a pursuer succeeds if he can shew that fault of the defender caused or materially contributed to his injury. There may have been two separate causes but it is enough if one of the causes arose from fault of the defender. The pursuer does not have to prove that this cause would of itself have been enough to cause him injury."

190 The issues of concurrent causes arises in this case primarily in relation to the allegations made against the defendants that they were failing in their duties to supervise. If there was a failure by SVM in their duties to supervise followed by damage to the plaintiffs, it is likely that there was also defective workmanship on the part of the BB, and in addition some failure by LM in their duty to supervise, as well as some failure on the part of DNH in the duty undertaken by the SO through the CoWs.

191 The relationship of the causative effects of bad workmanship and supervision must be a matter of fact in each case, but it has been helpfully considered by His Honour Judge Fay Q.C. in a case concerning bad workmanship by a builder and negligent supervision by an architect. In Hutchinson v Harris 10 BLR 19, Judge Fay at first instance said:

440. "...where the duty of a contracting party is to supervise the work of another contracting party, it seems to me that there is a direct causal connexion between the supervisor's negligent failure to prevent negligent work, and the damage represented by that negligent work. No doubt the builder is also liable. It is a case of concurrent breaches of contract producing the same damage. In my judgement the plaintiff has an action against both, although she cannot obtain damages twice over."

441. That part of Judge Fay's judgment was not questioned in the subsequent appeal to the Court of Appeal. The passage quoted, and relied on by the plaintiffs, shows the approach adopted, and not subsequently questioned, by a most experienced and respected judge: it is not a statement of law as to the approach to be adopted in every fact situation.

192 Issues of causation also arise where there are allegations both of bad design and bad workmanship.

193 The possibility of concurrent causes lies not only between SVM and the Third Parties. SVM by their Defence also raise the acts of DNH as the cause of the plaintiffs' loss.

CAUSE IN FACT

194 BB began electrical installation work on 1 September, 1988. It was not until their letter of 23 February, 1993 that BB first made allegations that damage to cables was caused by bad design. On 17 June, 1993, BB put forward its "Submission in relation to cable damage" giving more detail in support of their claim put forward in their letter of 23 February, 1993, again blaming SVM's design.

195 Even omitting the response of SVM as being potentially self interested, the response to BB's allegations was unanimously that the cause of the damage was not bad design but bad workmanship. Those responses came from informed men in the building industry, from individuals acting on behalf of DNH, from LM, and even from the Chairman of BB and the firm of expert engineers which later provided the expert witness giving evidence on behalf of DNH. Similar views were expressed by many witnesses (in addition to SVM witnesses) at the trial.

196 To some extent, those reactions were expressions of view by reasonable men as to causation: to some extent they were expressions of view as to existence of fault. It is difficult to believe that they are all wrong. On the other hand, there were many contemporaneous comments on the high standard of workmanship on the part of BB. Whatever may be said about bad workmanship on the part of BB, they were capable of achieving high standards and at last, after a great deal of trouble, the finished installation is of a high standard. The criticism made at the trial was that a comparatively small number of men caused extensive damage in many areas throughout the site.

197 Mr. Honer, the SO, said in evidence,

442. "I cannot possibly see how the design or selection of, say, lid down trunking can in any way have - could in any way have contributed to damaged cable. If they did, then still the responsibility has to rest with the works contractor because he volunteered to install the electrical works with lid down trunking."

198 On 21 June, 1993, there was a meeting attended by senior representatives of PSA, LM, and SVM. There were present. Messrs. B.A.Brown, K.Wallace, and D.Addison of PSA; Messrs. S.Nuttall, R. Johnson and D. Chavner of LM, and Messrs. M. Carver and M.Smith of SVM. They were all senior men with detailed knowledge of what had been happening. Mr. Derek Chavner, one of LM's 18 Electrical Services Managers was regarded by all, including myself, as a sound and reliable man. Mr. M. Smith of SVM said "he was a very serious engineering individual and made a judgment on the basis of his experience and what he had seen". Mr. Honer described him in similar terms. A note of the meeting was taken by Mr. Carver which is acknowledged to be accurate subject to one correction of detail. The subject under discussion was cable damage. Two possible causes, overcrowding of cables and the number of bends in the trunking were rejected and the blame laid squarely on bad workmanship. The note included the following:

443. "2. LMC advised that in basement areas all remedial work is now complete and BB were intending to complete the remainder of the building but have now submitted, under cover of their letter dated 17 June, 1993 to LML a statement of claim.

3. D Chavner, when asked by Steve Nuttall stated that, in his view, the cable damage was the fault of the installing electrician. He is in finger contact throughout the installation process and should be aware of damage. Where damage is found, circuits should be re-wired."

444. [The note then quotes Mr. Chavner as saying:]

"They were installing wiring too fast and not taking care."

445. [That was a view which Mr. Chavner repeated in evidence].

4.It was accepted that in some instances, overloading of the trunking had occurred in the past, and with the exception of basement 4, fire compartment 7.1, Balfour Beatty had been instructed and paid for relief trunking when the issue was highlighted. There are a limited number of areas where there is still overloading. One particular area highlighted by Balfour Beatty in their claim relates to basement 1, zone 4, chiller plant room. Here, Balfour Beatty sized the trunking themselves."

446. [In a later note that paragraph was corrected. It was noted that in B4FC7.1, after it was revealed that there was a reduced CSA at an open section of an adjacent T piece an instruction was given for relief trunking].

"5. BB's drawing in the statement of claim was reviewed and it showed considerable variation for 'as installed' compared with their own working drawing and the original design drawing. It was accepted by all that whilst increased numbers of bends makes installation more time consuming, it does not in itself lead to a situation that would create cable damage. [my emphasis]

6. The conclusion accepted by all parties present was that damage to PVC cables in trunking was the responsibility of installing contractor. BAB [Mr. Brown] queried if there were any 'grey' areas and after some discussion none of substance were identified.

........

9. Again, there was general agreement by those present that the issue was very much of insufficient care and attention being used during the installation process."

447. Paragraphs 7. and 8 of that note were an account of bad workmanship by BB in relation to fibre optic cabling. Fibre optic cabling does not now feature in this claim, but mention of it is significant in that there also was seen bad workmanship. One of those who joined in the general agreement noted in that document was Mr. Nuttall who in this trial gave contrary evidence.

199 No one at the meeting of 21 June, 1993 said that there was anything wrong with lid down trunking. It is most significant that at that meeting 3 senior men from the plaintiffs' representatives (PSA) and 3 senior men from one of the Third Parties (LM) all agreed with SVM that the fault lay not with design but with bad workmanship. The comment made by Mr. Chavner bears upon the importance of having a high quality workforce with high quality workface supervision from BB foremen.

200 Two days after the meeting of 21 June, 1993, on 23 June, 1993, Mr. Wallace of PSA wrote to Mr. Nuttall of LM with copies to BB, LME, PSA, SVM, and the SO:

"RESPONSE TO BALFOUR BEATTY SUBMISSION ON DAMAGED PVC CABLES

448. 1.BB have concluded that damage was caused by

449. (a) Defective design of the works.

450. (b) The method of execution of the works was dictated by the design and therefore 'imposed'.

451. 2.The design has not caused the cables to be damaged. Trunking with covers on the bottom is referred to in PSA M&E1 clause 8.05.7, and has been widely used over many years in the UK construction industry. The routes used in the areas cited were chosen by Balfour Beatty who have already been reimbursed for additional drawing and site work in recognition of the changes from the original design.

3. The methods of execution have not been imposed on Balfour Beatty. In particular, the authority has not required that cables be pulled through trunking. Indeed, this is not good practice, as required by contract clause preamble 8, 1160.

452. 4. If the design was or could have been responsible for the damage, which we have already denied, then BB should have stated so at tender stage or at the earliest time that damage occurred or became inevitable."

453. That opinion was expressed on behalf of the plaintiffs at the time by an experienced and qualified chartered engineer employed by the plaintiffs' representatives the PSA: he was the senior PSA engineer employed on site. I am satisfied from the evidence of others that it was an honest and competent expression of opinion. There is no evidence that the view of PSA ever changed from that view.

201 At the same time, Mr. Pardey wrote to Mr. Brown, the Project Manager employed by PSA. Mr. Pardey was the Project Director of BL from August, 1987 until his retirement in August, 1995. He was employed by DNH and wrote on DNH headed writing paper. In evidence he described himself as the equivalent of the representative of the owner of the project in a commercial context. He wrote on 22 June, 1993:

454. "Yesterday we visited the 'Cable Duct' problem area at B1.

455. 2. I have no doubt that it is poor workmanship on the part of Balfour Beatty workmen that is the cause of the damage to the cables and Balfour Beatty should not even require an instruction to rectify the damage at no cost to the Authority. They should have rectified the damage before the work was inspected; and in any case, LM should have picked up and ensured that the damage was repaired long before the repair work became a critical activity. But all that is water under the bridge. What is needed now is the implementation of a quick, engineered solution, which is fit for purpose. I would suggest this is a candidate for a 'task group'.

Design

456. 3. I have no doubt that SVM will be able to demonstrate to their own satisfaction that the cable duct is adequately sized for the number of cables which have

457. been placed in it. But there is also no doubt that there are many cable ducts which are full, and that before the building has even opened, let alone operated for a hundred years. That is poor design. SVM may well need to contribute to the cost of the solution."

458. Mr. Pardey was the second witness called on behalf of the plaintiffs. In his evidence, he said that that letter was his opinion at the time, "and it is still my opinion today". I share his opinion there expressed, except for the suggestion that room should have been left in the trunking for further cables to be added over the next 100 years, to which I shall return later. The cause of the cable damage was BB's bad workmanship. LM should have discovered the damage much earlier and thus reduced the financial loss. Mr. Pardey criticised SVM's design which, he said, caused the trunking to be full, not over full. Mr. Pardey's reference to SVM contributing to the cost of the solution was in the context of his considering that SVM should have allowed room in the trunking for future development. He did not say that design of the trunking caused cable damage. (Mr. Pardey's reference to 100 years is over-optimistic in relation to the wiring. While the building may have a design life of 200 or 300 years, the wiring will need to be replaced after 30 years, a little over 20 years from now).

202 Mr. B.A. Brown of TBV wrote to Mr. Lockwood, a director of LM on 12 November, 1993,

459. "As previously stated, we disagree with the statement that upside down trunking is unsuitable. The excessive damage incurred is nothing to do with the type of trunking used, but relates to the fact that the installed trunking does not comply with the specification and has not been installed in accordance therewith ....

460. No adverse opinion was received from BB [about lid down trunking] at the time of tender or at any other time until very recently but only when the problem of damaged wiring had already been experienced.

....

461. The issuing of variations may have numerous effects on the timing and sequencing of works depending on their nature, However, they should have no effect whatsoever on the standard of workmanship as executed by a reputable and competent contractor.

......

462. The actual design adopted satisfied the requirements of the project without giving rise to excessive installation difficulties, this being subject of course to the provision of good quality workmanship.

463. We totally refute BB's assertion that the system, as designed, is likely to suffer inherent dangers or maintenance problems. Due, however, to the previously

recorded incidence of poor workmanship, we agree that such problems may indeed arise. Furthermore, any comment from BB about the suitability or otherwise of the design should have been raised at the time of tender, or, at the very latest during the early stages of installation, not after the installation is ostensibly complete."

203 In the light of those opinions of Mr.Honer, Mr. Wallace, Mr. Brown and Mr. Pardey, all representing the plaintiffs, it is astonishing that this claim in the form which it now takes should be put forward on behalf of the plaintiffs. The case pleaded and prosecuted on behalf of DNH is in fact the case of BB, a Third Party.

204 Early expert opinion confirmed the views I have quoted. A report from Kennedy and Donkin Building Services Limited (K&D), commissioned by DNH, dated 6 October, 1993, included the following passage:

464. "The fact that the trunking was installed lid down was an engineering choice made by the designers and is an approved method within the PSA standard specification (M&E No.1 Engineering Specifications Electrical Installations 1985, clause 8.05.7). In our opinion, the specification for the cable trunking could have produced, if adhered to, an installation that was safe and fit for purpose. The installation of large numbers of cables in lid down trunking does require special care by the contractor who would find the process more difficult than laying cables in lid up trunking. However this was specified within the contract documents at the time of tender."

205 On 31 January, 1994, Mr. Hayden Phillips with senior DNH representatives (including Mr. Pardey) met the Chairman of BB, Sir Robert Davidson and two of his colleagues. Sir Robert is a very distinguished and highly qualified engineer. He referred to a document prepared by BL entitled "Proposed basis for remedial action" on which BB had been asked to comment. That document included a paragraph in which it was proposed that BB would investigate to see whether the number of cables in the trunking exceeded that recommended in the Regulations and Codes of Practice, and if it did, to remove some of the cables and reroute them. By way of comment on that, Sir Robert said (according to the Civil Service note) that he did not believe that channels were overloaded and therefore saw this as a non-point. He added most significantly that if there were any such areas then BB would accept liability, but they did not believe that was the case. The BB note of the meeting records Sir Robert as saying that "BB had checked this matter and records showed that there was no over capacity". I think it likely that both notes are correct and should be added together to get the fullest record. Sir Robert clearly saw that if the trunking was overloaded in breach of the Regulations and Codes of Practice that would be proof of bad workmanship, but after an investigation, he did not believe that the trunking was overloaded.

206 McLarens in their preliminary report dated 8 February, 1994 wrote:

465. "Although much criticism has been made of the design of the installation with the use of inverted trunking, we are of the view that with reasonable care it ought to have been possible to have installed the cables without causing damage."

466. In the same report, McLarens recommended that WS Atkins and Partners be instructed to investigate and report.

207 WS Atkins were indeed consulted as recommended by McLarens. Mr. Cavaliere of that company wrote a Preliminary Report (before making a site survey) in May or June, 1994. That report contained the following:

467. "BB suggests that the consultant's choice of trunking with lid on the underside was a contributory factor in the incidence of cable damage because it was

468. difficult for them to draw in cables without causing friction burns. In addition, it is inferred that the IEE 15th edition of the IEE regulations does not recognise lid-down trunking as an approved procedure."

469. Mr. Cross of WS Atkins, called as an expert witness on behalf of the plaintiffs, agreed that that was very much the thesis advanced by him in this case. He was then shown the next paragraph of the preliminary report:

"WS Atkins do not consider lid-down trunking systems as unusual. Furthermore, PSA specification M&E 1, clause 8.5.7, which is referred to in the electrical specification permits the use of lid down trunking.

...

WS Atkins considers that under normal circumstances and providing suitable installation procedures are adopted, installation of cables in lid-down trunking should not cause cable damage."

.....

470. WS Atkins considers that there are adequate installation procedures available which allow large numbers of cables to be installed into lid-down trunking systems without the resultant damage that has occurred."

471. The plaintiffs have sought to dismiss the opinions in this report a coming from a "desk top study". There are other passages in the preliminary report which might be explained away on the basis that this was only a "desk top study" without detailed survey and examination, but those statements as to usual procedures were made without any need of a site survey and are impossible to reconcile with the plaintiffs' case and with Mr. Cross's evidence in this action. For that, and other reasons, I have little confidence in the evidence of Mr. Cross.

208 In a report dated 24 September, 1996 addressed to Mr.Cannon of WS Atkins, Mr. Burton, Commercial Manager of LM, commented on delay caused by cable damage to various contractors. When he came to BB, Mr. Burton commented:

472. "This contractor caused his own delay in respect of installation of defective wiring".

473. It was that comment which found its way into Schedule B exhibited to the written evidence of Mr. Cannon tendered on behalf of the plaintiffs in this action in support of the quantum issues and remained there throughout the trial. That document, by reference, became one of the plaintiffs' pleadings in the action.

209 Additional support for the BB case came from, in particular, Mr. Nuttall, who was called to give evidence, and Mr. Anstee, who was not.

210 I shall consider the questions of breach and causation in more detail when considering the individual complaints made by the plaintiffs. First, I shall consider the general way in which the case for the plaintiffs is presented.

THE PLAINTIFFS' GENERAL CASE

211 The plaintiffs start their case from general propositions that it is inherently unlikely that for more than four years, a well known electrical contractor's workforce of qualified and competent men so carelessly installed in excess of 3,000 kilometres of single core PVC electrical cabling that by dint of their bad workmanship methods, poor standards and incorrect practices, they caused universal damage at a wholly unacceptable level, and that the design of the system with lid down trunking was unprecedented and in direct breach of a long established standard M & E Specification. The plaintiffs submit that the overwhelming probability is that SVM's design caused the cable damage. The evidence showed that those general propositions were not wholly well founded on fact.

212 No doubt at the outset of this great project, those responsible felt that, having chosen highly skilled designers and contractors, apart from the problems and snags to be expected in such a large project, the project would be well executed both as to design and workmanship. Contrary to expectations, things went appallingly and disastrously wrong. The disaster itself was of a kind and magnitude which was contrary to the general probabilities and there is limited help to be obtained from some of the general arguments presented.

213 I reject the suggestion that because bad workmanship on such a scale is unlikely, the probability is that there was something wrong with the design. On general probabilities, both bad workmanship on such a large scale and fundamental bad design were improbable. On the other hand, the design was open to all and there were no hidden traps in it, (apart from the reduced CSA in the T-pieces, and that did not remain hidden for long) and no one complained about it at the time. As to supervision, BB cannot complain that they would have produced better work if they had been better supervised by others: it was their duty to provide their own supervision to produce a high standard of work. DNH are entitled to complain that if there had been better supervision the financial loss suffered as a result of BB's bad workmanship would have been mitigated. It is a matter for consideration whether and to what extent the failure of the supervisors (who included DNH themselves through the PSA as well as LM) to discover the bad workmanship earlier can be attributed to breaches of contract by SVM.

214 While bad workmanship on the part of BB may have seemed unlikely on the probabilities before work started, those probabilities changed after the work began.

215 There were features of the execution of the work by BB which made bad workmanship by BB more likely. In breach of contract, BB did not employ only directly employed labour: a substantial amount of contract labour was employed. Not enough supervisors were employed by BB. At times labour was deliberately withdrawn from the site by BB as a negotiating "ploy" when disputes arose. BB did have labour problems at one period because overheating of the construction industry nationally led to electricians leaving for higher paid work elsewhere. That explanation may give rise to some sympathy for BB, but their contract placed the risks of such problems firmly in their court, and the explanation is irrelevant to contractual liability. The withdrawal of labour is not a matter giving rise to any sympathy for BB. It was suggested on behalf of the plaintiffs that BB's withdrawal of labour was a natural consequence of BB not being paid for remedial work which they were contending was not for their account and therefore SVM were to blame for it. I cannot accept that suggestion. Whether BB were or were not entitled to be paid for remedial work, they should have done it and argued about their claim afterwards instead of holding up the progress of the project. Eventually, BB did do the remedial work and made a claim for the cost. In fact, I find that their claims were largely unfounded and they were ultimately paid not by DNH but by insurers under an insurance liability to pay for negligent work.

216 It is a regrettable fact that, contrary to all the probabilities as they would have been seen at the outset, there was widespread bad workmanship by BB. That bad workmanship was seen in areas where even BB has not sought to cast any blame on SVM's design. SVM's design is blamed for damage to 2.5 mm LV cables. As I have already indicated, it was made plain by the Statement of Claim that there was also damage to other cables, (for which no design feature is blamed), namely

BEMS cables

474. Security cables

475. Fire alarm cables

476. Public alarm cables

477. Lift diagnostic cables

478. Lighting data loop cables

479. Data and voice cables.

480. There was also damage to at least one Riser caused by very bad workmanship of BB.

217 It follows from the evidence of one of the plaintiffs' witnesses, Mr. Chavner, which I accept, as well as from the evidence of other witnesses, that it must indeed be the case that those electricians responsible for the damage must have known of the damage which they themselves had caused but deliberately chose to ignore it and leave badly damaged cables in place in the trunking. They would have known of that even if, as is alleged, such damage was forced on them by being required to work to a bad design. There was also evidence, which I accept, that coloured pens were issued to electricians to disguise damage to cables.

218 SVM were at pains to make it clear that they were by no means alleging bad workmanship by all or even a majority of BB's workforce. Some BB electricians posted from Scotland, known as the "Highland Brigade" showed the highest standards, but they were not on site all of the time. There was evidence of a general lack of determination to achieve high standards due to inadequate supervision by BB, but even a small number of bad workmen, moving from one part of the site to another could cause widespread damage.

219 I shall bear the general probabilities in mind when considering the more detailed evidence, but they do not all point in the direction desired by the plaintiffs.

THE NATURE OF THE DAMAGE TO CABLES

220 The damage to the 2.5mm cable was broadly of two types:

481. (A) cuts, shavings or nicks by catching on sharp edges;

482. (B) friction abrasions or friction burns.

221 Some cuts, shavings or nicks were caused by sharp edges which ought not to have been inside the trunking or on the lips of the trunking. Others were caused when the cables were outside the trunking, either left hanging down from the trunking in intervals between work, or left on the floor. Cables ought not to have been left in exposed positions: on a building site there is always a risk of damage from other equipment in passing.

222 Friction abrasions and burns were caused by one wire being pulled over or under another.

223 In the 2.5mm cable used in Phase 1A, the copper core was covered with white PVC which was coloured by red, black or yellow/green colouring on the outside. For CP3, the covering was coloured throughout. As a result, in Phase 1A, even some insignificant scuffs to the surface of the cable caused white to show through the colouring. After disputes about what was or was not to be regarded as a defect, a sample board was agreed showing a classification of defects. An unacceptable defect was one which either exposed the copper to the bare wire or reduced the insulation to an unacceptable degree.

224 It has to be said that there was also some damage due to sabotage or vandalism by persons unknown. This latter damage was repaired by BB at their cost as required by their contract.

225 Where damage was discovered, the only acceptable method of repair was by removal of the damaged cable and replacing it. But when repeated inspections and re-inspections failed to give reassurance that all cable damage had been found, an additional step was taken. "Enhanced cable protection" in the form of extra circuit breakers was installed as an alternative to the proposal that all the cables should be replaced. The enhanced cable protection was additional to the replacement of all the cables actually found to have been damaged.

226 In this action, the plaintiffs contend that each category of damage, both the cuts and the friction damage, was due to the inherent unsuitability of the design, including lid down trunking, long runs with too many bends and sets, and over-population of cables. SVM contend that the damage was caused by bad workmanship, by pulling cables through, by using unsuitable trunking with sharp edges and insufficient "insulators", and by leaving cables unprotected in exposed positions outside the trunking contrary to good practice.

227 Even DNH and BB found it hard to maintain the contention, which is in fact insupportable, that the damage by cuts was due to anything other than a combination of bad materials and bad workmanship. Accordingly, from an early date, BB put forward the view that most of the damage was by friction burns. That view also is not sustainable. A very large proportion of the damage was from cuts, slicing or abrasions caused by pulling cables with insufficient care across sharp edges within the trunking or from external force applied to the cables when they were outside the trunking.

DEFECTIVE MATERIALS AND BAD WORKMANSHIP

228 The dangers to the integrity of the work due to defects in the trunking for which BB were responsible were known to BB from an early stage. BB complained to their suppliers, Power Centre, but did not take adequate steps to ensure that the defects were put right.

229 It is plain that there were many sharp edges in the trunking. That is shown by the contemporaneous complaints about it. For DNH it was suggested that a count of the recorded complaints ("no more than a handful over a number of years") shows that the problem was not widespread: but the content of the complaints shows that the defects were indeed widespread, continuing, and dangerous. Moreover, even when, long after the event, one of the experts called by SVM, Mr. Laing, bought trunking of the same specification from the same manufacturer to make a mock up, he found that there were many sharp edges: and he himself saw sharp edges at the Library a few weeks before trial. The sharp edges were at corners, and also on connecting pieces or fillets and on the lips of the channels of the trunking.

230 Outside consultants called in to advise also saw and remarked on sharp edges. Mr. Hedgeland, whose opinions I do not find helpful, was helpful in his observations of fact: when he was called in to advise, he observed sharp edges. Messrs Kennedy and Donkin, were called in to replace Mr. Hedgeland. In their first report dated 6 October, 1993, they wrote "damage can be generally described as cut, grazed or scuffed insulation to the cables and in some instances there are friction burn marks where cables have been drawn across each other. .... In conclusion, it is our opinion that the cause of damage to the cabling was that the standard of the installed cable trunking was not in accordance with the specification." It is significant that they were putting cuts, grazes and scuffs before friction burns. Later, on 16 November, 1993, after making further investigations Kennedy and Donkin again reported and repeated their reference to burrs and sharp edges "which are likely to cause damage to the cabling during any future installation of replacement works which involve movement of the cables". At the same time they noted that even after reparation works, they found that 2.6% of the cables inspected were damaged.

231 I make that finding regarding sharp edges without overlooking the evidence of workmen, including Mr. Reid Nicholls, who said that they did not find sharp edges. It would be difficult to find electricians willing to say that they found sharp edges and nonetheless laid cable without protest. Mr. Laing commented that Mr. Nicholls had said that he wore gloves on this job: that was, said Mr. Laing, most unusual and was probably to protect his hands from small burrs or sharp edges.

232 In a long letter dated 16 November, 1993, after a site visit by senior representatives of Power Centre, BB summarised many complaints. Among those complaints were:

483. (a) Reduced CSA of T pieces

484. (b) Bends without gussets as required by the contract specification;

485. (c) Sharp edges on retaining fillets and fillet connectors;

486. (d) Sharp edges in T pieces.

233 I have already mentioned the matter of reduced CSA of T pieces and will return again to that matter.

234 The absence of gussets on bends has been put somewhat faintly as a complaint against SVM and it is a matter of no substance so far as SVM is concerned. SVM required gusseted bends, hence BB's mention of them in their letter to Power Centre. The majority of bends were gussetted, and it was the responsibility of BB that an insignificant number were not gussetted. Horizontal bends were gussetted throughout. Vertical bends, or sets, were gussetted throughout on IP 41 trunking and gussets were missing only on IP 44 trunking, in the plantrooms. No significant cable damage has been shown to have been caused by the absence of gussets.

235 Each length of trunking has retaining fillets as well as fillet connectors to join one length of trunking to the next. When addressing their suppliers on 16 November, 1993, BB wrote in strong terms,

487. "It has been noted during recent cable inspections within the trunking that when the cables have been dropped out of the trunking for inspection, they are being damaged due to the inverted trunking has guillotine burrs present on the upper inner edges of the folded return (fillet) providing a ready cause of damage to the cables. ...

488. A fillet joint piece was given to Power Centre which has one edge razor sharp while the other edge has a rounded edge. Power Centre suggested that the sample was a one off and that those previously manufactured would have rounded edges on both sides. However, after a thorough check of our current stock, all fillet connectors have a razor sharp edge which inevitably damages the cables. ....

489. Power Centre are fully aware that the T pieces delivered to site have at least three locations where sharp edges are present. (refer to BB fax dated 23 Feb 1990). ...."

(The underlining is mine).

236 The presence of sharp edges was known to BB long before November, 1993, in fact from before the beginning of the work of installation. In 1988, at the time of the submission of samples by Power Centre the matter of sharp edges had been raised with BB by SVM and LM. Plastic insulators were used by BB, but as BB recognised, they were not a satisfactory solution. The trunking should have been delivered with the insulators attached but often they were missing and often when they were supplied they fell off due to temperature changes or for other reasons. Insulators were kept in stock by BB, but sometimes trunking was installed without insulators. A reason given for installing cables without insulators was that BB's stores had run out of insulators. There was conflicting evidence from BB as to whether their stores ran out of stock of insulators and it is likely that this was only a pretext, but even if true, it is no excuse.

237 On 13 December, 1989, SVM, after an inspection by Messrs. Marcovic, McCarthy and Jenkins of SVM and Mr. Tooley of PSA (agents of the plaintiffs) reported by memo to the SO that (among other failings of BB) the interior dividers of the multi-compartment trunking have metal clip in joints which "have very sharp sprags [burrs or protrusions] and will cause cable damage. They should be replaced..." That memorandum gives the lie to the allegation that SVM failed in their duty to inspect the trunking. Having found the defect, SVM did what was required of them, namely, they reported it to the SO. It is said that the memorandum did not come to the notice of BB: it was not SVM's duty to send a copy of the memorandum to BB and DNH cannot complain on that account.

238 On 7 August, 1991, Mr. Stark, then attached to the SO's staff as MRE, made an inspection of B4 above the false ceilings. Mr. Demopoulos of SVM was in attendance, again showing SVM involved in supervision. Despite a suggestion to the contrary, I accept the evidence of Mr. Griffiths (an expert called by SVM) that this must have been after cabling was installed in that area. Mr. Stark reported that plastic protection pieces were missing within the trunking. That report went to Mr. Nuttall of LM, to the SO and others. Mr. Stark noted a number of other defects and commented:

490. "In view of the number of defects found I would suggest that LM undertake a more comprehensive survey to identify all the remedial work to be carried out by [BB]".

239 On 31 August, 1991, (LM memo C/17918) Mr. Barr of LM reported inspections made by LM on 22 August, 1991 which included checking for damaged cables at bends and tees.

240 On 12 December, 1991, Mr. Tooley reported to the SO with a copy to PSA and Mr. Nuttall of LM that an inspection of 1AA and 1AB superstructure showed that insulators were still missing from T pieces, and cables were left unprotected. He commented that urgent action was required from LM.

241 On 7 February, 1992 Mr. Tooley again reported to the SO, this time in relation to the basements, that the electrical work by BB on the mechanical bookhandling was not up to standard and also that "BB have still not installed insulators to sharp edges in trunking work, this is ongoing from early 1991".

242 On 3 March, 1992, Mr. Tooley yet again complained to the SO with copies to PSA, SVM, and LM, that BB were still not installing insulators to T pieces before cables were installed. "This is ongoing since early 1991, on questioning Mr. R.Barr (LM) he has stated that BB do not have a stock on site. I feel that installing cables around these sharp edges could cause damage to cable insulation".

243 On 28 May, 1992, Mr. Tooley was still protesting about the danger in a memorandum written to the SO with copies to MRE, PSA, and LM:

491. "On a general site inspection of 1AB Superstructure, I am still very concerned that insulators to T piece sections on three compartment trunking are still not fitted to all sharp corners in most areas.

492. I have been requesting insulators to be fitted to these units since 17.10.91, 12.12 91, 3.3.92.

493. My concern is that live wiring is installed in many areas throughout the site, and on a safety factor is totally unacceptable."

494. Some wiring was live, as stated by Mr. Tooley, and was supplying power to other trades contractors.

244 Mr. Tooley is well qualified as an electrician and was widely respected on site. His comments could not be ignored as unrealistic but nothing seems to have been done by the plaintiffs or LM to put this urgent and important matter right.

245 On 1 June, 1992, Mr. Ron Johnson, the Building Services Co-Ordinator of LM and a very senior man in the company, eventually responded in terms which demonstrated that the matter was not being taken at all seriously:

495. "Further to your memo dated 28/5/92 the contractor involved [BB] has been advised and is aware of the situation.

496. At the time of cable installation the insulators were not available from the manufacturer but in the interest of progressing the works cables were installed without them. Great care and attention is taken during the cable laying within the trunking and on completion prior to 'power on' both visual and electrical tests are carried out."

246 Mr. Johnson's memorandum was plainly written after consultation with BB and it shows that:

497. (a) BB installed cable in the trunking knowing that there were sharp edges which ought to have been but which were not protected;

498. (b) LM condoned that practice;

499. (c) BB and LM recognised that in the circumstances "great care and attention" was required in installation by contrast with the contention in this action that BB were required only to show the care and attention to be expected of the ordinary electrician;

500. (d) LM recognised that good practice required that cables be "laid" in the trunking by contrast with the contentions of the plaintiffs in this action that it is impossible to "lay" cables in lid down trunking and that it is common and good practice to "pull" cables through and by contrast with the evidence that it was common for BB to "pull" cables through rather than to lay them in the trunking.

501. (e) BB and LM contended that any faults would be detected by visual and electrical tests, by contrast with the contention in this action that the nature of lid down trunking was such that visual inspection was very difficult if not impossible and by contrast with the evidence of the man responsible for electrical testing who found only one cable fault by electrical testing in a period of years;

502. (f) This was one of many occasions on which it would have been appropriate for BB and LM to have said, if it were true, that the real problem was not sharp edges and workmanship but difficulties imposed on BB by the design, and there was no such comment or protest before February, 1993.

247 More that a year later, on 17 August, 1993, Mr. Bloomfield of SVM wrote to Mr. Ron Johnson, LM's Building Services Manager with a copy to the SO and PSA. That memorandum is worth reciting in full because it shows appalling workmanship and other practices on the part of BB, failure of LM by their supervision to stop those practices, and SVM performing their supervisory duty by pointing those matters out to LM, the SO and PSA:

503. "Further to the above inspection, carried out, for the second time, on Friday 13 August, we would once again express concern about the standard of the cabling installation. The number of damaged cables and standard of workmanship was again completely unacceptable.

504. It is our understanding that as a result of the first failure, the inspection was criticised by some for being over critical and for not completing the entire area. The inspection on Friday was attended by Derek Chavner who agreed with the inspection team's view on every damaged cable. The inspection also covered the whole of the Zone 2 plantroom. Despite this, due to the inspection being considered as a failure, in line with set down procedure, we would expect the contractor to carry out a full inspection of their own before the area is re-offered, and not just to action the identified snags.

505. We would like to take this opportunity to comment on more general items resulting from the internal trunking inspections. The first item being the painting of damaged cables presumably to disguise them from the inspecting team. We would ask the contractor to comment upon this practice, which appears to be quite widespread, as to whether they regard it as good installation practice.

506. The second comment we would like to make is that we feel that the agreed procedure of checking the trunking, prior to the installation being offered for preliminary inspection is not being followed, this being apparent due to the number of faults being found by the inspection team relatively easily."

507. What Mr. Griffiths referred to as a "deceitful practice" of disguising defects was initiated by someone senior to the electricians in BB, as was shown by the evidence of Mr. Nicholls who spoke of electricians being issued with felt tipped pens for that purpose.

508. SVM could do no more than put those matters in the hands of LM and the SO.

248 The risk of damage to cables by their being left unprotected on site was widespread. When work was in progress on trunking overhead, cables not yet installed were left hanging down unattended when they ought to have been coiled up out of harms way. Similarly, cables at floor level ought to have been protected when left. Mr. Chavner, amongst others, said that he frequently saw unprotected cables and drew the attention of BB to them orally. One example of very many is provided by a contemporaneous memorandum from Mr. Tooley (CoW) to Mr. Addison (SO) dated 7 August, 1991. Mr. Tooley drew attention to "the growing amount of unprotected cables" in various areas. He said that he had sent two memoranda to Mr. Nuttall of LM and spoken to LM people on the site team - "To date my efforts have proved negative". That example, among others which could be cited, showed that the plaintiffs knew what was going wrong, Mr. Tooley was performing his supervisory function, LM were not performing theirs, and BB, even when their errors were pointed out, were not putting right their bad work practices. The lack of protection to finished works was still giving cause for concern three years later at the SO's walkabout before his SO's meeting of

8 September, 1994.

249 It was put to Mr. Sworder of SVM that representatives of SVM walking about the site must have seen these bad practices 'if they existed' and should have mentioned them to BB and LM. Mr. Sworder and other witnesses from SVM say, and I accept, that they did mention them on many occasions not recorded in writing. The evidence is that LM and BB paid little attention to Mr. Tooley's complaints and there is no reason to believe that an added voice would have made or did make any difference at all.

250 It was for the SO, in effect the plaintiffs, to take up these matters with LM and BB. Sharp edges and leaving cables unprotected led to substantial cable damage. The fault was primarily with BB and secondarily with DNH and LM for failure to supervise. One can sympathise with the SO in his difficulties. At times the SO considered replacing LM but such a radical action would have created enormous difficulties. In the end the buck stopped with the DNH and the DNH failed to solve the known problems.

PULLING CABLES

251 The specification required that cables should be "laid in" the trunking. BB at the trial objected that one cannot "lay" cables in lid down trunking, but the meaning is clear that cables should be placed upwards into the trunking and secured with clips as the work progresses.

252 BB were by no means unanimous on this subject. Mr. Gordon agreed with a passage in a statement by Mr. Anderson a Chargehand and then a Senior Supervisor of BB:

509. "I would allocate the necessary number of men along the route, with at least one man at each position where there was a bend, off set or T piece to facilitate installation. The cable was always fed through the T piece by a man positioned before it. The cable would never be pulled through because this could result in burning of the cables."

510. His statement was intended to convey that what should happen did happen. I agree with Mr. Gordon as to what should have been done, and no doubt it did happen where there were good workmen and supervisors but that was not how the work was always done at BL.

253 As early as 9 May, 1989, Mr.Tooley recorded in his diary that in one area he had seen cables "pulled through poor trunking i.e. rags on the cut end". He reported the matter to Mr. Les Horton of LM who said he would have it dealt with.

254 Mr. Chavner of LM agreed with the experts called by SVM that cables should not be pulled through trunking. In his letter of 22 March, 1993 he wrote,

511. "Cables should be laid alongside the trunking and lifted and pushed up into the trunking and held in place with retaining clips..."

512. Even where it is not possible to lay the cables, as where the trunking goes through a firewall, the cable should not be pulled through but drawn through carefully with one electrician on one side of the obstruction leading the cable through and another on the other side drawing it along. As Mr. Chavner said, the electrician doing the work can feel with his fingers if the free passage of the cable is impeded by an edge or a constriction and should ensure that no damage is done.

255 Mr. Nigel Griffiths gave similar evidence. Mr. Griffiths was a most impressive witness. He went to Jesus College, Cambridge as an Open Mathematics Scholar: there he attained a First in the Mechanical Sciences Tripos, being awarded the Electrical Engineers' University Prize for the highest First Class Honours degree in electrical engineering papers: in part II of his degree he read Management Studies and was awarded a Distinction. He is a Fellow of the Institutions of Mechanical Engineers, and of Electrical Engineers, and of Building Services Engineers, and is a qualified Civil Engineer. SVM also called as an expert Mr. Laing. Mr. Laing was called as an expert because of his practical technical experience. Mr. Laing has in his working life moved from the workface to management, starting with a five year apprenticeship with James Scott & Co. and progressing to his present post as Operations Manager with Matthew Hall Limited. I was impressed by the evidence of both of them and accept their evidence.

256 In his evidence, Mr. Laing was emphatic that the cables should have been laid in the trunking with the lid off and not pulled in the trunking. He said that cables might have to be pulled through conduit: it would be a two man job with one man leading the cable in and the other pulling with care. He said that friction burns sometimes occurred in cable laying but usually in conduit. Regulations require that all the circuits should be pulled into a conduit at the same time (tied together and with a loop attached to the end of the bundle) to reduce the risk of friction burns. Pulling cables into trunking would be likely to cause cuts and scrapes on sharp edges and also friction burns.

257 Mr. Laing made it plain that he was not suggesting that there were not many competent electricians employed by BB, but that there was extensive damage was incontrovertible and it would only take a fairly small proportion of bad workmen to do the damage that was revealed. In his view there was a large number of not very good electricians on the site, otherwise you would not have got that amount of damage. He had never experienced a job which had that level of damage, or any serious level of damage.

258 The evidence of BB was ambivalent. Some said that cables were not pulled. Others, notably Mr. Cross, said that it was common and good practice to pull cables in trunking. Mr. Denis Cross is Senior Group Engineer at W.S.Atkins. He is a chartered engineer, a Fellow of the Chartered Institute of Building Services Engineers, and has a BSc in electrical engineering. His statement that it is common and good practice to pull cables in trunking is, on the body of the evidence before me, so startlingly and plainly wrong as to undermine all faith in his evidence.

259 The contention that it is good practice to pull cables in trunking was said to be supported by a book from Mr. Cross's library, "The Design of Electrical Services for Buildings" by F.Porges (3rd edition). Reference was made to page 67:

513. "To put cables in such trunking one normally takes the lid off, lays the cables in and replaces the lid, but it is possible over short distances or straight lengths to pull the cables in as one does with conduit. Whichever method is adopted the number of cables and size of trunking must be such that no damage is caused during installation. The same considerations apply as in the case of conduit."

514. The author is clearly saying there that pulling cables in trunking is the exception rather than the rule and he states that if it is done the same considerations apply as with conduit, where obviously it is not possible to lay the cables. Turning back to pages 61-63 of the book one sees that the author advises the same method as mentioned by Mr. Laing, namely that all the circuits should be pulled in at the same time, thus reducing the risk of friction damage caused by rubbing one cable against another. Mr. Porges emphasises that pulling is a job for an electrician and a mate, preferably in both sight and sound of each other. One gently feeds the cable in and the other pulls gently. "The whole job requires great care and needs co-operation between the two people at opposite ends of the run". At the BL there was no question of all the circuits being pulled into the trunking at the same time. What was done by BB clearly did not comply with the advice of Mr. Porges. I know nothing of the standing of Mr. Porges apart from his qualifications stated on the title page of his book, but his book was put in evidence to support the evidence called on behalf of DNH and it in fact strongly supports the evidence called on behalf of SVM. That is one of several matters calling in question the reliability of Mr. Cross.

260 Mr. Shaun Fetigan, a very experienced electrician who worked on the installation at BL, gave a description of how a cable should be fed through a firewall which accorded closely with the advice given by Mr. Porges, including a reference to the need for two men to be engaged on the task. He used a telling phrase, "You have to take your time doing it - you cannot just pull as if you are pulling a ship into harbour".

261 The overwhelming evidence of Mr. Griffiths, Mr. Laing, Mr. Chavner and others was that the cables should be laid in the lid down trunking with the lid off except in some very few places where, because of the restricted space (as when going through a firewall), the lid had to be on. In those places, the trunking became a conduit and should have been treated as such in installation practice. Even in the T pieces there were only two enclosed channels and they were only 200mm and 100mm long respectively. Those channels were not subject to a reduced CSA. The reduced CSA was in two open channels and the reduction would only become apparent when the lid was put on after the cables were laid, if the job was done properly.

262 If one cable is pulled across another too fast, even in a straight line, a friction burn may be caused. In the light of what I heard about the workforce employed by BB it is not surprising that such a thing should have happened.

263 Mr. Fetigan was one of the careful electricians on the site. There were other electricians on site who were not careful and there were not enough electricians and not enough supervisors. Mr. Reid Nicholls worked on the site for about 3 years in three separate periods, the first beginning in October, 1990. In his first period on site there were about 3 supervisors for each 40 electricians: in the second period there was a ratio of 1:30. He said that towards the end of his first period on site, July, 1991 BB transferred most of their electricians to the Channel Tunnel and a few went to Sellafield. At that time only 2 or 3 supervisors remained in BB's direct employment. In his second period on site leading up to June, 1993, working on 1AB superstructure he came into contact with a great many sub-contract electricians from Northern Cables who did not seem to be properly qualified electricians. During that period, the recession caused the companies providing contract labour to BB (in breach of BB's contract with DNH) to compete by cutting their hourly rates, and BB laid off many electricians, including Mr. Nicholls. In Mr. Nicholls' third period of work, from September, 1992 he was employed on remedial work to damaged cables in 1AB superstructure, where he was provided with coloured pens to disguise some of the scuff marks on the cables so that they would not have to be replaced. It may be that the scuff marks he described were what was later classed as insubstantial damage.

264 Mr. Nichols was asked about the nature of the BB labour force. He said,

"A. At first they were in two particular groups. I worked for Balfour Beatty. Then Northern Cables -- the actual guys from Balfour Beatty I thought were quite good, but we kept hearing horrible stories about people from Northern Cables. We were led to believe that not a lot of them were qualified, those that were were not particularly interested in what they were doing and that was that.

We had a couple of instances where -- we knew the chargehands for Northern Cables and he told me on one particular instance that he was dealing with about 20 guys, of which six were electricians. It is hard to prove, but that was the fact. He was just not impressed with what was going on.

Q. How about turnover of the labour force? Did it stay the same throughout, or what?

A. Over a three-year period -- once -- when I originally worked for the Balfour Beatty, they moved their guys away, then it became agency only, and then it was just

rapid turnover. There were guys getting sacked, left, right and centre, new people coming in all the time, people obviously leaving of their own accord. The turnover was getting pretty rapid. You just used to lose count, because there were always new faces Monday morning, old friends going on the Friday. It was a very sort of rapid turnover.

Q. I think you mentioned just then Balfour Beatty moving their own force away at some stage.

A. Yes. I worked directly for Balfour Beatty. They used to nickname them the "Highland crew". These guys had worked all over the country for Balfour Beatty. They had actually worked in the Falklands as well for Balfour Beatty. They moved them out to the Channel Tunnel and that was the best workforce I had ever worked with. I learnt quite a bit with those guys, they were excellent. Then they moved them off to the Channel Tunnel.

Q. By whom were they replaced and in what sort of numbers?

A. They were replaced by an agency called Fulcrest, which I later joined and started working for. Fulcrest were okay, I suppose, but these particular guys were very good on sort of major projects. They had worked together as a team -- like they knew the foreman very well, they all got on well. They worked together as a team very well."

515. When the "Highland Team" or "Highland Brigade" as they were more commonly known were on the job, they no doubt earned the commendations for high standards that can be seen in some of the documents. Unfortunately, they were not there all the time or throughout the site. In the circumstances described by Mr. Nicholls, it is not surprising that, as I heard, there was a low level of morale and a lack of pride in the work among many electricians on site.

265 Messrs. Laycock, Dodds, Housam, Mills (LM) and Nuttall all spoke of these labour difficulties.

266 An interesting example of a contemporaneous record of those difficulties is to be found in an entry in Mr. Tooley's diary for 16 March, 1990,

516. "All of the above work in progress areas are progressing to a very satisfactory standard. The electricians are now beginning to work as a team, in the sense that the turnover of labour is nowhere near as excessive as six months ago, which does help to progress the work more efficiently."

517. It is sad that it was so many months after the beginning of the work that Mr. Tooley recorded that the electricians were beginning to work together as a team. Even then, he does not record that the turnover of labour was satisfactory, only that it was "nowhere near as excessive" as it had been in September, 1989. The improvement did not last.

267 There was also clear evidence of insufficient supervisors even when BB, under pressure, later increased their labour force.

BB's CASE ON PULLING CABLES AND FRICTION BURNS

268 It was a part of the BB case, adopted by DNH, that pulling cables was forced on them by the lid down design.

269 In an attempt to divert blame away from cuts and scrapes caused by their defective trunking and bad workmanship BB sought to suggest that most of the damage took the form of friction burns, and hence, on their argument by bad design. That attempt was fruitless since friction burns also were caused by BB's bad workmanship, but it was in any event wrong. Cuts and scrapes were more frequent than friction burns.

270 BB wrote a letter to LM dated 23 February, 1993. That letter, drafted primarily by Mr. Laycock, was said by counsel for DNH to be substantially the case of DNH against SVM. The letter gave notice of BB's intention to replace damaged single core cable and to recover the cost from DNH under the contract as damage outside the control of the contractor arising from defects in design.

271 The 23 February, 1993 letter is the first occasion on which BB mentioned friction burns. BB say in the letter that they first became aware of the friction burn problem when making inspections before Christmas 1992. The reasoning supporting the claim for payment began:

518. "The damage to these cables comprises of 'friction burns' to the PVC insulation, which is the result of 'pulling' cables into the trunking against previously installed cables 'stationary' within the trunking.

519. The pulling in of additional cables into already wired trunking is unavoidable, with many circuits throughout the project having route lengths in excess of 100 metres. It therefore follows that 100 metre lengths of PVC cable is pulled through (not laid in) stationary cables within the trunking resulting in these 'friction burns'.

520. There are a number of contributing factors resulting in friction burns to cables which can be attributed to defects in the design of the works or a requirement imposed on BB as to the method of executing the works, these we highlight below:

521. (i) The cable trunking upside down

............

522. (ii) Routes of cable trunking

..............

523. (iii) Late design changes and increased volume of circuit requirements

..............

524. (iv) Strapping of conductors together

.............."

272 The letter itself shows that on BB's (and now DNH's) own case, damage was caused by BB pulling cables into trunking instead of laying them in trunking, in breach of the requirements of the specification and contrary to the requirements of good working practice.

273 In reply to that letter, on 22 March, 1993, Mr. Chavner remarked on BB's admission that they had pulled cables and also on their concentration on friction damage:

525. "We acknowledge your admissions that you have pulled cables into trunking resulting in friction burns to the insulation but note you have failed to mention the damage caused by sharp edges at the intersections of bends tees etc. This has resulted in insulation being stripped off and exposing bare copper".

526. In his oral evidence, Mr. Chavner made it plain that that was what he had seen with his own eyes.

274 After their "claim letter", BB sought to promote the idea that the damage was mainly friction burns.

275 That was one of the suggestions made by BB in a formal claim document "Damage to PVC Single Cables Submission" dated 21 June, 1993.

276 At a meeting on 22 June, 1993 between PSA, SVM, LM and directors of BB, BB alone claimed that damage was due to the design of the installation and changes instructed during the course of the work. There was total disagreement from PSA (for the plaintiffs), SVM, and LM who all said that the damage was caused by poor workmanship and lack of care in installation.

277 The same parties met again on 25 June, 1993 and began with an inspection of damage at B1 Zone 4, B1 Zone 5, B Zone 5 and SRI Level 1. PSA said that there should be no management cost to DNH in putting the defects right.

278 On a walkabout on site on 25 June, 1993, it was stressed to Mr. Carver of SVM that damage was essentially burns to existing cables when new instructions required further cables in the trunking when the trunking was already full and in circumstances where trunking arrangements were complex. Mr. Carver investigated that contention. On 25 June, 1993 he saw the SRIS reading room on level 1 Zone 6 where the ceilings had been taken down and the lids were off the trunking for inspection. He saw the cables himself. BB had been making a survey, and Mr. Carver obtained the original notes made by BB of the results of the survey and made his analysis of those results. Mr. Carver said in evidence, which I accept, that there were 300 cables in the area. If 300 cables had been put into one length of 3 compartment trunking, that trunking would have been reasonably full though not overfull: but in fact, the 300 cables came into the area from 3 risers and from each riser were divided in two different directions, so that each section of trunking was in fact quite lightly loaded. In the reading room, the three compartment trunking was used mainly for lighting and signal cables. The cables feeding power points were in trunking under the floor. Moreover, Mr. Carver observed that the trunking in that area was not complex, in that there were not many bends sets or Tees. The damage analysed by Mr. Carver was:

%

527. Total no. of instances of damage 844 100

528. Scuffed/scraped 598 71

529. More than scuffed/ deep scuff nick 164 19

Burns 10 1.1

530. Down to copper 72 8.5

531. Mr. Carver recorded his findings at the time in two memoranda dated 25 June, 1993 to the PSA and the SO.

279 Mr. Cross in cross-examination had to accept that there were in that area very many very serious defects even though in that area, the trunking was not complex and the cables not large in number. There was no apparent reason for any blame to be put upon the design, and Mr. Cross, when asked, had no explanation. The figures, which are not disputed, certainly do not support the thesis that the damage was mainly from friction burns. The inescapable conclusion to be drawn from the evidence is that the damage in that area, both scuffs and nicks and friction burns, was due to bad workmanship and not to design. In the face of that evidence, all the contentions that bad workmanship was inherently unlikely because electricians are careful people as a class are seen to have no weight.

280 I have already referred to the observations of Mr Hedgland and Messrs. Kennedy and Donkin in the autumn of 1993. The contentions of BB were in their minds, and they record seeing cuts and scrapes from sharp edges, but not friction burns.

281 Mr.Chavner on behalf of LM made a written response to the submission of BB. In that response, Mr. Chavner challenged BB's claim that they first became aware of friction burns in their inspections before Christmas 1992. He said that BB first became aware of friction burns in about 1988 or 1989 when they re-wired damaged cables at their own expense and without claim in B4 FC 7.1. In evidence, Mr. Chavner conceded that that awareness may not have passed up to BB management though BB's electricians and supervisors were so aware. BB can take little comfort from that concession. I accept Mr. Chavner's evidence that BB's electrician's and supervisors knew about friction burns as early as 1988 or 1989 and I accept that that knowledge did not pass to the management of BB at the time, but it ought to have done, and appropriate steps should have been taken to ensure that no further friction burns were caused. When Mr. Laycock drafted the letter of 23 February, 1993 he stated the position as he knew it, but the letter did not reflect the knowledge which was held in the company as a whole and which ought to have been known to the management. Of equal importance was Mr. Chavner's comment in 1993 in his written response, "Many cables have been snagged on sharp edges. BB must not avoid this fact by reference to friction burns." Mr. Chavner reiterated that statement in his evidence at the trial.

282 At a technical meeting on 10 February, 1994, between senior representatives of BL, LM, SVM, DNH and BB, it was recognised that there were two types of damage for attention, friction burns and cutting.

  1. I have much more faith in the details obtained at the time and the parties contemporaneous reactions to them than I have in much of the later reconstructions. Cuts and scrapes were more frequent than friction burns. Moreover, it has not been shown that any single cable was replaced because of friction burns which would not in any event have been replaced because of a cut or scrape on the same cable. If there were cables which were replaced because of friction burns only, the amount of damages attributable to those cables as opposed to others has not been demonstrated.

CRITICISMS OF DESIGN

284 DNH's primary case is that, given SVM's design, it would have been impossible, even if special care had been taken, to avoid substantial damage being caused to cables.

LID DOWN TRUNKING

285 Counsel for DNH submits that

532. "use of lid-down trunking in a construction of this type is properly to be regarded as 'experimental'. Although lid-down trunking is a well known construction method, it is usually used only where the volume of cables to be carried is light and where there are to be long straight runs of trunking or in particular locations where problems of access or other technical requirements make it expedient or sensible to use a limited amount of lid-down trunking. A clear example of this latter use of lid-down trunking is provided by the Completion Phase in the Library. ... There was moreover no reason or need to adopt such an approach, since the conventional method of lid-up trunking was well-known tried and tested, and its successful use in the Completion Phase demonstrates that it was also appropriate in the Library."

286 Evidence was given in support of counsel's submission by a number of witnesses. I cite, by way of example only, the evidence of Mr. Derek Mills, who was appointed as LM's Site Wide Electrical Manager on 1 August, 1992. In his written statement given in chief, Mr. Mills spoke of BB's labour difficulties and of the presence of unqualified agency electricians. In September, 1992 and onwards he was concerned that BB should increase their labour force both in quantity and quality, but in his opinion that would not have solved the problem of cable damage because the damage was due to poor trunking design. I reject the evidence of Mr. Mills and others that cable damage was caused by poor trunking design for the following reasons.

287 In cross-examination Mr. Mills accepted that there were many instances of very bad workmanship which had nothing to do with trunking. Moreover, his evidence was variable: in examination-in-chief, he first verified his written statements and then gave differing evidence. In cross-examination, his answers tended to be either evasive or argumentative.

288 As I have already indicated earlier in this judgment, counsel's submission is inconsistent with the views of representatives of counsel's own clients. I mention again,

533. (a) The evidence of Mr. Honer in this action;

534. (b) What was said, and not said, at the meeting of 21 June, 1993 between Messrs. Brown, Wallace, Addison, Nuttall, Johnson, Chavner, Carver, and Smith (see paragraph 180 of this Judgment);

535. (c) The view of Mr. Wallace of PSA in his memorandum of 23 June, 1993,

536. "Trunking with covers on the bottom is referred to in PSA M & EI clause 8.05.7 and has been widely used over many years in the UK construction industry";

537. (d) The report from Kennedy and Donkin Building Services Limited (K&D), commissioned by DNH, dated 6 October, 1993,

538. "The fact that the trunking was installed lid down was an engineering choice made by the designers and is an approved method within the PSA standard specification (M&E No.1 Engineering Specifications Electrical Installations 1985, clause 8.05.7). In our opinion, the specification for the cable trunking could have produced, if adhered to, an installation that was safe and fit for purpose. The installation of large numbers of cables in lid down trunking does require special care by the contractor who would find the process more difficult than laying cables in lid up trunking. However this was specified within the contract documents at the time of tender."

539. Mr. Whitewood for some reason said that he did not now adhere to that part of his report.

540. (e) McLarens in their preliminary report dated 8 February, 1994,

541. "Although much criticism has been made of the design of the installation with the use of inverted trunking, we are of the view that with reasonable care it ought to have been possible to have installed the cables without causing damage."

542. (f)WS Atkins' Preliminary Report of May or June, 1994,

"WS Atkins do not consider lid-down trunking systems as unusual. Furthermore, PSA specification M&E 1, clause 8.5.7, which is referred to in the electrical

specification permits the use of lid down trunking.

...

WS Atkins considers that under normal circumstances and providing suitable installation procedures are adopted, installation of cables in lid-down trunking should not cause cable damage."

.....

543. WS Atkins considers that there are adequate installation procedures available which allow large numbers of cables to be installed into lid-down trunking systems without the resultant damage that has occurred."

544. It is significant that WS Atkins then (but not apparently now if the evidence of Mr. Cross represents the view of WS Atkins) believed that even large numbers of cables could be installed into lid down trunking, thus disposing of one of counsel's refinements.

289 To those statements are to be added the evidence of Mr.Chavner, both contemporaneously and in this trial. In evidence Mr. Chavner said that he regarded SVM's original design as basically sound though in his view it later became more complicated with long runs. He appreciated at least as early as September, 1988, that the Specification required lid down trunking because he remarked on it in his letter of 23 September, 1988. In response to BB's "claim letter" of 23 February, 1993 he wrote on 22 March, 1993,

545. "The fact that the trunking system has been designed with the lid facing down is not a "defect in design" and is normal practice on many installations".

546. And in response to BB's June 1993 "Submission", Mr. Chavner wrote.

547. "Note: Trunking "lid down" was the current practice in 1988 and M & E I 8.05.7 has been in existence for many years"

290 Mr. Laing also, in his evidence said that lid down trunking was fashionable at the time. He said:

548. " ... at the time this job was done, there were many contracts with lid-down trunking" ... "it was much more fashionable".

291 Mr. Laing gave evidence of other jobs at the time where Multi-compartment, lid-down trunking was used throughout:

549. - Belmarsh Prison

550. - Heathrow Terminal One

551. - Westminster & Chelsea Hospital (where Les Wallis was in charge for LM between 1990 and 1993)

- 99 Bishopsgate.

292 SVM also provided examples of their own previous use of multi-compartment lid-down trunking,

552. - WD & HO Wills Factory, Bristol: Mr. Cross was able to inspect this and found up to 160 cables in one compartment;

553. - St Thomas' Hospital

554. - Wellington Barracks.

293 Inevitably, no project precisely similar to the British Library could be cited because the British Library is unique. Differences between the British Library and the named projects were explored.

294 Mr. Griffiths also gave evidence largely in keeping with the evidence of those concerned with the project which I have cited, and supporting the evidence of Mr. Sworder of SVM that there have been many projects in which lid down trunking has been used on a large scale.

295 A specious argument was put to Mr. Griffiths that because lid-down trunking was not shown in some illustrative drawings in Appendix 9 to the IEE Regulations, lid down trunking was not recognised by those regulations. Even Mr. Cross considered that a bad point, and Mr. Griffiths rightly rejected it. Appendix 9 deals with heat dissipation, not physical damage to cable, and the drawings are simply illustrative examples.

296 Mr. Griffiths was asked about opinions expressed in the reports of Mr. Anstee and Mr. Hedgeland. Those reports are not evidence in this action. Neither Mr. Anstee nor Mr. Hedgeland was called as an expert witness, nor could they be since leave was not given for them to be called over and above those for whom leave was given. The reports of both are in any event unreliable. Mr. Anstee wrote nothing about defective trunking or bad workmanship, and Mr. Griffiths on that account said that he was biassed: if he had not stated the terms of his brief in unlimited terms, one might have taken a more generous view of Mr. Anstee's report by assuming that perhaps there was some restriction in the instructions given to him: it is any event not a rounded report. Mr. Hedgeland was so various that he seemed to be, in the eyes of Mr. Pardey, providing reports that were "negotiable". Mr. Griffiths saw no reason to doubt his factual observations but remarked with some meiosis that his conclusions were "somewhat flexible".

297 The evidence of Mr. Griffiths and Mr. Laing was attacked in cross-examination also on the basis that they took insufficient account of the evidence of the electricians from BB who had worked on site, the evidence referred to by Mr. Slater as "500 years of experience". I heard the evidence of a number of witnesses who said, and I do not doubt them, that they had not previously worked on a site where lid down trunking was used throughout. Two of them told me that when first starting to install trunking they installed it lid up because that was what they were used to. Their supervisors did not agree with them that that must be the right way to do it: they were corrected and told to install lid down in accordance with the specification. For such evidence to have any weight, either a statistically relevant sample of witnesses must be randomly selected from the workforce as a whole, (the total workforce including comings and goings would have been in excess of 1000 men), or the Court should at least be told how many men were approached as possible witnesses and how many rejected. I do not doubt that there are many experienced electricians who have not worked on a large site where lid down trunking was used throughout. That does not cause me to doubt the evidence on which SVM rely.

298 Electricians have worked without trouble on a large section of BL where lid down trunking was used in part, namely CP3 where there were 1.5 kilometres of lid down trunking. There is no reason why the electricians should not have worked also without trouble on the earlier part of the project where lid down trunking was used more extensively.

299 Mr. Shaun Fetigan, (the electrician to whom I have previously referred), when pressed in examination in chief by counsel for DNH to speak of difficulty of work at BL, said that wiring with lid down trunking was "awkward -not difficult, awkward" and when pressed again he said that lid down trunking "makes it more awkward - not hard - awkward". The evidence of Mr. Griffiths and Mr.Laing was that lid down in some situations is slower and harder work than lid up but it should not lead to cable damage, in other situations, as where the trunking is close up to the ceiling or other ducting, lid down is much more convenient for installation and later inspection and maintenance.

300 With some diffidence I cite my experience with Mr. Laing's mock-up in Southwark: in doing so, I remind myself that it is all too easy for the outsider to form a wrong impression on the basis of a short visit. I removed a clip and pushed up 240 cables and replaced the clip without difficulty. In doing so, I did not find the weight excessive for my soft muscles, nor did I find any lack of space in the (straight) section of trunking. Of course, I would have tired easily had I continued for long, but I am not in training for the work. Mr. Griffiths said, and I believe him, that he pushed up 360 cables without difficulty. BB witnesses spoke of pushing up a weight of 40 Kilograms when a length of 1 metre was hanging down. They also said that the clips would not retain such weights and it was necessary to place the lids on and pull cables through, particularly at bends. It was evident from their descriptions of doing the work that electricians were in some instances taking off too many clips at a time so that too long a length of cable hung down making a weight too heavy for the clips at the end of the length and indeed too heavy a weight for a man to bear. In other instances, the electricians were not taking clips off and were simply pulling cables through above them. The correct practice is to remove only one clip at a time (thus avoiding having to deal with an unmanageable weight of cable) and lay the additional cable either below or to one side or above the existing cable. If that practice is followed, the electrician has to bear no greater weight on a long run than when he is working on a short run. Of course, it takes longer to follow the procedure prescribed by the specification, which no doubt is why it so often was not done.

301 I accept the evidence of Mr. Griffiths that if proper workmanship practices are followed, there is no greater danger of cutting or friction damage with lid down than with lid up trunking.

302 Other engineers might well have chosen a mixture of lid down and lid up trunking for Stages 1AA and 1AB as was done by other engineers, Haden Young, for CP3. If SVM were designing the system again today they might well design it with a mixture of lid up and lid down. (Even in the strange postures adopted in this action, DNH do not suggest that the preference expressed by PSA for lid up trunking by M&E 1 clause 8.08.4 is an absolute bar to lid down trunking, since it is commended as a good approach to design in CP3 to have a mixture of the two). However, even in the absence of evidence from Mr. Marcovic or anyone else who actually made the design, I am in no doubt that in selecting lid down throughout, SVM were not in breach of contract and they were not in breach of any duty at common law.

303 I am also in no doubt that the selection of lid down trunking did not cause or contribute to causing cable damage.

TRUNKING OVERLOADED WITH CABLES

304 DNH have a subsidiary case that even if the use of lid-down trunking is uncontroversial when "lightly loaded", it becomes unsuitable when more heavily loaded.

305 I therefore turn to examine the case of DNH that the trunking was overloaded.

306 If it was overloading the trunking which caused cable damage, on BB's case one would expect to see no damage where the loading was not heavy.

307 There were in fact many areas where there was light loading, no complexity in the trunking and no long cables and yet there was a considerable amount of damage.

308 Mr. Carver in his evidence drew an important distinction between most of the superstructure and the bookstacks on the one hand and the basement plant rooms on the other. In the office areas and in the areas for readers in the superstructure, in general, the cables feeding power to power points and equipment are in channels under the floor because the power points are mainly near floor level. The trunking above the ceiling is mainly used for lighting with some signal cables. In the bookstacks in the basement (to which access can only be gained with a high security pass), there is very little need for small power because, no readers being allowed there, there is no requirement for readers to plug computers into power points. As a result, the three channel trunking above the ceiling in those large areas is fairly lightly loaded. Yet still there was much damage to cables in three channel trunking in those areas. There was also damage (not complained of in this action) to cables in underfloor trunking in the superstructure.

309 It is therefore highly improbable that overloading was to blame for cable damage. That improbability is reflected in the facts.

310 The first examples (to which I have already referred) are the many categories of damage mentioned in the Statement of Claim of which no complaint is made: in some of those instances there was no trunking.

311 At a very early date, BB recognised the improbability of cable damage in the superstructure if the damage was due to cable congestion. In their claim letter of 23 February, 1993 they wrote:

555. "Within 1AB superstructure, relatively few cables (four circuits) have been found damaged to date. This is because the cable trunkings are not as congested with cables, and therefore have not the same comparative weight of stationary cables within the trunking likely to cause friction burns when additional cables are pulled into the trunking."

556. That argument was completely destroyed by later events. The Schedule attached to the Statement of Claim shows that in 1AB superstructure, as a result of later inspections, 1,604 cables were rewired amounting to 23.34% of the cables. The cost of rewiring those cables, 110,869 metres in length, is part of the claim in this action. The plaintiffs do not explain how it is that, in an area where on their case very little damage was to be expected, a quarter of the cables were found to be damaged. The only possible explanation is bad workmanship.

312 I have already referred to the striking results of Mr. Carver's investigations regarding the SRIS Reading Room on Level 1 Zone 6 on 25 June, 1993. That is extremely important evidence.

313 I heard evidence from Mr. John Hughes, who worked as Senior Building Services Manager for LM at BL from July, 1993 to December, 1995. He is a very experienced man and was responsible for all Mechanical & Electrical Services for the 1AB block superstructure. He said that on Level 4 the trunking was too small for the number of cables, but that made no contribution to cable damage because BB were instructed to provide relief trunking (and were paid for it) so that the trunking was not congested. He also said that the problems with the trunking were compounded in the T pieces: he mentioned in particular two areas, north of the Science Reading areas adjacent to the central core, and at Level 5 south of Riser 2. In the latter area one Tee piece was particularly hard to get at because of ductwork above and below. But Mr. Hughes accepted that that was one only of very many Tee pieces in the Library. He also accepted that damage occurred both in areas where there was congestion and in areas where there was not.

314 To the evidence of eye witnesses is added statistical analyses to the same effect, that there is no correlation between cable damage and density of cables in trunking.

315 Kennedy and Donkin prepared papers for a Damaged Cable Audit at which all interested parties were represented on 14 June, 1994. Those papers included a scattergram on which the results of inspections of damage were plotted. That scattergram plotted the number of faults against the number of cables in trunking. If there are more cables in trunking available to be damaged, one would expect to see more faults, but the scattergram does not show that result. In the highest band of quantity of cables in trunking, 250-300, there was only one reading of faults - for a density of 261 there was a reading of 16 faults. There were only 3 other readings of faults at the same high level and they were at cable densities of between 60 and 140. The overwhelming number of faults were found between cable densities of 0-100 with another sizeable quantity between densities 100-150. Between densities 150-250 there were only 10 readings. The IEE Regulations, 15th edition, Appendix 12 allows over 370 cables of the relevant size in a 100mm x 100mm trunking compartment.

316 Mr. Griffiths prepared an analysis designed to avoid the statistical crudity of the Kennedy & Donkin scattergram. Mr. Griffiths compared the percentage of cables damaged with cable population. That comparison, and the detailed statistical analysis which Mr. Griffiths made led him to the conclusion that

557. "This proves that the plaintiffs' allegation, (that SVM's design was wrong because it had too many cables in the trunking), is totally unfounded."

558. That analysis and the conclusion were supplied to the plaintiffs as long ago as 30 December, 1996 and were not challenged in cross-examination. The analysis having been made by a highly qualified and independent mathematician and engineer could not be faulted.

317 Mr. Griffiths added:

559. "It is worth noting that in some areas there were very few cables in the trunking but still BB damaged them. Examples are:

Location No. of Cables % Rewired

Riser 2, Level 7 24 21%

Riser 10, Level 6 21 33%

Outstation 50 30 37%"

318 In his Supplementary Report of January, 1998, at Appendix I Mr. Griffiths carried out a further analysis. This time he took BB's trunking layout drawings and plotted on each the data extracted from BB's own cable repair survey sheets, thus showing at each location, and for each compartment, the actual number of cables, the number of cables expressed as a percentage of the number of cables allowed by Appendix 12 of the IEE Regulations, and the number of cables damaged. On the drawings, Mr. Griffiths coloured in those lengths of trunking where on Mr. Cross's thesis the damage should have been negligible (namely those where trunking is not particularly complex, is not close to full capacity, and incorporate either 45 degree sets or gusseted bends). Contrary to Mr. Cross's thesis, there is widespread damage at the coloured locations. Mr. Griffiths concluded, "Therefore BB's workmanship/materials were poor and did cause the damage.The Ducksbury/Cross opinion is thus disproved."

(I should explain Mr. Griffiths' reference to the Ducksbury/Cross opinion. The written report presented by Mr. Cross was written in collaboration with a Mr. Ducksbury, and by agreement Mr. Cross spoke to the whole of it).

319 There was no cross-examination of Mr. Griffiths in relation to Appendix I of his supplementary report. If the explanation for that is that counsel was limited by a "guillotine" on time taken, no similar explanation can be given for the failure of Mr. Cross to produce an answer to the Appendix by a supplementary statement during the course of the trial.

320 Even Mr. Cross's Report and its appendices show many examples of cables damaged in trunking containing less than 100 cables down to 21 cables.

321 In practice, of course, trunking could not be overloaded without BB seeing that it was overloaded and it would be bad workmanship on their part to overload trunking. When BB thought that trunking was becoming overloaded, the appropriate step for them to take, and which they did take from time to time, was to ask for authority in the form of an MCI to install relief trunking. The MCI was both an instruction to BB to install relief trunking and their authority to be paid additional payment for the relief trunking. The MCI was issued by LM after taking advice from SVM. SVM in turn took advice from PSA because of the cost implications. The attitude of LM and SVM was that if BB felt that relief trunking was required, BB could install it, but they would only be paid for relief trunking if an MCI were issued. There were disputes as to whether trunking was overfull in specific instances, because it was said sometimes that the trunking only looked overloaded because the cables had not been properly "loomed" or "dressed", that is, they had not been laid sufficiently neatly in the trunking. By the nature of the operation, it was impossible that the cables should be laid entirely neatly like sticks of dry spaghetti laid neatly on top of each other in a trough. It is a matter of judgment and degree whether the cables were adequately dressed, and when disputes arose, calculations were made applying tables commonly used in the trade and taken from the IEE Regulations.

322 Mr. Cross accepted that calculations based on Appendix 12 to the IEE Regulations 15th edition (the edition current at the time of the SVM design) did not, on the face of them show that trunking was overloaded save in one or two instances. But Mr. Cross (following a K&D Report) said that the calculations needed to be "de-rated", that is, made to produce more stringent requirements. Because there must of necessity be some spaces between cables, the Regulations require calculations which work on the footing that only 45% of the available space is calculated to be filled: this is called the 45% "space factor". Only in the plant rooms could it be said that calculations showed that trunking was full to capacity, and even there, the trunking could only be said to be overfull if the 45% space factor were "de-rated". This use of the word "de-rating" seems to be unique to the plaintiffs' case since the rating of a cable is normally understood to be its current carrying capacity. It was argued that there should be some de-rating where lid down trunking was used. There is no authority for that and the proposition is not logical. It was also argued that the 45% space factor should be de-rated where a run of trunking contains a number of adjacent bends or tees. That argument was based on a Report of the Electrical Research Association not published until 1992 and not implemented in later editions of the Regulations. SVM cannot be criticised for failing to take that into account either when making the original design or in considering, or not considering, any later re-design. In any event, with only a very few exceptions, bends and tees were not "adjacent". To support his argument, Mr. Cross put in evidence a drawing of cables in a bend which was so grossly out of scale as to be seriously misleading: he explained the distortion of scale by saying that without it one would not see the point. That was another reason why I found the evidence of Mr. Cross unreliable.

323 I accept the opinion expressed by Mr. Griffiths that trunking that has cables whose total cross sectional area equates to 45% of the net cross sectional area of the trunking should not give rise to damage. I also accept Mr. Griffiths' review of the available evidence that in only a minimal number of instances could it be shown by calculation that the trunking was overcrowded and it is only an exceptional circumstance and is not a central issue to why cable damage occurred.

560. "I believe that in a minimal number of locations it would have been overcrowded. There was one location identified by K&D. I believe I can demonstrate that the two locations the subject of the Defendant's submission last week, and response by Mr Cross, were not in fact overloaded, and I believe that it is a totally exceptional circumstance and is not a central issue to why cable damage occurred.

Cable damage occurred everywhere. Cable damage occurred irrespective of the degree of loading and irrespective of the relative complexity or otherwise of the trunking."

561. At another point, Mr. Griffiths observed,

562. "BB comprehensively damaged cables right down to virtually empty trunking."

324 Here I must consider the effect on calculations of load factors of the reduced CSA under the bridges in the Tee pieces.

325 Having approved the replacement sample which still did not have the full CSA in the two enclosed channels under the bridges, up until February 1990 SVM wrongly believed that the full CSA of 100 x 100mm was available throughout the T pieces: in fact only 100 x 75mm (LM's measurement) or 100 x 70 (Mr. Cross's measurement) was available in two of the open compartments at Tee pieces.

326 The reduced CSA was discovered in February, 1990 when BB said that the trunking in the area B4 FC7 was inadequate for the cabling required. The trunking was measured by BB and LM and the restrictions in the T piece were found.

327 By February, 1990, it was too late to take out all the T pieces and replace them with T pieces conforming to the specification rather than to the sample. Certainly, SVM did not suggest that course, nor did SVM suggest replacing a limited number of T pieces at points where density of cables was at higher levels. The original design, which envisaged trunking with no reduced CSA at any point, was followed without modification to take account of the reduced CSA. In the event, some personal irritation, but no damage, flowed from that. It was here that perhaps Mr. Smith's lack of experience showed itself.

328 After discovery of the reduced CSA in February, 1990, SVM made their calculations of cable loadings on the basis of LM's measurements of 100x75mm. If Mr. Smith had measured the channel himself he might have taken the smaller measurements put forward by Mr. Cross and produced smaller figures for trunking factors. But SVM took the line, on instruction from PSA, that BB were in breach of contract by supplying T pieces which did not conform with the specification. SVM operated a policy whereby they would as a general rule only recommend that LM should issue an MCI to instruct relief trunking (i.e. so as to qualify for extra payment) if relief trunking would have been required if the T piece had been in accordance with specification. Under this policy, SVM recommended the issue of an MCI only if the calculated cable factor for the number of cables to be installed in the section of trunking exceeded 4252, that is, the factor recommended by Appendix 12 of the IEE Regulations 100 x 100mm trunking. That was purely a financial matter. SVM were not directing BB to cram into the trunking more than would fit into the reduced CSA of the T pieces. They merely took the stand that if it was BB's error which caused relief trunking to be required, BB should pay for the relief trunking. SVM said that they did this after consultation with PSA, an assertion which was corroborated by an entry in Mr. Tooley's diary for 19.June 1990

563. " ... this problem has been passed to SVM by myself, for them to decide as to it being a Design problem or Balfour Beatty problem, as regard to whom the cost is to be debited to".

329 The initiative was taken in the matter of refusing relief trunking both in February 1990 and again in August 1990 by Mr. Tooley who said relief trunking "was not required as cables would all fit if carefully installed". The opposition to relief trunking came from PSA itself. Mr. Chavner in evidence confirmed that SVM did not have some unreasoning prejudice against relief trunking:

564. "Q. It certainly would not be right to say that SVM operated some sort of blanket refusal to grant relief trunking?

565. A. Definitely not, no".

330 An early allegation was that SVM had issued an MCI for relief trunking, MCI 1250, and then captiously withdrawn it. After lengthy investigation, it appeared that what had happened was that SVM recommended to LM (who alone could issue an MCI - Management Contractor's Instruction) that the MCI should be issued, it was issued, and the MCI was then withdrawn not by SVM but by PSA. It was later reinstated.

331 I do not propose to rehearse all the very lengthy evidence about the troublesome MCI 1250, but it is instructive to look at some of the evidence of Mr. Gordon (BB's Commercial Manager) about it. He said, in his written statement:

566. " A request was made for an additional 100mm x 100mm relief trunking between Riser 7 and the Trolley Charger Room and this was issued on MCI 1250 but later rescinded and we were subsequently told that there was sufficient room to pull all the cables in. We then had to pull all the cables out, sort into circuits and re-install with the new circuits before the lids could be fitted. We have since had to install further circuits for the reheat batteries, interface and fans. These operations have involved us in a considerable amount of abortive work which could have been avoided if MCI 1250 had gone ahead."

567. Mr. Gordon's reference to the need to sort into circuits before the lids could be fitted indicates that the cables were not properly dressed on the initial installation and that it was this bad workmanship which caused the cables not to fit in the trunking. Once the cables had been dressed, the lids did fit. There was evidence that that re-dressing could and should have been done without taking the cables out, but that, and indeed the whole of Mr. Gordon's complaint, goes only to disruption and cost to BB, not to cable damage.

332 Mr. Gordon's evidence showed that BB and the plaintiffs were hard put to it to find examples of congestion of cables which could possibly be related to cable damage. He said in his written statement,

568. "Examples of congestion generally and in particular in relation to trunking are recorded in the following letters:

569. (1) Letter from BB to LM dated 6 October, 1989,

570. (2) Letter from BB to LM dated 30 January 1990,

571. (3) Letter from BB to LM dated 16 August 1991."

572. In cross-examination he accepted that (1) related to heavy cables running on trays from a transformer to a riser and bears no relationship to the trunking whatsoever; (2) related to telecom installation in risers, and again had nothing to do with this action, and (3) was a letter in which BB said that they were waiting for the delivery of relief trunking to allow progress to continue, and was obviously not an example of trunking being overloaded.

333 The policy operated by PSA and SVM in relation to the granting of payment for relief trunking, when taken with the approval of the sample by SVM, caused friction with BB who were deeply cost conscious throughout, but it did not cause cable damage. No doubt BB were encouraged by the policy to go to the limit in cable capacity, but they were quite capable of taking a firm line and they would not have meekly complied with a direction to install more cables than could be installed without damage. In any event, all the indications are that the widespread cable damage was due to some cause quite independent of the T pieces.

334 If cramming too many cables into the reduced CSA of the T pieces was the cause of any part of the cable damage, one would expect that the surveys which related cable damage to cable density would show damage in trunking where there were more cables than ought to have been installed in trunking of 100x75mm. Appendix 12 shows for trunking of 100x75 a trunking factor of 3189, which permits a weighted (weighted to allow for the fact that a very few cables were more than 2.5mm) population of 259 cables. The maximum population found to have damage on the K&D inspections and the BB reinspections was 261 cables, an item which appears in extreme isolation at the top right hand corner of the K&D scattergram to which I have referred: there was no other item of damage on that scattergram with a cable population anything approaching 261.

335 When the matter of cable population and calculation of trunking factors was under discussion in 1990, neither BB nor LM suggested that without relief trunking damage might be caused. What LM said was that the cables "will be difficult to maintain and service in the future". In fact, as can be seen from BB's letter of 6 February, 1990 the problem almost certainly arose from poor cable dressing: "We had great difficulty in fitting the trunking lids despite pulling the cables back ... We then had to pull all the cables out, sort into circuits and reinstall with the new circuits before the lids could be fitted".

336 BB were themselves under contractual obligation to comply with the IEE Regulations, and as the actual evidence disclosed, they certainly did not "cram in" cables at SVM's behest. So much appeared from the evidence of Mr Gordon:

573. "Q: And BB would not permit Mr Sworder or Mr Smith of SVM, or anybody else within SVM, to cause them to cram cabling in, contrary to good sense, would they?

A: Indeed not". ....

574. "Q: ... electricians simply should not wire the circuits which are already heavily congested if they think that is not appropriate?

575. A: I would agree with that statement."

576. In re-examination, counsel for DNH sought to shift Mr. Gordon from that position but he became more emphatic:

577. "Q. What about those areas where relief trunking was refused in the first instance and you were told that there was sufficient capacity?

578. A. I honestly cannot remember.

579. Q. You do not know what would then happen?

580. A. The cables -- we would not install cables that -- to an installation that may cause damage. We would have left them coiled until common sense prevailed.

581. Q. If you were then told by the designer that there was enough capacity and the cables should be inserted in this particular trunking, what would happen?

582. A. I cannot think of an example where that happened, to be honest.

583. Q. You do not recall any such instance?

A. I cannot. Sorry."

337 Those answers given by Mr. Gordon disposed of the suggestions that the reduced CSA under the bridges in the T pieces caused cable damage.

338 Both Mr. Griffiths and Mr. Laing regarded it as entirely normal and in accordance with good practice that BB should be told, as they were, that if local overloading were foreseen, appropriate measures could be taken. When it was suggested to Mr. Griffiths that it would be an abnegation of the design function by SVM to rely on the electrician to warn of overloading, he replied that it would be normal for BB's own design office to warn of such matters.

339 If overloading of trunking had caused cable damage, one would have expected that, when BB came to make proposals for remedial work in 1993, among BB's proposals would be the redesign of trunking so that greater trunking capacity would be provided. That was not the case. In BB's Method Statement of 2 July, 1993 the overwhelming majority of the work was "renew the wiring within the existing trunking". There were 4 areas or "loads", including BZ5 where there was some redesign: those areas amounted to no more than 3-4% of the whole and as was made clear by the evidence of both Mr. Sworder and Mr. Griffiths were not typical.

340 Generally, overloading did not occur. SVM's approval of the sample might, if events had turned out otherwise, have led to overloading, but in the event it did not and no cable damage was caused by it.

341 Finally under this heading, I return to the suggestion made by Mr. Pardey in his letter of 22 June, 1997 that SVM in their loading of the trunking did not allow for future development of the services to the Library. In that letter, from which I have already quoted, he wrote,

584. " I have no doubt that SVM will be able to demonstrate to their own satisfaction that the cable duct is adequately sized for the number of cables which have been placed in it. But there is also no doubt that there are many cable ducts which are full, and that before the building has even opened, let alone operated for a hundred years. That is poor design. SVM may well need to contribute to the cost of the solution."

342 The answer to that criticism was given by Mr. Smith in evidence. He said, and I accept, that in the course of installation when the loading of the trunking was under discussion, he was instructed that as the building was a Library with fairly constant needs and not an office block, he should disregard the possibility of future changes and consider only present needs. In any event, Mr. Pardey's criticism has no bearing on cable damage.

ROUTES OF CABLES - LONG CABLES - COMPLEX TRUNKING

343 DNH complain that the cable lengths were too long. Much detailed evidence has been given on this subject. It must not be forgotten that the length of cables in this case is only relevant if it contributed to cable damage. Unnecessary length might give rise to unnecessary cost of materials or labour or to unacceptable reduction in current, but neither is in issue in this case. If proper care is taken, there should be no more risk of damage with a long cable than a short cable. It is only if a cable is pulled through trunking or through a restricted space that there is a greater risk of friction burns and of cuts and abrasions. So the length of the cables is an irrelevance, but I shall deal with it briefly.

344 The length of the cables is determined by the distance between the risers and the point at which current is to be used, taking account of obstructions by features of the building on the way. The position of the risers is determined by the design of the building. Sometimes the requirements of the use dictate that the point is not served by the nearest riser but by one more distant. I saw one particular example of that in an area pointed out to me on a view and demonstrated in court by a drawing. Quite apart from that sort of consideration, because the floor areas are large and the number of risers necessarily limited, some cables had to be long.

345 It is worth noting that Mr. Housam said that as a general rule, the final details of routes for conduit and trunking are frequently left for the contractor to determine by way of installation drawings.

346 Some of the criticism of long cables made by witnesses was irrelevant to this action. For example, criticism was made by more than one witness of a long cable going from Basement 1 to Level 5, which seems to be the one example of a cable of 300 metres in length. That cable is irrelevant because it was in a Riser, and no criticism is made in this action of the design in relation to cable damage in Risers.

347 What is regarded as too long a cable is difficult to discern from the plaintiffs' case but the most reliable guide is the statement of Mr. Cross that he would not expect cable lengths to exceed 100 metres.

348 Mr. Griffiths and Mr. Laing on behalf of SVM have made a careful and detailed analysis of the evidence. That analysis shows that the average length of cables is about 70m and 85% are less than 100m long, 14% are in the bracket between 100 and 199m, and 1.15% are longer. Criticisms were made of that analysis which I find to be unsubstantiated and no other analysis of lengths was put forward by DNH.

349 Mr. Griffiths also analysed the average length of cables damaged and found that overwhelmingly the average length of cables damaged fell in the bracket between 30-120 metres with only a handful in the bracket 120-160.

350 Mr. Griffiths summarised his conclusions regarding cable density and cable length as follows:

585. "The plaintiff states that the Cable Schedule lists all of the cables where he alleges that the damage is SVM's fault.

586. 7 of the 10 categories of cable listed in the Amended Statement of Claim are absent from the Cable Schedule, presumably because the plaintiff now realises that BB caused the damage to them.

587. The data in the Cable Schedules demonstrate that the plaintiff's principal allegations against the SVM design, (borrowed from the rejected BB claim in 1993), regarding the number of cables in the trunking, and their length, are wrong.

588. The data demonstrate a random incidence of cable damage, which is consistent with these remaining 3 categories of cables also having been damaged as the result of bad workmanship."

351 Evidence of impression of lengths was given by Mr. Derek Dyason, an electrician who worked at the Library from 1992 to 1995. He was one of the few witnesses who had worked as an electrician during installation rather than later. He said that some cable runs were 200 metres in length and in his oral evidence he said that 200m was long in comparison with other jobs on which he worked and that the ordinary length was about 80 to 100m. Mr. Fetigan said that there were often very long cable lengths of up to 200 metres and on average the cable lengths he had encountered on other projects had been up to 150 metres.

352 The evidence did not support any suggestion that damage seen was related to cable length. Short cables were as likely to be damaged as long ones. Moreover,it was not shown that short cables were more likely to be damaged by the passage of long cables over them save that if an electrician wrongly pulled a cable carelessly and continuously he would more readily create friction heat with a long cable than with a short one.

353 BB also complain that the trunking was too complex with too many bends tees and sets. Bends tees and sets were necessary because cables had to be led round corners and divide to go off in different directions, and go over and under obstructions such as air conditioning ducts and other services. It is difficult to see how those complications could have been avoided.

354 BB's own complaint shows that any damage caused in negotiating bends tees and sets was caused by their own bad workmanship. In their June, 1993 Submission, BB wrote:

"The substantial increase in the number of changes and direction, coupled with the lid-down trunking design requirement result in a similar substantial increase in the instances of cables having to be drawn through bends, tees and sets".

589. To that, Mr. Chavner replied in the written response of LM:

"We remind all parties that cables have only to be drawn through tee sections and fire walls. BB state they pulled cables around bends and sets. Note: bends

and sets have removable covers so cables do not have to be pulled around these units. It is also normal practice to support these cables in these areas with

wood packing pieces or similar methods."

590. If BB were drawing, or more probably on the evidence pulling, cables through bends and sets that was bad and dangerous practice. Cables should have been laid in the bends and sets with the lids off and then no damage would have been caused. Even in the case of the Tees, it was only in the case of the two short channels under the bridges that cables had to be drawn. All the other channels in the Tees (including the 2 channels with reduced CSA) were open and cables should have been laid in them with the lids off.

355 The design of the routes of cables and trunking did not cause cable damage. The explanation for BB's complaint is here again their own bad workmanship.

FAILURE TO CO-ORDINATE DESIGN AND LATE DESIGN CHANGES

356 Breaches of the duty to co-ordinate design were alleged in sub-paragraphs (b),(c), and (d) of the particulars under paragraph 15 of the Statement of Claim as follows:

591. "(b) failing to provide BB with adequate information or adequately detailed working drawings, and/or failing to integrate the design with the building, other services and the structure, with the result that much of the drawing work carried out and subsequent cable trunking installation was rendered useless and had to be redone;

592. (c) failing to provide co-ordinated working drawings; the defendant failed to provide BB with design information which was adequate and in a co-ordinated or timely fashion with the result that numerous changes had to be made in the trunking routes and circuitry, and with the result that relief trunking had to be installed and cables had to be removed from trunking and re-installed and further cables installed; sample particulars of instructions to alter, modify or re-route cable trunking are set out in Appendix A hereto: sample particulars of instructions to install relief trunking are set out in Appendix B;

593. (d) Frequently revising requirements relating to trunking and cabling with the result that trunking had to be re-routed, and routes became over complicated and large numbers of bends and sets be introduced, and the trunking became overcongested with cabling; cables already installed had to be removed and re-installed."

357 These allegations, like all the other allegations in this action, are only relevant to the extent that they are founded upon a duty to avoid cable damage and to breaches of such duties which caused cable damage.

358 I heard a great deal of conflicting evidence about the time taken for SVM to deliver drawings and to consider drawings submitted by BB, about the degree of detail to which SVM's drawings ought to have condescended (including the meaning of "installation drawings") and the effect of that on the amount of work to be done by BB's drawing office, about changes in design whether originating with changes from the architect or the failure of SVM to foresee difficulties or other causes, about clashes in services and whether those were caused by breaches of duty by Haden Young in installing trunking, about the large number of MCIs issued and the possible reasons for them, and about the deep dissatisfaction of DNH with the efforts of LM to co-ordinate the design work, expressed by Mr. Honer in particular in very strong terms in a letter dated 22 July, 1988 and at other times. No doubt many of those matters contributed to the very severe delays on the project, and they may have caused disruption and additional expense to BB (for much of which they were paid substantial sums), but they are irrelevant to this action unless the delays sprang from damage to cables. Accordingly, it is unnecessary for me to consider who, if anyone, was at fault in these matters.

359 The allegation in particular (b) above is irrelevant. If cable trunking had to be redone on account of failure to integrate the design, it was redone before cables were installed and no cable damage could possibly have resulted. Any delays or extra expense arising are irrelevant to this action.

360 It appears from the pleading and from the plaintiffs' case at the trial that the causative links alleged between cable damage and alleged failures in co-ordination of design and design changes are:

594. (1) Cables had to be removed from trunking and re-installed and further cables installed;

595. (2) Routes became over complicated and large numbers of bends and sets had to be introduced; and

596. (3) The trunking became overcongested with cabling.

361 I have already dealt with and dismissed the alleged links (2) and (3).

362 As to (1), if good workmanship was employed, cables could be removed and reinstalled (if that was what was done) without damage just as they could have been installed without damage in the first place, though additional work on the cables would give further opportunities for damage from bad workmanship. What occasioned additional work is therefore not a cause of damage. The additional work simply provided the occasion upon which damage was caused by bad workmanship.

597. "...an event is not to be regarded in law as causative if it does no more than provide the occasion for the result complained of ..." Per Sir Thomas Bingham M.R., Banque Bruxelles v. Eagle Star at page 406.

363 A commonsense approach to causation in relation to the allegation by BB that late design changes caused cable damage was given by Mr. Chavner in his letter dated 22 March, 1993 in answer to the claim letter:

598. "With respect to the late design changes resulting in an increase in volume of circuits, we again comment that damage would not be caused because of volume only, but it is down to the method of installation."

599. What Mr. Chavner had previously written about installation in the same letter was:

600. "Cables should be laid alongside the trunking and lifted and pushed up into the trunking and held in place with retaining clips. When pulling in extra cables this can also be installed as above after the existing cables are supported in the trunking with suitable packing pieces. ANY GOOD ELECTRICIAN would do this automatically."

601. In his oral evidence, Mr. Chavner said that he felt this comment very strongly. He also said that he still felt that an increase in the volume of circuits by design changes would not cause damage: it was down to the method of installation. To that he added one qualification. It appeared from the evidence that some cables were added to trunking after the lids had been put on. It is his view (which from all the evidence I find is correct) that to insert cables in trunking by pulling them through when the trunking was lidded was bad workmanship. He said that if cables were pulled through trunking when the trunking was lidded [not "loaded" as appears in the transcript] that would increase the risk a very great deal.

364 Mr. Chavner's evidence on this point is supported by the evidence of the experts called on behalf of SVM and I accept it.

365 Lack of co-ordination and design changes did not cause cable damage.

366 It is accordingly not necessary to consider the lengthy evidence and debate whether and to what extent any of the matters canvassed were due to some fault on the part of SVM rather than due to changes forced upon them by the changes in the overall design or to failures in co-ordination on the part of LM.

FAILURE TO REVIEW THE DESIGN

367 It was alleged that SVM ought to have reviewed the design as the works were in progress to take account of difficulties. Quite apart from the fact that that allegation does not sit well with complaints of design changes, it is not clear to me what further changes in design could have been made.

  1. The trunking was installed first. When cables began to be installed in the trunking there quickly came a time when it was impractical to remove extensive lengths of trunking and replace them with other trunking. There were some changes of route and there was some relief trunking. SVM have been criticised on the basis that those changes of route were made and relief trunking installed at the behest of BB rather than SVM. It may be that if Mr. Smith had had more experience, and if he had not thought that the restricted CSA in the T pieces was wholly the fault of BB, he would have taken a greater initiative in those matters. But whether that criticism be well or ill founded is not to the point. Any fault on the part of SVM in this regard (if there were any) resulted only in disruption and extra cost to BB and did not cause cable damage.

CRITICISMS OF SUPERVISION

369 SVM's key duty with regard to is set out in PASC Duty 48 which provides that SVM were to:

602. "Make site visits of inspection to ensure that the Works are being properly supervised and executed in accordance with the design and specifications, and otherwise to safeguard good engineering practice."

370 The duty is a duty to make site visits of inspection, not a duty to maintain a site presence, though they did in fact maintain a site presence throughout. Moreover, it is not a duty to provide workface supervision, it is a duty to ensure that the works are being properly supervised, that duty existing in the context that others have a duty to supervise.

371 That duty involved making site visits of inspection in sufficient number and extent to see whether the system set up by DNH was achieving the following results -

603. - That the Works were being properly supervised;

604. - That the Works were being executed in accordance with the design and specification; and

605. - That good engineering practice was being employed in the execution of the Works.

372 What number and type of inspections would have amounted to "sufficient number and extent"? Does a comparison between what SVM did do with what they ought to have done show that they did not do enough? The plaintiffs do not set out to give answers to those questions in making their case against SVM. The plaintiffs say, on the assumption that you, SVM, prove the bad workmanship alleged, you obviously did not do enough or you would have stopped it: the proof of the pudding is in the eating. That broad approach is in some cases the right approach. I have to ask myself whether it is the right approach in the circumstances of this case.

373 In the circumstances of this case, I do not find that the broad approach adopted by DNH demonstrates liability on the part of SVM. Firstly, it assumes a level of duty far higher than the duty which I have found to be owed by SVM. Secondly, it fails to recognise what was done by SVM. Thirdly, it fails to recognise the absence of any power vested in SVM to enforce improvements where deficiencies were seen.

374 SVM could have done more by way of site visits in the sense that consultants always can do more. But if they had done more and found more faults, the evidence is that it would have made no difference. As a result of reports (to which I have already referred) from SVM and PSA and Mr. Tooley of the CoWs and also from LM, the SO was aware of

606. (a) Sharp edges in the trunking,

607. (b) Inadequacies in BB's workforce;

608. (c) BB leaving part completed work unprotected;

609. (d) BB pulling cables instead of laying them in the trunking;

610. (e) Inadequacies in LM's supervision on the electrical side.

375 Throughout 1989 and 1991, SVM carried out irregular site inspections. SVM reported the results of those meetings to LM, but their reports were badly received. LM's response was that the works were currently unfinished and LM said that SVM should not inspect until they were finished. However, SVM did continue with those inspections and made reports to the SO and LM. SVM also made numerous visits for a variety of reasons. Each month before the SO's meeting, there was a general tour of the site with PSA, SO, and LM. There were also visits by individuals to discuss aspects of the work with BB or LM. Mr. Jim Tracey, BB's Site Supervisor and later Construction Manager spoke of many site visits by Mr. Mark Smith or one of his colleagues from SVM, usually in company with LM on occasions which were not recorded. Mr. Hayward, a BB electrician, also spoke of such visits. On those visits, some matters were mentioned to BB and LM informally, and others were reported formally by Memorandum. SVM also attended what were known as "benchmark inspections" which set the standards. Mr. Roger Hopkins, LM's Construction Manager, said that SVM were present at benchmark inspections and on other occasions. Counsel for DNH submitted that the written reports of inspections show a low level of frequency of inspection, but there were many more visits than were recorded in the documents to which he referred.

376 SVM's duties included attendance at the regular meetings called by the SO and others as a matter of routine, and they prepared themselves for those meetings by site walkabouts amongst other preparations.

377 In addition to their other duties, SVM provided a Resident Engineer, known as MRE, and his staff to act for and be answerable to the SO. That team was on site.

378 In addition to "visits", there were formal inspections. The normal routine adopted for inspection during the course of construction was as follows:

611. - BB's electricians did the work under the supervision of BB's foremen

612. - LM should also have provided another layer of workface supervision

613. - BB inspect the work and when satisfied offer to LM for inspection

614. - LM inspect and (usually) hand back to BB with a list of snags

615. - BB offer again to LM for inspection

616. - LM, when satisfied, offer for "Preliminary Inspection" to SVM and (when they had been set up) LQMA

617. - When Preliminary Inspection satisfied, offer to SO and BL for "Joint Inspection" followed by

618. - Acceptance Inspection.

619. Cable damage of the sort which gave so much trouble was very difficult to detect on formal inspections. It was detectable by the electrician in the course of the work. Evidence to that effect was given by Mr. Sworder, Mr. Carver, Mr. Laycock, Mr. Hussey, Mr. Nuttall, Mr. Chavner, Mr. Nicholls and others. Mr. Nuttall, who worked for LM at BL successively as Section Manager in the Basement, Construction Manager, Project Manager, and Operations Director, gave evidence that before the end of 1992, the formal inspection of cabling followed the industry norm which consisted of observing the cables in situ in the trunking with slight movement of the cables. He said, and he was in agreement with the other evidence, that tactile inspections are not the industry norm at the formal inspections. After the scale of the problem became apparent, much more detailed and time consuming inspections were undertaken with all the lids taken off and the power switched off so that tactile inspections could be undertaken. Mr. Nuttall said that without a tactile inspection it was very difficult to see the damage. He did not suggest that SVM ought to have been aware of the cable damage before the end of 1992. To switch the power off would usually cause considerable disruption to other trades.

379 The additional duties to inspect under PASC Duties 59 and 60, to which DNH referred were duties at the Construction Completion Stage, which was not reached in the relevant period.

380 If SVM had carried out more systematic periodic inspections at the workface (in addition to the formal inspections) of how the work was being carried out, the SO might have been given reports by SVM in some cases earlier than he did in fact receive them. On the other hand, on the occasion of such workface inspections, it would have been natural for the bad workmen to have eschewed their bad practices for the purpose of the inspection. The arrival of representatives of the consultant engineer at a particular point on a 26 acre site would not go unnoticed.

381 As early as 1988, the SO was extremely dissatisfied with LM's supervision. But events showed that even when the SO had information of things going wrong, over a long period he did not, and perhaps could not, so arrange matters that there was an improvement until in October, 1991 he rearranged matters, withdrew the PSA CoWs and substituted the LMQA (Laing Management Quality Assurance) teams, known as the "ferrets", who set about compiling enormous lists of "snags", not limited to cable damage. That reorganisation was not the result of BB suddenly revealing previously hidden cable damage; it was the result of the SO being told over a lengthy period of time that the works were not being properly supervised. In other words, the SO at the material times knew what SVM are criticised for not telling him. If the proof of the pudding is in the eating, the proof goes in favour of SVM, not against SVM.

382 I cannot see that anything more done by SVM could have made any effective difference to the situation.

383 The performance required of SVM and accepted by DNH did not place on SVM a responsibility to supervise which was the same as and concurrent with the supervisory duties of LM and BB and the SO. That is shown by the PSA "Project Implementation Plan" dated 24 August, 1989, Mr. Housam's PSA document dated 22 October, 1991 headed "British Library - Work Breakdown Structure" defining responsibilities, and by the evidence of Mr. Honer:

620. " ... not all parties had the same duty, and the primary duty for supervision was BB's and the next duty, almost indivisible, was LM's. They were required to supervise, to oversee the execution of the work on a daily basis, if necessary, whereas SVM and the architects and the like, carry out inspections. They examine the work periodically, and from all the paper that flowed from SVM, through me, to the contractor, I was satisfied that they were carrying out those duties."

621. " ... when one compares it [i.e. PASC 48] with the responsibility that should have been taken by BB and LM. That is the comparison I am trying to make. That is what it was on site. I was there for 14 years. That is the way it was, not just on the electrical contract, but on all the other 180".

622. "It is inconceivable to me that the PSA set this up to place the same responsibilities on BB, on LM, and on SVM and on the SO. It does not make any sense. It did not happen like that".

623. "Q. What then, as you recall it, was the rationale or thinking behind the subsequent decision to remove them? [viz. the CoWs] A. To strengthen the role of LM, the management contractor, in the supervision of the works so that there was no ambiguity as to who was responsible".

624. " ... LM and the works contractors were those responsible for day-to-day supervision and the consultants were responsible for the supervision of the management contractor and the periodic inspection of the works. That is what I think was required and that is certainly what happened."

384 The dissatisfaction of the SO (first Mr. Honer and then Mr. Addison) with the supervision provided by LM particularly in relation to electrical work was expressed on numerous occasions both before the physical installation work began and afterwards. It is plain from the records that SVM were discussing this aspect of the project with the SO. The history of the work and reorganisations of the supervisory system do not reveal dissatisfaction with SVM, indeed the contrary is true.

385 22 October, 1987, a letter from Mr. Honer to PSA complaining of LM in strong terms;

"Construction Supervision/Quality Control".

"The standard of management and supervision of the construction works gives cause for concern. The problem derives principally from the frequent changes in the management contractor's staff" ....

"LM are currently only employing three Services Managers, one of whom is leaving at the end of October1987. An increase in the numbers employed to supervise these works will shortly be necessary. Furthermore, LM have yet to nominate the 'dedicated team', which it is agreed they should employ to examine the services contractor's drawings."

386 22 July, 1988, a letter from Mr. Honer to Mr. Ron Hopkins of PSA in which he accused Mr. Ron Hopkins of

625. "cynical disregard of your responsibilities as Project Director, particularly bearing in mind the disastrous state of affairs that exists on site at present.....

626. LM are right to be concerned at the prospects for M&E's services installations but your statements on the subject are also inaccurate, misleading and misdirected."

627. Mr. Honer then complained that although the electrical contract had been let on 23 May, 1988, he had received no works programme for it to date from LM. He then continued:

628. "To allege therefore that the major cause for loss of progress is the lack of M & E installation work is outrageous, particularly as this statement is followed by an unjustified criticism of the design team concerning the time taken by them in responding to contractor's drawings with no reference whatsoever to

629. the non- or late submission of drawings by the M&E works contractors which constitute a prerequisite to manufacture and installation."

630. Mr. Honer then referred to the then M&E services manager, Mr Les Horton, who, he said appeared to be unaware of the delays in the submission of information by the contractor. Mr. Honer then wrote,

631. "Les Horton seems to have no overall grasp of the situation...

632. LM does not imbue me or others attending this meeting with any confidence."

387 17th August 1988, SO's Meeting at which were present, SO, LM, SVM, CoW. Mr Honer complained of delay in the contractors' providing drawings through LM to the design team. LM reported the appointment of additional staff but the appointment of their Electrical Services Manager was still outstanding. This was some 2 to 3 months after the work of installation had begun, and the post remained vacant for some time thereafter.

388 28 October, 1988, Memorandum from Mr. Honer to LM with copies to SVM and others. There was still no M&E supervision from LM. Mr. Honer wrote:

633. "I am concerned at the apparent absence of M&E supervisory staff employed by LM. I believe this is having a detrimental effect on detailed coordination of service installations and ultimately on progress. Please advise me of the action you are taking to rectify this situation."

634. SVM were at the meeting, what more could they have done to add to Mr. Honer's efforts?

389 9 November, 1988, memorandum from Mr. Honer to LM. There had been a dispute between Mr. Honer and LM about the extent of their duties to supervise. Mr. Honer shows that he is still aware that LM still have not employed enough M&E staff. He wrote:

635. " LM appreciate they have a contractual responsibility to supervise as well as to monitor the construction of the works. LM undertake to ensure that they employ an appropriate number of engineers to fulfil these responsibilities, particularly as the volume of work increases."

390 SO's meeting of 7 June, 1989. SVM and LM and others were present, as at all the SO's meetings. It was recorded:

636. "LM continued to seek additional engineers."

391 SO's meeting of 7 July, 1989, again,

637. "LM continue to seek additional engineers."

Then

638. "The COW expressed considerable concern regarding the loss of continuity in LMC supervisory staff. He believes this is having a detrimental effect in

639. achieving the standards of workmanship required. LMC to consider."

640. At this point, a year after the work of installation had begun and cable damage is presumably being caused by BB, still LM do not have enough M&E staff.

392 SO's meeting of 2 August, 1989, it was recorded:

641. "Additional electrical services manager being sought"

[by LM]

393 25 September, 1989 memorandum from LM to Mr. Honer:

"On two occasions, at your most recent monthly meeting, you stated that you had lost confidence in LM in their control of the electrical contractor."

642. Mr. Housam in evidence accepted that Mr. Honer's loss of confidence in LM's ability to control BB was a general topic.

394 SO's meeting of 4 October, 1989,

"The SO expressed concern regarding the changes in LM supervisory staff, but LM maintain they are increasing such staff and not losing them. Clerk of Works, however, referred to the departure of a Mr Will Wood and a Mr Vince."

395 16 March, 1990, report by SVM to the SO on a claim by BB for payment for general delay and disruption. SVM wrote:

"From discussions with LM, Balfours and other team members, it is apparent that there is something seriously wrong with the management of this project. There appears to be no attempt by LM to plan and coordinate the installations of the various services contractors. This has resulted in a great deal of frustration on the part of Balfours who are unable to work to their own approved drawings due to positional incompatibility with mechanical drawings."

643. Mr. Housam agreed that from then on SVM, from time to time, expressed their own lack of confidence in LM's ability, as far as the services side of things was concerned.

396 17 July, 1990, memorandum from Mr. Honer to Mr. Brown of PSA. Mr. Honer wrote,

"LMC have acted largely as little more than postmen in the handling of drawings between contractors and the design team.

.....I have on more than one occasion had cause to express concern regarding the performance of LMC's Construction Manager for the 1AA superstructure and the 1AA basements (Mr Roger Hopkins)

....At the beginning of 1988, Brian Frost [Deputy SO] and I recommended that he be replaced but you felt you could not support this. In the event I met with Ron Hopkins, LM Project Director, and handed him a two page list of 'incidents' which occurred in 1987/88, and asked that he look into the matters referred to, and that he take appropriate action. .....

It has long since been recognised that LM's management of the M&E services is far weaker than that of structural engineering and building works. I believe they only have one M&E engineer on their board of directors, Les Wallis, whose performance was so abysmal that you requested that he be debarred from all further association with this project. In my opinion, Ron Johnson and Derek Chavner do an admirable job, but an effective liaison between them and LM's construction managers is frequently not apparent".

644. Mr. Housam agreed that Mr. Wallis did come and leave site and then go back again.

397 12 December, 1990, memorandum from Mr. Honer to PSA. In the course of the memorandum, Mr. Honer mentioned a number of matters requiring attention and then,

645. "7. The need to increase LM's supervision of the electrical works on site."

398 March, 1991, PSA issue "Handover Procedural Guide". That guide was issued in preparation for the "First Phase Handover". The first half of 1991 was dominated by preparations for the first handover, which was to be a handover of B4 and the Meeting Rooms, staff lounge, and loading dock. The Guide made it plain that SVM's role was restricted to a final inspection of the works after LM had indicated that they were ready. So much had already been stated by Mr. Ridpath, the PSA Liaison Officer, at Monthly Meetings.

399 25 June, 1991, the scheduled date for the handover, which was not met. In early 1991, SVM asked LM for a snagging list for the handover area. In August they received a very short list which they considered inadequate. SVM and CSJW carried out their own inspections without opening up, and found many more snags. There was also trouble with the bookshelving (for which SVM were not responsible). The handover was abandoned. This led to a policy known as "Get it right first time" and to the withdrawal of the COWs, the formation of the LMQA teams, the ferrets. The LMQA teams, led by Mr.Canavan, formed an additional layer of LM Quality Assurance responsible for inspection during the work, but not for supervision.

400 3 October, 1991, PSA Quarterly Review meeting. Mr. Addison (now the SO) reported to the meeting an important development in site control which he had made on taking over from Mr. Honer.

646. "The Clerk of Works were renamed technical assistants on 2 October, 1991. They no longer carry out the Clerk of Works functions which were incompatible with a construction management contract. As Clerk of Works they have contributed substantially to date and have been very supportive of the consultants and SO.

647. LM have the contractual responsibility to snag areas, produce the snagging list and assure themselves that ares are ready for offering up for formal inspection. These formal inspections will in future be joint inspections with the client.

648. The Clerk of Works became involved in carrying out their traditional duties because the previous SO considered it necessary. Both I and the consultants are concerned about LM's control and it may be necessary to re-introduce the role.

CONCLUSIONS

649. a) Resources are inadequate for meeting current targets.

650. b) Quality management must be separated from production management if there is to be an improvement in methodology and quality control.

c) The redefining of the role of the technical assistants (former COW) has removed any possibility of doubt concerning LM's role on site control."

401 At the same meeting on 3 October, 1991, there were comments which are extremely relevant to the delay claim in this action. It was reported that the programme was about 12 weeks behind and work was slipping progressively. The minute of that meeting relates:

651. "4.6 The programme was about 12 weeks behind, and work was slipping progressively behind the target programme. There was serious doubt about meeting handovers in December, 1991 and June 1992. Mr. Pardey asked for an explanation of the steps which were being taken to remedy the situation. He wondered whether there were enough people working on site and whether there was a clear idea as to how many there should be. He said that most planning systems allowed for holidays. Mr. Brown explained that the situation was almost exclusively due to the electrical contractor's unilateral action in reducing his labour force and the knock-on effects on the project generally. Mr. Fisher (of LM) said that this was blackmail on the part of the electrical contractor in the context of his claim. Mr. Pardey agreed to consider a solution to the problem based on financial arrangements to secure the good will of contractors, but he required PSA to supply him with information regarding the options."

652. BB had indeed, in breach of contract, withdrawn labour from site over a period before this time to pressure DNH into accepting claims unconnected with cable damage then being made for extra payment. (At the previous meeting on 3 September, 1991, LM had reported a shortage of about 30 electricians, and the moving of electricans to the Channel Tunnel had been discussed). The 3 October, 1991 meeting continued by Mr. Pardey indicating that he might buy peace from BB by making a payment to them. Readiness to give in to blackmail, predictably, encouraged more blackmail by BB from mid-1993 onwards. No amount of supervision from either LM or SVM could have prevented that period of delay of at least 12 weeks, or later periods of delay resulting from BB's obstructive tactics. Those delays were not caused by cable damage the subject of this action: they were the result of deliberate breaches of contract by BB which the plaintiffs failed to stop.

402 9 October, 1991, SO's Meeting at which SVM were, as usual, represented. The note of the meeting includes the following:

653. "Mr. Addison explained the decision made on the future use of COW.

654. The COW will no longer perform the traditional COW services. They will act as technical assistants/advisors to the SO, acting as his eyes and ears. They will not be used to snag works as such or to sign off any part of the works. They will however, bring to the SO/DT/LM attention any areas of work where they see deficiencies occurring.

655. Mr. Addison stated that LM's contract includes for the traditional clerk of works duties in relation to quality control, snagging etc. However, both LM and the consultants will be able to ask the COW for comments as and when appropriate.

It will be LM's responsibility to perform all of the initial snagging/inspections and prepare the formal lists for submission to the SO who will then arrange for the formal joint inspections. LM will be expected to perform their own preliminary snagging/inspections to ensure that areas are ready for the joint inspections to take place."

656. Mr.Honer expressed concern that his successor's reorganisation had been made without consultation with the architects and Mr. Addison replied that in higher management's view, LM are responsible for supervision.

403 11 October, 1991, Memorandum from Mr. Sworder of SVM to Mr. Addison. Mr. Sworder also expressed concern that the withdrawal of the COW had been made without consultation with SVM. He wrote:

657. "As this action has not been accompanied by a comparable increase in resources elsewhere it is now our belief that the supervision of the M&E services is not sufficient to meet the proper expectations of the client."

404 13 October, 1991, memorandum from SVM to SO. Mr. Sworder again expressed his concern:

658. "We are aware that LM have now appointed a QA Manager (D. Canavan) but there has been no corresponding increase in resources regarding the M&E services and we remain seriously concerned that the supervision of the works with respect to the quality of the M&E works remains inadequate."

405 22 October, 1991, Mr. Housam issued his "Work Breakdown Structure" to which I have referred elsewhere, which stressed the sole responsibility of LM for supervision.

406 At SO's meetings from November, 1991 to February, 1992 repeated concern was expressed about increasing delays due to BB's labour shortages. An increase of 60 men was achieved in November, 1991 and a further 30 in February, 1992, which was still not enough. Moreover, it was Mr. Chavner's view that the increase in the number of electricians was not matched by a commensurate number of BB supervisors.

407 1 April, 1992, SO's meeting. Mr. Honer expressed concern that two of the technical assistants (formerly COW) had been dismissed. Mr Addison responded that,

"If LM perform to their contract, then PSA do not see the need for so many SO technical representatives. He further commented that OAL had agreed to pay for LM's QA section but expected compensated savings to be made in the SO's staff."

408 December, 1991, PSA issue "Guide to Inspection and Handover Procedures". That Guide required that the initiative for inspections for handovers was to lie with LM and no requirement was made for SVM even to attend the inspections.

409 29 June, 1992 the SMACS (Snagging Management and Control System) system of detailed snagging, manned by the LMQA team employed by LM went into operation. That system threw up enormous lists of snags numbering tens of thousands. It was contended by BB that many of those snags were not truly defects but merely insubstantial faults: those became known as the "contentious defects" and were indeed a great source of contention.

410 1 August, 1992, LM appointed Mr. Derek Mills, a Chartered Electrical Engineer, as Site Wide Electrical Manager. He was the first Chartered Electrical Engineer to be appointed to LM's staff at the Library. He was appointed to add, belatedly, to LM's strength on the electrical side and in the words of his statement "to approach the problem of cable damage which had been discovered towards the end of 1991". In his oral evidence he changed that from 1991 to 1992, but that was obviously wrong. He could not have been appointed to deal with cable damage which had not yet been discovered. DNH case has been that extensive cable damage was not discovered until the end of 1992 but in fact BB and LM were very concerned about the extent of cable damage found by their snagging procedures in late 1991 and early 1992. Mr. Mills' oral explanation for his appointment was:

659. "The job was running late. Balfours were one of the culpable contractors in terms of the progress of the works. They were using or perceived using some of the foxy moves that one does in terms of a contractor to give reasons why you were late; and really I was sent there to actually go head-to-head with Balfours in terms of cutting out of some these foxy moves and getting progress moving."

660. The reference to the job running late is again relevant to the delay claim. At this stage, lateness against the programme could not be attributed to time taken on remedial works.

411 In October, 1992, at the request of LM, SVM provided (as an additional service over and above their recognised contractual functions) three teams of two engineers each (one Mechanical and one Electrical) to help the process of identifying and remedying snagging items. Those teams became known as the Rapid Response Teams. The request for that additional service was another recognition of the limits on SVM's contractual duties.

412 30 October, 1992, during a preliminary inspection of cables in trunking in 1AA Levels Gantry, LM found 6 damaged cables which had been taped up to conceal damage. That discovery was recorded in a letter from LM to BB on 4 November, 1992.

413 I have gone through that history in some detail because it shows that at no point in this vital period when the question of supervision was a constant topic of discussion was it suggested that SVM were not performing their duties. I am told by counsel for SVM that there is no contemporaneous document from the relevant period criticising SVM's supervision. SVM's understanding of their function and their performance of it was accepted by DNH.

414 The concern of the PSA and the SO with regard to site supervision and the progressive inspection of the works as they proceeded, was throughout this project a concern at LM's ability on the mechanical and electrical services side.

415 I find no liability on the part of SVM in respect of supervision.

CONTRIBUTORY NEGLIGENCE AND CONTRIBUTION

416 I find no liability on the part of SVM in respect of any of the allegations made against them. It is therefore not necessary for me to make findings on contributory negligence or as to the respective contributions to be made by the Third Parties.

DAMAGES

417 Since I make no finding of liability against SVM, it is unnecessary for me to assess damages. However, in case I am found to be wrong on liability, I shall try to give what help I can on damages. Some of the matters canvassed have been unusually contentious and the parties would no doubt welcome rulings on them in any event. I should add that hearing the case on damages has helped me in reaching my conclusions on liability.

418 The damages claimed fall under two heads:

661. 1. Costs of and related to Remedial works;

2. Delay.

662. Both heads are dependent on cable damage. The claim for remedial works is a claim for the cost of replacing damaged cables and associated work. The claim for delay is framed only as a claim for delay caused by damaged cables. There is no claim for, for example, delay caused by the alleged delays in delivering drawings.

419 I have made an assessment of the cost of remedial works claimed on an assumption of a finding of liability against SVM but subject to the important proviso that upon the terms of such a finding of liability including a definition of the scope of the duties and findings as to which were breached would depend a finding that SVM were liable in respect of all or only some of the costs of remedial works. I find it impossible to do the same with the delay claim. Before assessing the damages for delay it is essential to know precisely what are the findings of liability against the paying party including the scope of the duties breached and what are the causative links between faults found and any delay. I have already drawn attention to two references in the evidence to delays which were caused by matters other than cable damage, namely, the 12 weeks delay referred to at the meeting on 3 October, 1991 (caused at least in part by BB removing their labour) and the delay mentioned by Mr. Mills as existing when he was transferred to BL in August, 1992. There are other causes of delay, including the time taken in disputes about contentious remedials and in remedying those that were accepted as defects for which BB was responsible. There were also other occasions on which BB reduced their labour. There were also many delays in doing the remedial works arising from many different causes. It is not alleged that any time lost was recovered. It is necessary to determine what delays are on the critical path. If SVM were to be found bound by all the duties alleged against them and at fault for every breach alleged against them, that would be the least difficult of many difficult situations in which to disentangle relevant from irrelevant causes of delay. But if the finding were that SVM were not at fault in any matter other than supervision, one would need to examine that finding to ascertain the extent of the duty to supervise and whether, if the faults found (whatever they may be) had not existed, all bad workmanship would have been eliminated or only some of it, or whether good supervision would only have accelerated the discovery of bad workmanship and so reduced the time taken for the execution of remedial works. Into all this, one would have to interleave consideration of the reasonableness or otherwise of the long time taken by DNH and others to decide on appropriate steps to be taken to remedy defects.

420 I therefore do not find it possible to make any contingent finding on damages for delay other than to say that I find the evidence adduced by DNH in support of that head of claim gravely lacking in contemporaneous documents which ought to have been generated as the works were done and extremely unconvincing in many respects. I seriously doubt whether any just assessment of any delay claim could be made on the inadequate evidence before me.

421 I shall do my best to make contingent findings on the damages claimed for remedial works.

DAMAGES - REMEDIAL WORKS

422 For the following reasons, in the event of a finding of liability, and subject to the correction of any arithmetical errors, the maximum total allowable for damages for remedial works would be 320,277.30 (excluding the claim in respect of fees paid to SVM). (A finding of liability against SVM would also only result in an order for payment by SVM after suitable apportionments had been made having reagrd to the respective faults of DNH, LM, and BB).

423 The formulation of the claim for remedial works has a chequered history. In the Statement of Claim in its original form, under the heading, "Particulars of loss and damage", this head of claim was simply,

663. "(a) Cost of reinstatement of damaged cables 4,061,708.00"

664. That claim was then amended to read as follows:

665. "(a) Cost of reinstatement of damaged cables 3,310,407.00. Particulars are set out in the Schedule of particulars of costs of remedial works served herewith."

666. The claim was then re-amended as follows:

667. "(a) Cost of reinstatement of damaged cables Particulars (including the cost of the earth fault protection system) are set out in the Amended Schedule of

668. particulars of costs of remedial works served herewith in the total amount of 3,881,660 but the plaintiff limits its claim under this head to 3,437,446.00"

669. The plaintiffs have thus pleaded four figures with a range of 700,000 between the extremes. The last case pleaded in the Statement of Claim is that the cost of doing the remedial work was 3,881,660 but the claim is limited to 3,437,446 which, it is alleged, DNH actually paid for the work to be done.

424 Much evidence has been directed to proof of the figure of 3,881,660 (or rather to later amendments of that figure not appearing in the Statement of Claim itself). As I understand it, that evidence is directed in part to proof of the reasonableness of the sums allegedly paid by DNH and in part to extracting from sums which were paid an assessment of proportions attributable to cable damage.

425 The claim for remedial works is divided between a substantial sum alleged to have been paid to BB by DNH and lesser sums paid to others.

426 The defendants submit that the remedial works have been done by BB at the cost of BB and DNH have not paid for those works, nor are they liable to pay for those works because no claim is made against DNH for the cost of those works.

427 BB have acknowledged that they are responsible for certain of the damage to cables and they have remedied those cables at their own cost. For other damage to cables they deny responsibility, but they have reinstated the cables.

428 DNH have forcefully and publicly denied that they have paid BB for the reinstatement of damaged cables. The most public of those statements was made to the Parliamentary Committee of Public Accounts on 29 June, 1996 in evidence given by Sir Hayden Phillips. In answers first to the Chairman of the Committee (Mr. Robert Sheldon M.P.) and then to Mr. Richard Tracey M.P. Sir Hayden made it clear that BB were not paid for rectifying their own shortcomings. Mr. Tracey asked:

670. Q: "What I am concerned about is whether any of these contractors were actually paid to rectify their own specific shortcomings? In other words, when they were in jeopardy, having constructed these faults, did you then pay them to put it right?

671. Mr. Hayden Phillips A:"No."

Q: "At all?"

672. A: "Not as far as I am aware. In relation the bookshelving, Bruynzeel put that right at their own expense. In relation to the cabling, Balfour Beatty funded the solution that we adopted, namely the automatic fuse switches at a cost of 1.5 million and they have themselves incurred extra costs of 2 million in repairs and replacement. The one area where a change was made, which was on fire protection systems, where those responsible were asked to put in a different system from the one they had installed, that had to be done at the project's expense because it was not a part of their obligation. They as far as I know are the facts of the situation."

673. The witnesses before the Committee were, as is usual, given an opportunity to correct their evidence, and there is a footnote that the witness later indicated that the figure of 1.5 million was taken from an early estimate and the actual cost of the switches and their installation was 0.4 million.

429 One of the witnesses called in this action on behalf of DNH was Mr. Edward D'Silva, a senior civil servant from DNH and Deputy Project Director of the British Library. In cross-examination, the passage quoted from Sir Hayden Phillips' evidence to the Committee was shown and read to Mr. D'Silva. He confirmed that he had briefed Sir Hayden for the hearing before the Committee and also confirmed, not surprisingly, that the answers given by Sir Hayden were true. I accept Mr. D'Silva's evidence without reservation.

430 As I understand it, the case now presented on behalf of DNH is that that denial is not now correct in the light of subsequent events. It is alleged that DNH have in fact paid BB for the reinstatement of damaged cables. I find it difficult to believe that anyone in the Department realises that that is the case presented to the Court in the name of the Department. I am satisfied on the evidence before me that the DNH public denial was correct when made and is still correct and that DNH have not paid BB for the reinstatement of cables.

431 The contemporaneous evidence before me is not complete, but it could have been made more complete if those conducting this action in the name of DNH and BB had obtained more documents from DNH and BB. Such documents as have been produced in relation to this aspect of the matter were produced with great reluctance and with protestations that they were irrelevant.

432 Over a period of years, BB formulated a claim for the cost of reinstatement of cables. DNH refused to pay it. Evidence was given by Mr. Wheatley, who acted at the time as an loss adjuster for McLarens and also gave expert evidence on behalf of DNH. Mr. Wheatley said that DLE did not include in their certificates for payments to BB any sums for remedial works to cables and none were included in the Final Account.

433 BB did, however, make a claim against insurers (the insurers who now bring this action). That claim was adjusted over a lengthy process by loss adjusters on behalf of those insurers.

434 I have not been shown the insurance policy, but it appears from Loss Adjusters' reports made by McLarens, confirmed by an answer given to me by Mr. Rothwell (DNH's Operations Director and later Project Manager) that the insured were DNH, LM, and all the Works Contractors and Sub-Contractors, including BB. Mr. Rothwell also said that DNH paid the premium. I rather doubt the accuracy of his answer as to the payment of the premium. That answer was given without notice and without reference to documents and it does not seem consistent with McLarens' reports nor with LM's duty to insure under their contract, but the fact of payment of the premium is not all-important.

435 In McLarens' Preliminary Report dated 8 February, 1994, it was reported:

674. "Management Contractors required to insure the Works on an All Risks basis in the joint names of the Employer and All Works Contractors/Sub-Contractors."

436 The claim was made by BB on an All Risks basis and was adjusted on an All Risks basis. The Loss Adjuster who adjusted the claim told me that he was concerned with all cable damage. There was no question of his trying to eliminate any cable damage caused through the fault of BB. In fact, there is an indication in a document known as Schedule B that the damage was regarded as damage caused through BB's own fault. Schedule B became an annexure to the Report given in evidence by Mr. Martin Cannon of W.S. Atkins, an expert called on behalf of DNH in support of the amount of the delay claim put forward on behalf of DNH. In an inelegant and inconvenient way, Schedule B, in amended form, has become substituted for particulars of the much amended Delay claim made by DNH. Despite amendment and re-amendment, in that Schedule, the reason stated for the delay caused to BB itself is as follows:

675. "Contractor caused own delays caused to Contractor as result of cable damage."

437 Eventually, McLarens, on behalf of the insurers paid to DNH various sums. The evidence of Miss Susan Kidd, an accountant employed by PSA was that:

676. "The DNH has received a total amount of 8,437,446.00 from insurers between September, 1995 and February, 1997. That money was paid by cheques to the DNH, of which 1,745,646 was immediately forwarded to Balfour Beatty."

438 That sum of 1,745,646 has been identified as being for remedial works to cables. I have not seen the covering letters which accompanied that money passing between McLarens and DNH nor between DNH and BB. Miss Kidd's statement was accepted in evidence without her being called so that there was no opportunity to ask her further about it. Since DNH were denying liability to BB they cannot have regarded themselves as liable to pass that money on to BB on any basis other than that it was given to them as trustees for BB. It was not DNH's money, it was BB's money to which they were entitled as one of those insured by the policy. That that is the position is confirmed by a letter sent by BB relating to an insurance payment in relation to Enhanced Protection.

439 The cost of that head of remedial works to cable damage relating to the installation of extra circuit breakers, known as Enhanced Protection, requires separate consideration. At one time, representatives of BL took the position that it was difficult to ensure by inspection that all damaged cables had been found and that the only way to ensure a damage free cable system was to replace all the cables in the Library. Such a course would have been enormously expensive in time and money, so, eventually, after much lengthy deliberation, it was decided that reinstatement of cables could be limited provided an enhanced protection system was installed. It is reasonable to include the cost of that system as part of the cost of remedial works.

440 On 9 October, 1996, BB wrote to McLarens with a copy to Mr. Rothwell of DNH as follows:

677. "Further to the telephone conversation between Messrs. A Wheatley [loss adjuster] and A.Laycock [BB's Project Director] we hereby confirm our acceptance, to the sum of 330,000 in full and final settlement, of Balfour Beatty's claim, under the project insurance policy, for Enhanced Protection at the British Library.

678. We acknowledge that an overpayment of 35,062.00 was made in respect of the damaged cables claim.

679. As all payments are made through the Department of National Heritage, by copy of this letter to Mr. Rothwell, we hereby authorise deduction from the enhanced protection claim the aforementioned overpayment leaving a balance of 294,938 payable".

680. That letter was clearly written after a conversation direct between BB and McLarens. The letter plainly (and correctly in my view) shows that BB regarded the money that was going from the insurers to DNH as BB's money and it was for BB and no one else to give a discharge for it and to authorise DNH (through Mr. Rothwell) to make a deduction from it. That letter and the payment to which it refers were sent after the evidence of Sir Hayden Phillips to the Committee of Public Accounts on 29 June, 1996. From the oral evidence of Mr. D'Silva it appears that earlier payments preceding that letter also were made by the insurers after July, 1996.

441 That DNH did not pay BB for cable damage appears from other evidence also.

442 Mr. Douglas Pearce, a Quantity Surveyor, now retired, formerly employed by DLE gave oral evidence. On behalf of DNH he made many contemporaneous negotiations with BB. I found him an extremely impressive, reliable and competent witness. He agreed a settlement with BB in March, 1993 that BB should be paid 8.025 million in respect of certain claims which they then were presenting, but which did not include cable damage. Then in December, 1994, when negotiating what became known as the Final Account, Mr. Pearce considered further claims made by BB. Those claims included 2,726,318 for "contentious remedials" (not a part of the claim made in this action), 1,502,798 for cable damage, and 255,384 for ADP cabling. In a document at the time [L(b)14/195] Mr. Pearce recorded the DNH case on those (and other) items, that being also his and DLE's case. Mr. Pearce valued the claim for contentious remedials at nil and marked against the items for cable damage and ADP cabling, "Insurance". In cross-examination he explained that by those markings he meant that those were matters to be claimed by BB from insurers under BB's insurance claim. Mr. Pearce added, "We said we would not pay this under the claim". He never changed that position, and the amount paid under the Final Account did not include anything for cable damage, either reinstatement of cables or enhanced protection.

443 Minutes of a meeting of 8 December, 1994, at which senior representatives of DNH, SVM, LM, and DLE were present record that BB were to be informed by LM that new fuse switches, "protection enhancement", were to be referred to their insurers, as they in fact were and now form a part of the claim in this action. That is, the insurers claim the cost of enhanced protection because they paid for it.

444 In April, 1995, BB submitted an insurance claim in considerable detail. The covering letter was addressed to LM because they were gathering together the insurance claims, but a copy was sent to McLarens, and it was made plain that this was an insurance claim, not a claim against DNH. In that claim document, BB included sums for remedying cables and indicated that a claim for enhanced protection would follow. They also made it plain that they, BB, had borne the cost of reinstatement of cables because the claim included a claim for financing charges to cover the costs expended.

445 The insurance claim was negotiated on behalf of BB by Messrs. Laycock, Matthews and Walker and on behalf of the insurers by Mr. Wheatley of McLarens. Mr. Rothwell said in evidence that he dealt with the insurers in the absence of BB. There was general agreement among the witnesses Messrs. Rothwell, Matthews, and Wheatley and Miss Kidd that the insurance money, though paid initially to DNH was sent straightaway to BB. The witnesses used such phrases as "routed through" DNH, "immediately forwarded" by DNH, and "made through" DNH.

446 The true position was in fact stated by Mr. D'Silva, the first witness called on behalf of DNH. Mr. D'Silva ended his cross-examination by confirming the truth of the answers given by Sir Hayden Phillips to the Parliamentary Committee. Mr. D'Silva's re-examination began as follows:

"MR SLATER: Mr D'Silva, do you know what happened after the date when Mr Hayden Phillips was giving these answers to Balfour Beatty's claim for 2 million?

A. Following that, there was an insurance claim from Balfour Beattys, which was processed through the Department, paid through the Department, and then passed on to Balfour Beatty.

Q. The Department then paid to Balfour Beatty the 2 million that they were saying they were due for this claim for work?

A. There was a figure around about that.

Q. In round figures?

A. Yes.

Q. Was that something you personally dealt with or did others deal with that?

A. The insurance claims were being dealt with by Mr Rothwell, and our role in that was to receive the cheque and then to make sure it was processed, that certain monies were passed on to Balfour Beatty and other monies were retained by the Department.

Q. So Balfours, as it were, had stood the cost during the time that the works were being carried out?

A. That is correct.

Q. They were then subsequently paid?

A. That is correct, through the insurance.

Q. It was not funded by the taxpayer?

A. No.

Q. It was funded by an insurance company?

A. That is correct.

Q. But so far as the machinery was concerned, it went through the Department to Balfours?

A. That is right."

447 Such evidence as there followed in this trial on that topic fully supported Mr. D'Silva's statement of the position. In any event, his evidence could not be openly challenged on behalf of DNH because the evidence was given on their behalf in answer to counsel acting for them.

448 I find that DNH have not paid any of their own/taxpayers' money to BB for reinstatement of cables and have suffered no loss in that regard. Money was routed through the hands of DNH to BB, but it was insurance money which BB were entitled to receive from insurers: it was not money belonging to DNH and DNH were not at any time entitled to that money. So far as DNH are concerned, BB have reinstated the cables at no cost to DNH and DNH are at no risk of liability to BB for BB's costs of reinstatement. So far as BB are concerned, on their case, they have remedied damage to cables for which they are not responsible, and the fact that they have been recompensed for that work by insurers under a contract of insurance made on an All Risks basis for their benefit does not prevent BB suing either DNH or SVM to recover the cost of that work if they can identify a cause of action. But there is no sign of BB making any such claim and they have no incentive to do so because they would have to pay the proceeds of any such claim to the insurers. If the insurers wish to recover from SVM the money which they have paid to BB for reinstatement of cables, they must do so by bringing a subrogated action in the name of BB against SVM. In that event, the cause of action, if there is one, would be totally different, there being no contract between SVM and BB. On the findings which I have made, the insurers would lose that action also.

449 I therefore disallow that part of the claim for reinstatement of cables which relates to the costs of BB, namely the sum of 1,745,646 paid by the insurers to BB. It is evident from the letter of 9 October, 1996 from BB to McLarens, which I have quoted, that that sum included the cost of enhanced cable protection.

450 If I were satisfied that anything at all were recoverable in principle for BB's costs, I would have assessed them at far lower figures than are claimed.

451 I turn now to consider the claims made by DNH for costs incurred by DNH in connection with reinstatement of cables by way of payments to persons other than BB, namely:

681. LM and Agency Staff costs

682. Consultant staff

683. Inspection teams

684. Works contractors

VAT.

LM and Agency Staff Costs

452 LM undoubtedly spent much time on cable damage repairs and employed agency staff to help them in that task among others. LM's work was mainly in supervision and recording of inspections and repairs.

453 A total of 462,634.60 is now claimed. Mr. Thain, the quantum expert called on behalf of the defendants agreed as figures only sums totalling 61,205.80.

454 Assessments have been made in very broad terms of the proportions of time spent by senior individuals and applying those proportions to LM salary rolls and related expenses such as Training Board Levy and Pensions. The claim includes sums for LM's Quality Assurance team.

455 The claim has been assessed as if it were a claim being made by LM when in fact LM has made no claim and no payment has been made to LM by DNH specifically for work done on cable repairs. I have therefore looked to see whether the amounts paid by DNH to LM have been increased as a result of work done by LM in respect of cable repairs. Under their contract, LM were entitled to be paid by DNH for the prime costs of personnel, computer service, temporary works and site management as defined in certain schedules contained within the agreement. I assume, since it has not been challenged, that the proportions of time claimed to have been spent are proportions of time which has been charged and paid for by DNH. This head of claim (like the other payments to persons other than BB) was also funded by the insurers, but unlike the BB claim it was accepted as a liabiilty og DNH.

456 This claim is based largely on the recollection of individuals long after the event and is very largely unsupported by documents. That recollection of individuals was put in evidence as hearsay and sometimes as double hearsay.

457 The absence of documents is quite remarkable since this project at the relevant times was executed very much in a "claims atmosphere".

458 The assessment of proportions of time spent is all the more complicated because not only were LM involved in the management of much other work which had nothing to do with electrical works, but also were involved in a great deal of cable related work which had nothing to do with the claim in this action. There was damage to cables other than low voltage cables in the trunking with which this action is concerned. More importantly, a great deal of time was taken up with what were known as "contentious remedials", which again are not a part of the claim in this action. Those contentious remedials were remedial works which BB were required to do as a result of the application of standards which BB contended were excessively rigorous. Taking the LMQA team as an example, it was demonstrated on behalf of SVM that between January, 1993 and March, 1994 twice as much time was spent on contentious remedials as on relevant cable remedials, and work on electrical engineering was only a part of the work of LMQA. Doing the best he could with the information available, Mr. Thain said that looking at the enormous number of snags dealt with by the LMQA team, on a generous assessment he could only assess the proportion relating to relevant cable damage at 13%.

459 Mr. Thain is a most impressive and highly qualified witness. In lengthy cross-examination he was not shown to have made errors. The strongest attack made on him was that he preferred the evidence of his own investigations to the recollection of broad assessments made by witnesses made either in evidence to me or in out of Court statements to Mr. Wheatley.

460 On the other hand, it was demonstrated that claims were put forward by Mr. Wheatley for some individuals in respect of periods when they were not working on cable damage. In some cases, Mr. Wheatley's response was not to reduce that element of claim but simply to move the time period in respect of which the claim was made. There were other points in respect of which it was demonstrated that Mr. Wheatley had made over generous assessments in favour of the claim. Mr. Wheatley started his task as an insurance assessor and in that capacity made many assessments which were generous to the claimant. It was no doubt quite reasonable for him to take that approach when acting on behalf of insurers willing to settle a claim on a broad basis, but he carried this approach over into the assessment of the claim in this action in a manner which led him to seek to support some quite baseless claims.

461 As for the recollection of witnesses, in respect of many of them, I share Mr. Thain's scepticism. For most of them, I do not doubt that they felt that they were spending more time on cable damage than they in fact were: they certainly were not at pains to distinguish between that proportion of their time spent on cable damage relevant to this action and the much greater part of BB claims and complaints not relevant to this action.

462 It would be an impossible task to rehearse in this judgment all the very detailed evidence given on this and other points relating to quantum.

463 On this head, I prefer Mr. Thain's assessment. Since it is an assessment, I think it should be expressed in round figures and I therefore round Mr. Thain's figure up from 61,205.80 to 62,000.

Consultant Staff

464 This category is divided into sub-categories as follows:

465 (a) CSJW

685. I find for the agreed sum of 1,440.

(b) DLE

466 The claim is for 18,916.00 divided into two items;

686. (i) In a letter dated 8 June, 1995 addressed to Mr. Rothwell of DNH, DLE made an assessment of a portion of the total of their charges paid by DNH considered by DLE to be attributable to an assessment made in mid-1993 when DLE were asked to provide an estimate for the cost of replacing cables. For that work, an estimate of hours worked by 3 individuals was made and a cost estimated at 11,427.98. That estimate was made apparently without the benefit of supporting documents, no separate invoice was raised, and Mr. Thain commented that the estimate of the cost of replacing cables has not been produced and it would have been an interesting document for other purposes. However, I accept that an estimate of the cost of replacing cables was prepared and that the estimate of the cost of producing that estimate is an honest attempt to produce a fair figure after the event for work which was charged to DNH as part of the general account of DLE. This estimate was supported by the evidence of Mr. Pearce, and because of the favourable view I formed of his evidence generally, I accept the estimate as a fair estimate.

687. (ii) In addition, 7,488.00 is charged for fees incurred in the valuations, issuing of certificates and negotiations of the final account. Again there is no contemporaneous document in support, the claim being based by an estimate made in evidence by Mr. Pearce of a portion of the total time spent. It is plain that apart from the estimate referred to in (i) above, DLE were not involved in valuation or advice on certificates for remedial work the subject of this action since DNH rejected responsibility for payment for that work, but DLE's work in valuations for payments under the contract to BB was made more difficult by the effort of "not allowing payment for the defective cabling in the monthly valuations" (to quote from the letter of 8 June, 1995). Again, I accept the evidence of Mr. Pearce that this is a fair estimate.

467 Since this head of claim is a broad estimate, I think it should be rounded off and for the DLE claim I therefore allow a total of 19,000.

(c) SVM

468 DNH claim 164,264.44 as the portion of fees paid to SVM which were allegedly attributable to cable damage. It is curious that DNH should be claiming to recover as damages sums paid voluntarily as fees to SVM. It is not alleged that the fees were paid under a mistake of fact. Indeed it is difficult to see how a mistake could have arisen, since BB's case that SVM were at fault was well known before SVM did the work in respect of which those fees were charged. Even if SVM had been found liable generally, I would not have found them liable to pay damages in respect of the fees received by them. I therefore would disallow this head of claim. But again, in case I am found to be wrong, I assess the amount of the claim.

469 In response to a request from DNH, Mr. Sworder on 12 June 1995 gave his "best guess estimate" of the cost of time expended by SVM on certain classes of work. His best guess for work related to cable damage was 77,776.20. As requested, he also put prices on certain other classes of work not relevant to this action. The total of all of the classes was 158,684.00. In his letter, Mr. Sworder wrote that it would be expensive to obtain a more accurate figure.

470 By the original Statement of Claim, DNH claimed to recover from SVM 77,776.20. That was later amended upwards to 165,264.44. In an insurance claim, DNH had claimed from the insurers, plainly mistakenly, the higher figure submitted by Mr. Sworder, namely 158,684.00.

471 The amended higher claim in this action was made without any further enquiry from SVM about the work done by them. The higher claim is supported solely by the evidence of Mr. Housam of PSA. Mr. Housam was involved in negotiations of SVM fees and he claims that Mr. Sworder's estimate is too low.

472 At a very late stage in the trial, I gave leave to the defendants to recall Mr. Sworder to give further evidence on the matter of these fees. Mr. Sworder put in evidence a very detailed analysis of his firm's time sheets showing that the correct valuation of the fees is 69,635.50. I accept that evidence in preference to Mr. Sworder's previous "best guess estimate" and the outsider's estimate made by Mr. Housam.

473 The figure for SVM's fees would be, if recoverable, 69,635.50.

(d) PSA/TBV

474 In the original Statement of Claim, this claim was put at 99,732. That claim covered the costs of 6 members of the PSA staff. The claim was then increased to 271,721.00 to cover a total of 13 members of staff. Mr. Wheatley conceded that the latter figure should be reduced to 237,740 because an uplift of 35% had been wrongly applied to expenses.

475 Mr. Thain agrees that the costs claimed were incurred on the project but does not accept that they were incurred in relation to cable damage.

476 The amended pleading was supported in the pleadings by a schedule, Schedule A taken from an insurance claim showing totally different figures. That schedule, but with different percentage proportions was put in evidence by Mr. Housam. Mr. Wheatley put in a similar schedule but with significant differences.

477 Mr. Housam was subjected to a detailed cross-examination before and after the mid-day adjournment on Day 38. That cross-examination showed great inconsistencies between one version of the claim and another and widely varying proportions attached to various individuals (The proportion for Mr. Housam's own work varied between 45% and 10%).

478 I do not accept the evidence of Mr. Housam or Mr. Wheatley on this head of claim, for reasons which will be apparent to anyone who reads the transcript of that cross-examination.

479 I prefer the evidence of Mr. Thain. He put in his own Schedule, the last page of Exhibit D16. I accept his evidence that that schedule is the best that can be done with unsatisfactory evidence, and I accordingly assess the costs of PSA at Mr. Thain's figure of 4,446.64.

(e) K&D and HEDGELAND

480 Mr. Thain accepts that 131,504.00 was paid to Kennedy and Donkin for advice about what was to be done about the cable damage. It was reasonable for the plaintiffs to take that advice and whether that advice can now be criticised is not to the point.

481 A claim is also made for 4,204.50 for advice given by Mr. Hedgeland. Mr.Hedgeland was inadequately instructed and was given insufficient time to make a useful contribution within his limited resources, and his reports, which came in various versions, could not be expected to be, and were not, useful. It was not a reasonable step to instruct Mr. Hedgeland in the manner in which he was instructed. I do not allow anything for the cost of his reports.

482 For K&D I therefore allow 131,504.00.

(f)Inspection Teams

483 354,928.00 is claimed as an appropriate proportion of the cost of all cable inspections carried out by LM's Inspection Teams.

484 It is agreed that the total cost of all electrical inspections was 407,546.66 and the total cost of mechanical inspections was 441,600.00.

485 DNH rely on apportionments supported in evidence by Mr. Julian Burton, a Quantity Surveyor employed by LM. Mr. Burton referred to a letter dated 25 August, 1995 written by Mr. Trevor Howard (an employee of James R. Knowles seconded to DNH) to McLarens. That letter refers to apportionments of 60% for electrical and 25% for mechanical inspections. Mr. Burton said that those apportionments were agreed at meetings in August, 1995 in the presence of such individuals as Leslie Rothwell, Doug Addison, Steve Nuttall and Derek Barber. Despite a later suggestion by Mr. Wheatley that SVM were represented at one of those meetings, I do not accept that SVM were a party to those discussions.

486 The inspection teams were employed by LM as a result of complaints that BB were not adequately inspecting their own work before offering it for inspection. They were employed primarily because of failures of inspection by BB. They discovered numerous defects the overwhelming majority of which were not related to cable damage the subject of this action: the "contentious remedials" forming part of BB's claim which they considered, took more than three times as much labour as relevant cable remedial works. The teams also inspected electrical works in other works packages such as HY, How Fire, lift and MBHS systems. Mr. Sworder, with whom Mr. Thain agrees, assesses the proportion for the electrical teams at 10%. I think that is on the low side, but 60% is far too high. I assess this proportion at 25%.

487 On an examination of the documents, Mr. Thain challenges the claim in respect of the mechanical inspectors. Mr. Burton said that some costs of mechanical inspections were allowed because some electrical inspections were undertaken by mechanical inspectors. Mr. Wheatley sought to justify that claim by saying that he was told by LM that it was necessary to do work on mechanical services such as ducting and sprinklers to get access to the cable trays to inspect cables. I have heard much evidence about the carrying out of cable inspections from witnesses, including witnesses from LM, but no one involved in inspections has said that it was necessary to remove mechanical services to get access. On neither of the two occasions when I visited the site did anyone point out any position where it would be necessary to remove mechanical services to gain access to cable trays. I do not accept the claim in respect of the mechanical inspectors.

488 I allow this head of claim for electrical inspectors only in the proportion 25% namely in the sum of 101,886.66.

(g) Works Contractors

489 Subsidiary works were frequently required to be done by other contractors as a result of remedial work on cables, for example where a ceiling was taken down for access, or repainting was needed to make good after the work. Under the heading, "Works Contractors", a claim is made for 206,838.00 for that work.

490 This claim is computed by reference to MCIs issued to three works contractors. The amounts involved in those MCIs are mathematically agreed, but whether they related to cable damage is in dispute. Only one of the MCIs, for 141.16, refers to cable damage. There were many different works descriptions on the MCIs. As Mr. Fletcher, a Quantity Surveyor employed by LM, wrote in a letter to Mr. Wheatley dated 27 September, 1996, "References to snagging work and defective work on MCIs ...do not necessarily refer exclusively to work arising from cable damage". Mr. Burton took a different view when he wrote to Mr. Wheatley. I prefer Mr. Fletcher's view. I have heard much evidence, mainly secondhand, about what was written on the MCIs and I can only conclude that it is impossible to do other than guess what would be a fair figure. Mr. Thain, in cross-examination, put a sum of 11,621.40 on it. The true cost was probably more than that, but on a generous view that is the maximum that he could regard as supported by the documents.

491 Fortunately, I do not have to guess at an appropriate figure because I agree with the submission made by Counsel for SVM that DNH have already been compensated for this cost, whatever it was, in a Completion Agreement dated 11 January, 1995 made between DNH and BB. The evidence of what led up to that agreement, and the agreement itself show that in reaching that agreement, DNH brought into account as counterclaims against BB the costs of the Works Contractors, and the Works Contractors claims were settled by clause 10 of the Agreement as follows:

688. "The Authority hereby waives all rights it may have against the Contractor for costs and damages arising prior to the date of this agreement for ....(ii) physical damage caused to works being executed by other parcel contractors (iii) contra and inspector charges notified by the Quantity Surveyor and/or Laing Management."

689. The Agreement was a "commercial agreement" and it is impossible to say what sums were apportioned to each matter, but these costs were taken into account and were settled and nothing remains for BB to claim from SVM.

492 I therefore assess the relevant costs of the Works Contractors at Nil.

(h) VAT

493 The total sum claimed under this head is 268,417.

494 In respect of the cable damage remedial works, DNH state that they paid VAT on the following heads and in the following amounts:

A. LML/ Agency Staff 80,926.83

B. Consultants 103,881.73

690. C. Inspection Teams 62,112.40

691. D. Works Contractors 21,496.81

495 SVM submit that DNH is not entitled to claim VAT since it is "an emanation of the Crown" and any money paid out by the Crown for VAT is recovered by the Crown through HM Customs & Excise.

496 The primary case of DNH is that it is entitled to claim all VAT expended from SVM or, to put the point another way, that it should not have to give credit for any VAT which it is able to recover from Customs & Excise.

497 Counsel for DNH submits that the rules of mitigation are relevant here, and he cites the second principle enunciated by Viscount Haldane LC in British Westinghouse Electric Co Ltd v Underground Electric Railways [1912] AC 673 at 689:

692. A second principle "imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps."

498 Counsel also submits that it is a further principle of mitigation that a plaintiff is not required to sacrifice any of his property or rights in order to mitigate his loss: see Elliott Steam Tug Co v Shipping Controller [1922] 1 KB 127 at 140-141. The standard on a plaintiff is not a high one, since the defendant is a wrongdoer.

499 Counsel for DNH accepts that the Plaintiff in this case is in fact the Crown of which the DNH and Customs & Excise are both simply "emanations".

500 Counsel submits that if the DNH is treated as though it has reclaimed any VAT which it is entitled to, the overall effect is that the Crown loses out to that extent since Customs & Excise will have effectively paid that money over to the DNH. I am afraid I do not understand this latter submission, unless it be based on an assumption that the DNH is not part of the Crown, which is plainly wrong.

501 Nor do I agree that principles of mitigation of damage are relevant. The issue is not whether the Crown should take reasonable steps to mitigate its loss but whether in the ordinary course of events the loss is suffered at all. The governing principle is the first principle enunciated by Viscount Haldane in British Westinghouse Electric at page 689:

693. "As far as possible, he who has proved a breach of a bargain to supply what he has contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed."

694. The question is whether the Crown should give credit for moneys which will in any event come back to the Crown in the ordinary course.

502 Counsel further submits that in any event, on any view, the DNH is entitled to recover part of at least of the VAT which it has paid. The situation is that the DNH is not eligible for VAT registration but that it should be able to claim a refund of all the VAT charged to it under the provisions of S.41(3) of the Value Added Tax Act, 1994 which provides that most government departments can claim refunds of VAT charged to them on most supplies of goods and services. The sub-section is qualified by the words "if and to the extent that the Treasury so direct" and the Treasury make directions under this sub-section from time to time and publish them in the London Gazette. The current Treasury direction, published on 12th September 1997 provides that the refund is only of VAT charged on services of a description in List 2 or of goods closely related to such a supply of services. One of the items which does appear in List 2 is "professional services, including those of any manager, adviser, expert specialist or consultant" (Item 52). Accordingly the claims for VAT in respect of: LML/ Agency Staff; Consultants; and Inspection qualify. By contrast, the VAT paid in respect of the Works Contractors does not fall within any of the List 2 items and so cannot be reclaimed. Accordingly, the DNH would limit its claim in respect of VAT against SVM to 21,496. It seems to me that the provisions to which counsel refers are merely arrangements for the disposal of funds between government departments, and are irrelevant to the submission that the Crown should be treated in this matter as in others as one whole body. I therefore reject that submission.

503 SVM do not contest that DNH will have paid VAT on these amounts. It is however submitted that the recipients of VAT receive it only as trustees for the Crown and the VAT will find its way back to the Crown. Therefore, it is submitted, any money paid by the Crown (as DNH) will come back to the Crown (as HM Customs and Excise) and therefore the Crown has suffered no loss by paying VAT.

504 So far as I am aware, and so far as counsel are aware, this is the first time such an argument has been advanced against the Crown and because of its novelty the proposition is startling.

695. However, the logic of the argument is compelling and I see no answer to it. If damages were recoverable in this action, I would not allow the claim for VAT.

HIS HONOUR JUDGE BOWSHER Q.C.

 

APPENDIX A

ABBREVIATIONS

696. BB Balfour Beatty (Electrical Contractor, the First Third Party)

697. BL New British Library Project

698. BEMS Building Energy Management System

699. BL British Library (End User)

700. BLP British Library Project

COW Clerk of Works

701. CP3 Completion Phase

702. CR Balfour Beatty drawing identification reference in relation to Kennedy & Donkin cable inspections

703. CSA Cross Sectional Area

704. CSJW Colin St John Wilson & Partners (Architect)

705. DLE David Langdon & Everest (Quantity Surveyor)

706. DNH Department of National Heritage (The Plaintiff)

707. DOE Department of Environment

708. HY Haden Young (Mechanical Contractor)

709. IEE Institution of Electrical Engineers

710. K&D Kennedy & Donkin (Consulting Engineers)

711. LM Laing Management Limited (Construction Manager, the Second Third Party)

712. LMQA Laing Management Quality Assurance

713. LO Liaison Officer

LV Low Voltage

714. MBHS Mechanical Book Handling System

715. M&E Mechanical & Electrical

716. MC Management Contractors

717. MCI Management Contractor's Instructions

718. MICC Mineral insulated copper cable

719. MRE Mechanical and Electrical Resident Engineer

720. OAL Office of Arts and Libraries

721. OED Others Employed Direct

722. Parcel 4235 The designation for general electrical works carried out by BB

723. PASC PSA/ACE Standard Conditions of Engagement for M&E Engineering Commissions. Second Edition 1981.

724. PM Project Manager

725. PSA Property Services Agency (Project Manager - later TBV)

726. PSA Property Services Agency - PSA Projects Limited

727. PVC Polyvinyl Chloride (cable insulation material)

728. RCCB Residual current circuit breakers

729. RE Resident Engineer

730. SMACS Snagging Management and Control Sheet

731. SO Superintending Officer

732. SOI's Superintending Officer's Instruction

733. SRIS Science reference information service [library]

734. SVM Steensen Varming Mulcahy (Mechanical & Electrical Services Designer, and the Defendant

735. SQS Site Query Sheet

736. TBV Tarmac Black & Veitch (Project Manager - formerly PSA)

737. VAV Variable Air Volume

738. WSA WS Atkins (Consulting Engineers)


© 1998 Crown Copyright


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